[2003] VCAT 1619

In permit application no. WH/13650, a permit is not granted and no permit is to issue.

Mr A Southall QC instructed by E Zagami Pty Ltd appeared for the Applicant for Review. He called the following persons to give evidence:

* Mr G Wilson, Director of Student Housing Australia Pty Ltd.

Mr N Rintoul of Deacons Lawyers appeared for the Responsible Authority.

Ms V Clayton and Dr T Randle appeared on their own behalf and on behalf of a large number of Respondent Objectors as set out in their submissions and/or by way of letters of authority provided to the Tribunal. Mrs E Meredith, Secretary, appeared on behalf of the West of Elgar Residents' Association Inc.

Dr Randle tendered a written submission by Mr G Treloar and Mrs Clayton tendered a written submission by Mrs L Crisfield (No. 279 Station Street).

1. This is an Application under Section 79 of the Planning and Environment Act 1987 brought by Melbourne International Student Accommodation against the failure of the City of Whitehorse ("the Council") to determine permit application no. WH/13650 within the prescribed time. The Application for Review was lodged on 25 June 2003.

2. The subject site is located on the north-west corner of Riversdale Road and Station Street. It has a frontage to Riversdale Road of 26.7 metres, a frontage to Station Street of 46.62 metres and a site area of approximately 1,241 square metres. There is a splay in the form of an easement to the south-east corner of the site. The subject site was previously used as a service/petrol station and remnants of that use remain in the form of the concrete apron and structures. Three crossovers are associated with that use, two to Station Street and one to Riversdale Road. There is no vegetation on the land and there is an existing 2.1 metre high brick retaining wall on the west boundary. The site falls from south-west to north-east by some 3 metres.

3. The property to the west of the review site, at Unit 1/No. 1217 Riversdale Road, is a single storey brick dwelling with a rear garage. There is a separate single storey unit to the rear of this site (No. 2/1217 Riversdale Road) with a garage abutting its side boundary. That garage is located beyond the northern boundary of the review site.

4. There are several mature trees near to the east boundary of No. 1217 Riversdale Road, including a liquidambar, two lillypillys and two eucalypts (lemon scented gums). These trees are identified in a written report prepared by Mr Galbraith.

5. Further to the west are five units on the land at No. 1215 Riversdale Road.

6. Both of the lots to the west of the review site abut the Box Hill Tennis courts, to their rear or north. The tennis court complex extends to Cyril Street and Station Street. It has floodlights.

7. To the north of the review site, at No. 279 Station Street, is a single storey dwelling with a rear bungalow. Further to the north is a recent unit development comprising four double storey townhouses in two attached pairs.

8. To the east of the subject site, on the north-east corner of Riversdale Road and Station Street is a service station. To the south, on the opposite side of Riversdale Road, is the Box Hill South family centre.

9. Riversdale Road and Station Street are busy main roads that carry bus services. The intersection is controlled by traffic signals and includes a left-turn slip lane adjacent to the review site. The Riversdale Road tram service terminates some distance to the west, at the Elgar Road intersection.

10. A survey plan was submitted with the permit application and this includes the heights of buildings on adjacent sites. Information updated on 3.10.03 was also tendered.

11. It is proposed to use and develop the land for the purpose of a three storey residential building for student accommodation. The proposal is aimed toward international students attending facilities such as Deakin University around 1-1 ½ kilometres to the south.

12. The proposal provides 15 on-site basement car spaces to service 61 bedrooms in the form of 24 single or multi-roomed units. Each unit comprises living, kitchen and dining areas, and a bathroom. Two and three bedroom units have an additional toilet.

13. The existing crossovers to Riversdale Road and near to the intersection on Station Street would be removed with access to be from a crossover at the north-east end of the site. The basement level also comprises a rubbish bin area, bicycle store, laundry, storage and communal recreation facilities facing to Riversdale Road.

14. The building is designed in a U-shape around a north-facing central courtyard. I refer to the three sections of the building as the south, east and west wings for convenience. The east wing fronts Station Street and the south wing fronts Riversdale Road. As described in Mr Czarny's evidence, the development would have a maximum height of 11.05 metres above the Station Street footpath. The eave height to the west elevation is proposed to be 7.42 metres. The height of the north elevation of the east and west wings above ground level varies. The wall height to the north-east corner, where the second level of the east wing is recessed, is around 7.6 metres with the upper-most level having a wall height of around 9.6 metres at its closest point to the north boundary.

15. The building would have a setback to Station Street of 5 metres with some elements protruding closer to the street at a setback of 3.7 metres. The setback of the ground floor to the south boundary (Riversdale Road) is proposed to be 6 metres, with metal screening devices set 0.5 metre toward the street. The setback of the ground floor to the west boundary would be 1.2 metres for the majority of the 39 metre wall length, with some elements constructed to the boundary and one section setback by 1.8 metres. The north facing walls are proposed to be setback 1.2 metres.

16. The first floor replicates the footprint of the ground floor with the setbacks from the boundaries being almost identical. Screens along the west elevation would sit forward of the building façade.

17. The second floor has an increased setback from the west boundary to 2.46 metres and a partial north boundary setback of approximately 4.3 metres associated with the north wing. The west wing is setback from the north boundary by 1.2 - 1.46 metres at the upper-most level.

18. The external building features include vertical modular elements. The roof comprises angled skillion elements of colourbond construction. The external materials are proposed to include masonry walls with rendered finishes, lightweight sheet cladding, and metal slatted batten privacy screens to windows.

19. A landscape plan was submitted with the application. It is described in Mr Thompson's evidence. It proposes pittosporum along part of the north boundary, evergreen planting along part of the west boundary, landscaping within the courtyard and feature ornamental trees along the street frontages.

20. I was advised by Mr Rintoul that the site has been undergoing a process of remediation to decontaminate the land given its previous use. The application included an environmental audit assessment.

21. On the second day of the Hearing, Mr Southall tendered a revised concept for the west wing of the development through the evidence of Mr Manton. That showed the deletion of two units (2.7 and 2.8) with Unit 2.6 modified to become a three bedroom unit instead of a single bedroom. The setback of the third level of the west wing from the north boundary would be 18-21 metres so that this wing would be two storey adjacent to the private open space associated with Unit 2/1217 Riversdale Road. Other changes suggested during the course of the Hearing, including in statements of evidence circulated prior to the Hearing, included:

* varying setbacks that do not comply with Clause 55 (Mr Zagami).

* modifying the boundary wall or fixing the retaining wall to protect trees to the west of the site (Mr Galbraith through Mr Thompson's evidence).

* setting back the western wing (Mr Zagami) or moving the entire development eastwards by around 0.5 - 1 metre (Mr Czarny) if the west setback is considered to be a concern. This would allow vegetation to be placed in soil if the basement is also moved off the boundary by reducing the size of the stores (Mr Czarny).

* modifying the proposed landscape treatment (Mr Czarny).

22. The subject site is located in a Residential 1 Zone pursuant to the provisions of the Whitehorse Planning Scheme ("the Scheme"). Pursuant to Clause 32.01, a permit is required to use and develop the land for the purpose of a residential building. Decision guidelines are set out in the Clause. The provisions of Clause 55 apply.

24. Car parking requirements for a residential building are set out at Clause 52.06. Pursuant to the table to the Clause, 61 car spaces would be required to service 61 rooms. The proposal seeks a reduction in car parking to 15 spaces and the decision guidelines set out at Clause 52.06 must be considered.

25. Station Street and Riversdale Road are both located in a Road 1 Zone. The permit application was referred to VicRoads. No objection was offered to the proposal, subject to a number of conditions as set out in correspondence dated 7 August 2003 to the Responsible Authority. Some of those proposed conditions are in dispute.

26. Other Clauses of the State and Local Planning Policy Frameworks are relevant to the assessment of this Application, including Clauses 15, 16, 18, 19, 21 (Municipal Strategic Statement) and 22.04 (Tree Conservation local policy). The general decision guidelines at Clause 65 must also be considered.

27. Melbourne 2030 has been taken into account by the Tribunal. It includes Deakin University within a specialized activity precinct.

28. The Council is currently preparing an Urban Character Study and has adopted a Housing Study. These were referred to in some submissions and evidence. Previous Urban Character Studies date from 1996 and 1997.

29. I have considered the submissions and evidence presented by the parties at the Hearing, assisted by my inspections, having regard to the applicable planning policies and objectives of the Scheme. Other written statements of grounds and submissions forwarded to the Tribunal at or prior to the Hearing have also been taken into consideration.

30. In these reasons, I have not sought to recite the submissions and evidence in detail, as the comprehensive written material is retained on the Tribunal's file. The key questions for determination in this Application are:

s is the site an appropriate location for a student accommodation facility?

s does the proposal represent an acceptable response to the streetscapes and character of the area?

s would the proposal have unreasonable impacts on residential amenity?

s are traffic and parking arrangements and impacts acceptable?

31. Before addressing those matters, I refer to the applicable policy context.

32. A consistent theme flows through the applicable policies of the State and Local Planning Policy Frameworks focussing on site responsive design that respects and enhances neighbourhood character. A second theme emphasises the role of vegetation in contributing to the physical environment. A third element is that "Higher density housing" is encouraged close to fixed rail public transport nodes, a range of shopping, recreation and community facilities. More specifically for the purposes of this Application, it is significant that higher density housing "close" to "higher education facilities" is specifically encouraged (Clause 21.06-3). I believe that this reflects the recognition given to regional educational facilities within the City of Whitehorse and the increasing number of international students (Clause 21.02).

33. There was some debate in the Hearing about the applicability of the third element of these policies to a "residential building" when compared with conventional higher density housing forms such as apartments or townhouses. It was also highlighted by those opposing the proposed facility that the review site is not located on fixed rail and is not in close proximity to shops, and that it is some distance from Deakin and other tertiary facilities.

34. However, it is relevant that the site is readily accessible to open space and bus services (albeit restricted after hours and at times on weekends). Moreover, for an educational facility, student housing within a kilometre or so is relatively proximate and manageable given the availability of bus services and easy walking/bike routes via the street network and open space trails.

35. Objectors contended that the proponent seeks to gain unreasonable credit for the use, that is, student accommodation should not mean that other objectives relating to neighbourhood character are set aside or compromised. I agree that I must give weight to all Scheme objectives including those relating to land use and those concerned with built form. In my view, it is significant that the review site is located at the junction of two main roads where more intense building forms can often be accommodated more readily than on a site centrally within an established residential area as there are fewer sensitive abuttals with the potential to create amenity impacts. Indeed, it is the relationship between the proposal and its neighbouring properties and potential off-site impacts that are determinative in this Application.

36. This is an intensive and high density housing proposal when assessed against the existing intensity of housing in the locale. But that does not mean that the proposal must be automatically regarded as inappropriate. The land clearly has attributes which make it a candidate site for a significant residential-based scheme. These include its zoning, the relatively large size, the corner position on two busy roads, absence of vegetation, no awkwardly positioned easements and the availability of all infrastructure services. The land is, nonetheless, subject to constraints, notably the consideration of the slope and adjoining residential activities that must be taken into account in the preparation of a suitable design response.

37. I find that the proposed use of the land as student accommodation is entirely appropriate. This is a form of residential use that is wholly suitable in a residential zone, regardless of whether students are mainly drawn from local, inter-state or international home-bases. It is also suitable in the context of the number of educational institutions in the area, notably Deakin University, as recognised in the provisions of the Planning Scheme. In a wider perspective, this proposal is consistent with policies that encourage the consolidation of existing urban areas, additional and more diverse housing opportunities and better and more efficient use of infrastructure.

38. The proposal seeks to re-use a site that was otherwise in non-residential use. A use that brings the site into conformity with the primary purpose of the zone is a positive outcome.

39. That sites on other corners of the intersection of Station Street and Riversdale Road are used for community-based activities and a local service station is not particularly significant in my view, other than reinforcing an often-accepted planning principle that main road corner sites at the edge of residential precincts are often appropriate for non-residential activities that are required and complement an area. This adds weight to the acceptability of the review site for a commercially-based student accommodation facility.

40. There was a concern in some submissions that the building may not remain in use as student accommodation and could be converted to residential units. The permit application is for a residential building, not dwellings as defined by the Scheme. 'Residential building' is a use defined in the Planning Scheme, at Clause 74. If approval was granted for the current Application, then the use and development of the subject land would be required to conform with the permission granted, as a residential building for student accommodation. A Section 173 agreement could be included by way of a permit condition, as was proposed by the Council in this case. If there is non-compliance with a permit or conditions attached to a permit, then it is open to the Council or other affected persons to pursue enforcement proceedings. If it was desired that the building be converted for use for another purpose, then that would be required to comply with the Scheme's provisions and apply for any necessary permission(s) including those relating to car parking.

41. There is general agreement between the parties that the character of the area comprises predominantly single storey buildings with some two storey forms and some unit development. The topography is a significant contributory element as is the landscape character both within the public and private realms. Dwelling styles vary although there is a predominance of detached buildings with eaves and pitched roofs with a range of construction materials. These elements are generally referred to in both the 1997 Urban Character Study that includes the review site in Area 4 (Garden Suburban) and the more recent 2002/03 draft Neighbourhood Character Study that includes the review site in Character Area 9.

42. The main concerns relating to the proposal focus on the scale, mass, bulk and in particular the three storey form. The mass positioned toward the north and west of the site was a specific issue raised in many submissions, although some concern was also expressed by the Council and Objectors about the limited front setbacks and the treatment of the north and east elevations. These submissions were challenged through the evidence of Mr Manton, Mr Zagami and Mr Czarny. Mr Manton explained that the design has sought to respond to the intersection and that the north and west setbacks are acceptable given the vegetation, driveway and garage to the west and the vegetation to the north.

43. The architectural styling drew some criticism given the difference the design may present when read with existing building forms. I find that the overall presentation and styling is well considered. It would present a façade and roof scape with complexity that articulates and modulates the form of a large single building. Adequate area is available for landscaping to the street edges and corner that would assist to blend with the more spacious settings on other corners. The north elevation is a specific concern that I refer to below. Timber screening elements may present a softer form when contrasted with the metal finishes and that could readily be achieved.

44. A development on this site must be considered in the context of the visual presentation of the intersection, the relationship to both streetscapes and the neighbourhood. I address each in turn.

45. The intersection of Station Street and Riversdale Road has an open character given the landscaped setbacks and/or open form of development to each corner. The topography is also a significant influence in how a development on the review site may be perceived. That the other corners are open or quite generously landscaped does not, in my view, demand the same response to the subject site. Provided that a development establishes a reasonable transition to the single and double storey forms it abuts or that form a backdrop to the building, and that landscaping is available to soften the form, a three storey form to the corner is acceptable. Local residents had some concern about the creation of a "landmark" at this corner. I accept that there is no policy imperative to create a landmark on this site, but the prominence of the intersection means that most developments would be obvious and act as a "marker".

46. I find that the design achieves an acceptable outcome when viewed from various vantage points around the intersection. The form does not rise significantly above other elements that may be read with the building. In this regard the design appropriately takes advantage of the low position of the review site and the backdrop formed by the landform, landscape and buildings. There is adequate area for planting to integrate the form with the landscape character that is evident without the need for deeper front setbacks, although I am not persuaded that reducing the front setbacks would be desirable. I have specific concerns about the transition to the north, which I return to shortly. The landscape treatment proposed by Mr Thompson is quite dense as it presents to the street and intersection and while I have no difficulty with it in principle, other approaches may well also be acceptable.

47. I next refer to each streetscape more specifically. In my view, the proposal presents a good relationship and a graduated response to the west, along Riversdale Road. This is primarily because of the slope of the land with the lowered building form achieved by benching the ground floor into the site, as well as the angled roof form. The southern elevation is adequately articulated and the stronger corner element is an acceptable urban design response. The development would sit well forward of the front dwelling on the land at No. 1217 Riversdale Road, but that adjacent residence has a deep setback. The height of the proposed development is not significantly greater than the high form of the single storey dwelling, based on relative levels again reflecting the influence of the landfall to the east.

48. The eastern elevation extends along the longer street frontage. The mass along this frontage was criticised on the basis that it is insufficiently articulated and too bold. I am not persuaded that the design response is unacceptable in totality, although setting back or breaking the upper level into sections would result in a less imposing form.

49. Related to this is my concern about the transition of the proposed development to the single storey and then double storey buildings to the north. An acceptable design response would transition from the corner to the lower forms to the north. The proposal has some of the highest elements to the north and terminates with an abrupt double storey wall (elevated as a result of the slope) and further accentuated by a limited setback to the third level and a strong roof element. A more graduated response is necessary.

50. Moreover, I accept the Council's submission that the northern elevation presents a stark appearance given the expanse of solid wall and the height of that wall. Putting aside issues of energy efficiency, which I discuss later, the presentation is not responsive and would result in a solid wall along the northern boundary. Even with the separation created by the central courtyard, and the potential for some additional planting, the wall expanses are too great in my view and undue reliance is placed on landscaping on the adjacent site. Varying the materials would not resolve this concern.

51. In neighbourhood character terms the proposal is squeezed at the rear (north-west) of the site. While it is notable that the form is set down into the land, the visual bulk presented to adjacent sites is considerable given the narrow setbacks from the boundaries and the limited recession of the upper levels of the north-west wing. Screening devices would accentuate the presence.

52. The form and mass adjacent to the single storey dwellings is not typical for the locale and is not an outcome that is acceptable even taking into account the current condition of the land. In this regard, the design borrows too much from the landscape and setbacks on adjacent sites rather than creating its own setting along these most sensitive interfaces. Changes proposed to the west wing (tendered at the Hearing) address some matters but do not fully resolve the concerns. There is also a consequential problem of a long stretch of flat roof that, in my view, detracts from the architectural composition.

53. The landscape plan is based on the concept of retaining existing trees and shrubs on adjacent sites and Mr Galbraith's report addresses the most critical potential impacts on trees #4 (lillypilly) and #5 (lemon-scented gum). I do not need to explore this matter is any detail and consider that protection of healthy trees on adjacent sites is a reasonable objective.

54. The main issues in relation to potential off-site amenity impacts raised in submissions were overlooking, overshadowing and visual bulk.

55. I have already addressed visual bulk to some extent above. It is necessary to add that the setbacks along the north and west elevations do not meet the standard of B17 of Clause 55. The form is, in my view, imposing and quite overwhelming to the immediately adjoining properties. I have noted the presence of trees, driveways and garages to the adjacent sites that have in Mr Manton's evidence influenced the design response. However, I am not satisfied that the presentation of the three storey form to both Nos. 279 Station Street or the two dwellings at No. 1217 Riversdale Road is acceptable.

56. Both properties would be presented with a three storey mass, at heights of 7-8 metres within around 1.2 metres and no greater than 2.4 metres from the boundary. That main bulk would be apparent to the private open space and some windows of Unit 2 on No. 1217 Riversdale Road as well as the front dwelling on the same lot. The trees on the adjacent lots are mixed in form and often have a high canopy with a clean trunk, thereby limiting their screening benefits.

57. Changes suggested by Mr Zagami included increasing some setbacks to comply with Clause 55 (refer to envelope shown by Mr Greenwood for the west elevation). However, I am not satisfied that this would resolve my concerns. That is, setting back the north elevation by up to 0.5 metre and setting back the second storey of the west wing along its northern elevation to 3.8 metres, would not adequately relieve the visual bulk when considered with the narrow side setbacks and retaining wall form that restrict planting opportunities. Deleting part of the upper storey, as shown in the plans tendered on Day 2, would reduce the mass but would retain an unrelieved solid wall with a flat roof at the same narrow setbacks. Moving the west wing slightly forward is not adequate to address my concerns nor is reducing the front setback for much of the development by a metre.

58. The main problem is that the design includes a central courtyard that facilitates a level of internal amenity for the development but has the consequence of forcing the higher building elements to toward the site boundaries. This is less of an issue to the street frontages but is a critical matter at the most sensitive rear portions of the review site.

59. As I have said before, while some planting could be provided on the review site, the proposal relies more heavily on planting on the adjacent sites which, in my view, would not adequately screen or soften the proposed form. Moreover, I consider that the proposal seeks to borrow from and imposes too much on these adjacent properties.

60. Overlooking and overshadowing to adjacent properties were raised as issues in some statements of grounds but I am not persuaded that the proposal should fail on either ground and the standards of Clause 55 appear to be met. The proposal has effectively designed out overlooking by window positioning, screening measures and the use of solid walls. There may be some increase in shadowing to the west in the morning but that is within acceptable levels when also taking into account that the main impact is to a driveway that would to some extent already be shaded by existing trees.

61. Noise was raised as a concern in some submissions but I would not find against the proposal for that reason.

62. The Council and Respondent Objectors strongly opposed the reduction in car parking sought in this Application. They challenged the reduction on the basis that students can not be presumed to have no vehicle, whether domestic or international students. Among a range of matters, they also referred to the limited nature of public access and late night public transport services that would influence the desire by students to have a car. The Applicant relied on the evidence of Mr Higgs and experience of Mr Wilson to respond to these concerns.

63. I have no issue with the number of car spaces proposed to service the development as a student accommodation facility including options for visitor parking. I found the evidence of Mr Wilson of low or no vehicle ownership by international student occupants in like facilities to be persuasive. Moreover, his evidence is consistent with the empirical review undertaken by Mr Higgs and the findings of this Tribunal in other Applications involving accommodation primarily for international students (eg. 141WR Pty Ltd v Stonnington CC and Ors [2002] VCAT 250).

64. Even if more students were based locally, rather than being from overseas, I am satisfied that the reduction of car parking sought by this Application is acceptable. I would find differently if the same proposal was for a conventional housing scheme.

65. I am persuaded that manoeuvrability within the car park is acceptable based on Mr Higgs' evidence.

66. The safety of the proposed access arrangements was another key concern raised by those opposing the Application. VicRoads submission referred to a number of casualty accidents at the intersection and the desire by the authority for left-turn in and out of the review site; a matter opposed through the evidence of Mr Higgs.

67. I would not reject the proposal for reasons relating to traffic generation. With 15 cars on-site, the level of traffic generation is relatively low, particularly when contrasted with the volume of vehicles likely to have been associated with the previous service station use or other forms of commercial or residential activity.

68. The proposed position of the driveway is at the safest point available on the site. I consider that left-turn in and out of the site may be preferable from a safety perspective although for this use I accept Mr Higgs evidence that may not be essential given the low traffic generation and the nature of the use.

69. Sightlines were the subject of discussion during the course of the Hearing and again this is a matter that can be resolved, based on the evidence of Mr Higgs in relation to the re-positioning of mail boxes to the south of the driveway. Ramp grades could also be resolved.

70. Several issues were raised in submissions about the internal amenity of the proposed student accommodation units. I briefly refer to each in turn.

71. First is the adequacy of private open space and communal open space. As a student accommodation facility, I find that the volume of open space provided is acceptable when taking into account the public recreational facilities available in the locality.

72. Second is access to sunlight within the courtyard. Certainly sunlight access would be limited at times but I do not find that the proposal fails on this ground or requires change. The courtyard has an ideal northern orientation and would provide adequate daylight access to rooms facing toward it, albeit rooms deep within the southern portion of the building would have less daylight access compared with those toward the northern section of the east and west wings.

73. Third is energy efficiency, in so far as there is minimal northern aspect to the units and most notably those on the northern portion of the site at the ends of the west and east wings. I accept that each room can provide at least a four star energy rating based on the energy rating report submitted. However, I expect that more could be made of a northern aspect without compromising the amenity of the adjacent residents.

74. Fourth is a matter on which I remark in passing, relating to the ground level rooms along the west boundary that have access to daylight but would be quite dark given the retaining wall form and location of planting.

75. Increased setbacks would assist to improve the outlook and daylight access for rooms along the western portion of the site. There is also a need to address the problem of no access being available to some of the landscaped areas for maintenance purposes.

76. Fifth is plant and equipment. For example, the vent to the basement is located near to the western boundary and the potential impact on adjacent residents would need to be carefully considered in term of visual and acoustic outcomes. This was not addressed in any detail at the Hearing and could be the subject of permit conditions.

77. There are many meritorious elements associated with this proposal. The use of the land for student accommodation is appropriate and I find the site is suitable for a relatively bold yet quality architectural response. The principal failing of this proposal is in terms of its interface with the properties to its north and west, most notably in terms of off-site amenity impacts and, with respect to streetscape considerations, the presentation and transition to the north. I am not persuaded that the development should be rejected for reasons relating to car parking and I expect that traffic and access issues could be resolved.

78. I have carefully considered whether the changes necessary to produce a more graduated response to the north and west, including deeper setbacks from side boundaries and a more recessive building form, can be achieved by way of permit conditions. I have concluded that they can not, based on the current proposal given impacts on the central courtyard and the layout of other parts of the building. Despite changes proposed by the proponent during the course of the Hearing, more is required to achieve an acceptable outcome in terms of the current provisions of the Planning Scheme. That should properly be through a fresh permit application and I have endeavoured to provide some guidance to assist that process should it be pursued.

79. Consequently, I find that the Application for Review should not be allowed and I will order that a permit is not granted and no permit is to issue.