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[2001] VCAT 1612
mixed. Tribunal directed the Responsible Authority to issue the permit for external alterations to 518-522 Chapel Street subject to amended and additional conditions (including modified facade treatment and...
Merolli sought review of conditions attached to a permit for external works to the Imperial Hotel, South Yarra. The Tribunal allowed substituted facade plans but required the first-floor treatment to better reflect the existing arched-window character and the ground floor to provide an openable glazed wall, accepted that the airlock issue was resolved by consent, rejected a late attempt to add a 210-person patronage limit, and deleted a condition requiring the upper floor to be converted to residential accommodation because the hotel benefited from existing use rights under the planning scheme. The Tribunal also refused to impose car parking requirements that would undermine those existing rights, and directed the Responsible Authority to issue a permit with amended conditions including specified acoustic measures.
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This case concerned a review by the permit applicant, Mr R. Merolli, of a number of conditions attached to a planning permit for external works to the Imperial Hotel at 518-522 Chapel Street, South Yarra. The Responsible Authority was Stonnington City Council and an objector, Mr S. Kipen, was also a party. The matters originally in dispute included multiple permit conditions, but by the time of hearing most issues were resolved by consent between the parties. The hearing was therefore narrowed to three “bullet point” matters in Condition 1: (1) the design of the first floor Chapel Street facade; (2) the reinstatement of an “airlock” arrangement at the Palermo Street entrance; and (3) a requirement that the upper floor layout be altered to show only residential guest accommodation and staff amenities (see [1.3]–[1.5]).
Key interlocutory events included the Tribunal granting leave to substitute revised Chapel Street elevation plans (three drawings dated 18 April 2001) with no objection from the Responsible Authority ([1.6]), and the Responsible Authority making an unanticipated application at the hearing to add a condition capping patronage at 210 persons ([1.7]). The Tribunal refused that late application because the permit applicant lacked notice and because existing permits already limited patronage to 210, rendering the suggested condition unnecessary and duplicative ([1.8]–[1.9]).
On the substantive points the Tribunal accepted engineering evidence that the existing Chapel Street facade was structurally unsound and that rebuilding was more efficient and effective than expensive strengthening work ([3.1]). The architect’s proposed modern facade design was discussed at length. The Tribunal expressed that it could accept opening the ground floor to the street as a desirable urban activation measure but considered that the first floor treatment should “more nearly reflect the existing facade with its arched windows” while the ground floor could have a glazed openable sliding wall to allow pedestrian access ([3.8]). The airlock reinstatement was resolved by consent and incorporated into draft conditions ([4.1]).
Crucially, the Tribunal accepted the permit applicant’s submission that the hotel use benefitted from existing use rights under the planning scheme and that, accordingly, a condition seeking to force the upper floor to residential use could not be imposed where the application related to external works only and gross building area was not being extended ([5.1]–[5.6]). By reason of those existing use rights the Tribunal also refused to impose additional car parking obligations as a condition ([5.5]). The Tribunal therefore deleted bullet point 6 of Condition 1, allowed substitution of the revised facade plans subject to modifications and ordered the Responsible Authority to issue a permit with amended conditions including detailed acoustic requirements agreed with the objector (Orders; [6.4]–[6.5]).
The decision rests on a combination of facts (structural unsoundness of the facade) and the legal effect of existing use rights under the planning scheme.
Structural necessity for façade replacement: The Tribunal accepted the permit applicant’s engineering evidence that the existing Chapel Street façade was structurally unsound and impracticable to retain without very substantial and costly strengthening works. That factual finding justified permitting a replacement façade rather than insisting upon retention at all costs ([3.1]).
Balancing design change with streetscape character: The Tribunal applied planning policy sensibilities (MSS objectives and relevant planning policy emphasis on urban character) when evaluating the architect’s modern façade proposals. While openable glazed frontage at ground level was seen as consistent with contemporary urban activation objectives, the Tribunal required the first floor to reflect the existing arched-window character to maintain congruity with the splayed corner and Palermo Street elevation ([2.3]; [3.2]–[3.8]).
Existing use rights as decisive legal principle: The principal legal reasoning concerned the effect of existing use rights. The Tribunal accepted the permit applicant’s point that the hotel had the benefit of existing use rights under the planning scheme (discussed as clauses 63.05 and 65 in the reasons) and that an internal rearrangement which did not enlarge gross building area did not require a permit for the continuation of the hotel use. On that basis the Tribunal held it could not properly impose a condition that sought to convert the upper floor to residential accommodation and thereby curtail the established hotel use ([2.2]; [5.4]–[5.6]).
Car parking: The Responsible Authority’s argument that a net increase in lounge area entitled it to require car parking was rejected for two reasons. First, the property’s existing use rights exempted it from the cited parking provisions; second, there was no coherent adopted policy on car parking in the precinct sufficient to justify imposing a restrictive condition. Hence car parking requirements could not be used to defeat existing use rights ([5.5]).
Procedural fairness and redundancy: The Tribunal refused the Responsible Authority’s late attempt to add a patronage-limiting condition because the permit applicant had no prior notice and because an identical patronage limit already existed on other permits, making the new condition unnecessary and procedurally unfair to impose at that stage ([1.7]–[1.9]).
Taken together, the Tribunal’s approach balanced factual findings (unsafe facade), discretionary planning judgment (design modulation to respect character and encourage street activation), and legal constraints (existing use rights that protect the hotel’s continued operation and prevent retrospective imposition of conditions that would undermine those rights).
Before this decision: The Tribunal applied ordinary planning law principles, local planning schemes confer rights and responsibilities and the Tribunal has discretion to impose conditions on permits consistent with the scheme. Existing use rights are a well-known feature of planning regimes and operate to protect established uses from new controls that would displace them. The judgment does not purport to create novel legal doctrine but applies those established principles to the facts.
After this decision: The case reiterates two practical points for practitioners in Victoria:
A Responsible Authority must be careful not to attempt, by condition on a permit for external works, to negate existing use rights that permit continuation of a use where the works do not enlarge the gross building area. The Tribunal will scrutinise whether a condition is in substance an attempt to change the use protected by existing rights ([5.4]–[5.6]).
Design solutions to structural necessity will be permitted but the Tribunal will require a balance between contemporary design initiatives and the retention of key streetscape character elements; an outcome may be to permit a new façade while prescribing elements which tie it back to the existing neighbouring elevations ([3.1]–[3.8]).
The practical consequence is reinforcement of existing use rights as a powerful defence to conditions that would materially change an established use, and a reminder that procedural fairness at hearing matters where new conditions are proposed without notice.
Passage: “All parties accept that the existing Chapel Street facade is structurally unsound and is in dire need of attention.” ([3.1])
Passage: “I agree with the permit applicant's contention.” ([5.4])
Passage: “I do not consider that requirements for the provision of car parking spaces can be imposed upon the permit applicant because of those prior existing use rights.” ([5.5])
Passage: “...the facade proposal on the first floor should more nearly reflect the existing facade with its arched windows whilst at the ground floor level the facade should have a glazed openable wall of sliding panes to allow pedestrian access to Chapel Street.” ([3.8])
Passage: “Accordingly, given that the permit applicant was taken by surprise ... I denied the application ... to limit the number of persons on the site to 210.” ([1.8])
A proposal that involves replacement of structurally unsound fabric where the permit applicant seeks to reconstruct a façade: the Tribunal will accept replacement where retention is impractical and may permit modern design provided it is tempered to respect streetscape character ([3.1], [3.8]).
Cases where a Responsible Authority attempts to use permit conditions attached to works permits to change or restrict an established use that benefits from existing use rights: the Tribunal will scrutinise whether the condition is, in substance, an attempt to defeat existing use rights and will resist such conditions ([2.2], [5.4]–[5.6]).
Situations where a Responsible Authority attempts to impose car parking or other use-related requirements as conditions on a permit for external works to an established use: if the use has existing rights that exempt it from those scheme requirements, the Tribunal will be reluctant to impose those obligations by condition ([5.5]).
Late, unanticipated conditions proposed at hearing without procedural notice to the applicant, especially where the substantive result would be duplicative or unnecessary: the Tribunal will refuse such additions on procedural fairness and redundancy grounds ([1.7]–[1.9]).
This decision is a Tribunal-level planning decision applying established planning scheme principles. The reasons focus on applying existing use rights and discretionary planning judgment rather than establishing new precedent. It is an instructive decision for practitioners appearing before VCAT on similar factual matrices: (a) where permits relate to existing licensed premises and existing use rights are asserted; and (b) where facade replacement is required for structural reasons. Later Tribunal decisions typically cite and rely on the same planning scheme provisions and the same practical approach to balancing character with urban activation. This decision would be cited as an example of VCAT applying existing use rights to prevent retrospective imposition of use-altering conditions.
The judgment accepts the applicant’s contentions about clause numbering (references to clause 65 and clause 63.05) and existing use rights, but it does not undertake a detailed statutory interpretative analysis of the planning scheme provisions. Questions remain about the precise circumstances in which internal changes that reduce or change available public area might nonetheless be regarded as effectively changing the use, particularly where public access or configuration changes could be characterised as a change in use for planning scheme purposes.
The Tribunal declined to impose car parking requirements because of existing use rights and the absence of a coherent car parking policy. A residual question is how VCAT will treat car parking where an increase in patron-generating floorspace is clearly demonstrated and where the planning scheme contains more explicit transitional or grandfathering provisions.
The balance struck on façade design was bespoke to these facts. The extent to which the Tribunal’s design direction (preserving arched-window character at first floor while permitting a modern glazed ground floor) will be followed in differently composed streetscapes is an open question; different precincts with stronger heritage overlays may yield different outcomes.
The approach to late procedural applications at hearing is fact-sensitive. How the Tribunal treats late requests to add conditions in cases where the subject matter is more central to the dispute than here will depend on fairness and the potential for prejudice, leaving room for further refinement.
This decision is a practical example of VCAT balancing structural necessity, streetscape character, existing use rights and procedural fairness in the context of a licensed premises in a commercial precinct.
Conditions Review, Existing Building, Alterations, Existing Use Right
RESPONSIBLE AUTHORITY: Stonnington City Council
SUBJECT LAND: 518-522 Chapel Street, South Yarra
Medium Neutral Citation [2001] VCAT 1612
1. The Permit Applicant's application to review the conditions under which this development will be approved is partially successful and the Respondent Objector's objections are dealt with by the amendment of the conditions by consent by the Permit Applicant and the Respondent Objector, and the Responsible Authority is directed to issue a permit for the external development of the subject property and attendant matters as follows;
Alterations to the existing two storey building on the land in accordance with the endorsed plan.
1. Before the development starts, plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans submitted 27 October 2000 but modified to show:
1.2 All south facing lower level windows to be fixed 8mm thick glazing.
1.3 The upper level south facing windows of the building shown as to be "fixed, non-openable windows" sealed to prevent sound leakage.
1.4 The doors to the rubbish bin storage enclosure must be roller doors to increase the available space.
1.5 The existing first floor bar windows facing the rear laneway and Palermo Street to be sealed permanently shut and gaps around the frames to be caulked to prevent sound leakage. Replacement glass to be a minimum 6mm thick.
1.6 Retention of the existing first floor bar roof, consisting of corrugated iron on battens with a skylight in the north facing section made from "laserlight" clear plastic corrugated sheeting; all holes and penetrations sealed to prevent sound leakage.
1.7 The existing ground floor windows facing Palermo Street to be replaced with new sealed units with minimum 8mm thick glass.
1.8 The facade facing Chapel Street to have a glazed openable wall made of sliding panes with 12mm thick toughened glass.
1.9 The access door in Palermo Street to be 44mm solid timber, any glazed sections to be 6mm thick glass, with acoustic seals to the perimeter and bottom of the door (such as Raven PR24 + RP38) and no ventilation grilles.
1.10 The rear bar roof to be constructed as follows:
* existing plasterboard ceiling fixed to underside of battens;
* new layer of 1 x 16mm plasterboard fixed to existing ceiling and covering skylight voids;
* new 150mm thick 20kg/m2 insulation in ceiling void;
* all gaps to be sealed and joints caulked to prevent sound leakage;
1.11 The rear bar door to be replaced with an acoustic door with an acoustic rating of STC35.
1.12 The rear wall to be constructed to the satisfaction of Marshall Day Acoustics.
2. The development allowed by this permit and shown on endorsed plans must not be amended for any reason without the consent of the Responsible Authority.
3. The exit door from bar 3 to the car park must only be used as an emergency exit.
4. The doors to Palermo Street must only be used as an emergency exit.
5. One car space must be permanently leased and made available for the use of the hotel at the Colonnade car park at 524 Chapel Street, South Yarra. The Responsible Authority may agree to the relocation of this car space to an alternative site at the request of the owner of the land.
6. State Environment Protection Policies N-1 and N-2 of the Environment Protection Authority must be complied with in relation to noise created on or emanating from the premises.
7. Exterior lighting shall be provided with suitable baffles and/or located so as to minimise the emission of light outside the site, to the satisfaction of the Responsible Authority.
8. Adequate provision shall be made for the storage and collection of garbage and other solid wastes within the curtilage of the site. This area shall be properly graded and drained and screened from public view to the satisfaction of the Responsible Authority.
9. The collection of rubbish from the premises (other than normal Council collection) shall be conducted between the hours of 8.00 am and 6.00 pm Mondays to Fridays.
10. The Palermo Street windows adjacent to the bar dining/ entertainment areas are to be non-openable and glazed to reduce sound levels.
11. No external speakers or similar amplification or public address system is to be erected to face Chapel and Palermo Streets.
12. No seats or tables are to be located external to the building along the Palermo Street frontage of the site.
13. Bottles and rubbish must not be taken out of the building after 11.00 pm and not before 8.00 am on any day.
14. Only the rear bar area (Palermo Lounge) will have a disc jockey and high music levels. The ground floor front bar and first floor bar will only have music played at a level just above the general ambient noise level from patrons speaking. The openable wall facing Chapel Street must remain closed when music is played in the bar.
15. This permit will expire if one of the following circumstances applies:
* The development and use is/are not started within two years of the date of this permit.
* The development is not completed within four years of the date of this permit.
2. Subject to there being a no contrary submission from any party within 14 days of the date of this decision, there will be no order as to costs.
APPEARANCES: Ms A. Johns, Solicitor of Minter Ellison, appeared for the Appellant/Permit Applicant and she called Mr Jaworski, Architect.
Mr N. Crawford, Solicitor of Maddock, Lonie and Chisholm, appeared for the Responsible Authority.
Mr L. Kipen appeared in person as the Respondent Objector.
1.1 This is an application for the review of conditions by the permit applicant, Mr Ross Merolli. The permit applicant appealed against Conditions 1, 4, 5, 6, 9 and 16. In its letter of 7 March 2001, the permit applicant expanded its review to include objections to Conditions 12 and 15.
1.2 The subject site is the "Imperial Hotel" at the corner of Palermo Street and Chapel Street, South Yarra.
1.3 At the commencement of the hearing Mr Crawford appearing for the responsible authority informed us that the permit applicant no longer intended to contest bullet points 2, 3 and 5 of Condition 1 nor Conditions 12 and 16. The responsible authority would not object to the Tribunal directing that conditions 4, 5, 6, 9 and 15 be deleted from the permit if the Tribunal was so inclined. This left the only matters at issue between the responsible authority and the permit applicant being bullet points 1, 4 and 6 of Condition 1.
1.4 In relation to the respondent objector, his objection had substantially involved noise abatement and that this had been resolved with the permit applicant. The permit applicant was prepared to consent to a number of amendments to satisfy the respondent objector. Mr Kipen confirmed this to the Tribunal.
1.5 Thus, the only matters in issue for this hearing are three of the bullet points in Condition 1 and these are;
"The first floor Chapel Street facade altered to match the existing Chapel Street facade;
"The reinstatement of the "Airlock" arrangement at the Palermo Street entrance; and
"The upper floor layout altered to show only residential guest accommodation and staff amenities and facilities at this level."
1.6 As a preliminary matter, pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act ("the Act"), the permit applicant sought to substitute new plans of the Chapel Street facade titled "Chapel Street Elevations", being three drawings dated 18 April 2001. The responsible authority did not object to the substitution of plans and accordingly leave was given for the substitution of these elevations.
1.7 During the running of the hearing Mr Crawford made application to amend the notice of decision to issue a permit by the insertion of a further condition limiting patronage of the hotel to 210 persons maximum. He sought this amendment on the grounds that it was required to give consistency between the conditions of the permits already issued for the development and use of this premises and this permit. The permit applicant resisted such an application on the grounds that it was taken by surprise and had no notice that this application would be made. Further, Ms Johns submitted that the proposed condition relating to the limiting of the patronage at the premises does not relate to anything in dispute in this permit. Secondly, there was already a condition on existing permits for the development and use of the site as a licensed premises which limit the patronage to 210 persons, as such, she submitted, the suggested condition was superfluous.
1.8 The parties were agreed that there were other existing permits that limit the patronage to 210 persons at this establishment. This was also acknowledged in the responsible authority's submission at paragraph 51 which submits that the existing planning permit limits the maximum number of persons on the site to 210 persons. Accordingly, given that the permit applicant was taken by surprise and that there is no pressing need for such a condition in this permit, I denied the application that the responsible authority could submit that there should be an additional condition added to the notice of decision to grant that limited the number of persons on the site to 210.
1.9 I will next deal with the existing planning controls over the site.
2.1 I will deal with the planning controls in summary only as there is no dispute between the parties as to a particular planning control.
2.2 As described in the submission of the responsible authority the subject site is located within a Business 1 Zone. There are no overlays that apply to the land. The permit applicant describes the use of the land as an existing hotel. The use of the land is not in dispute. Under the Business 1 zone the development of the land as proposed requires a permit as does the use. However, the subject site has been used as a hotel for many years and has the benefit of existing use rights afforded by clause 63.05 of the planning scheme.
2.3 It is the responsible authority's contention that the proposed facade and, secondly, the expansion of the first floor of the bar lounge area does not comply with the intent of the responsible authority's planning policy, which is directed at managing the scale, density and design of future commercial development to reflect the character and identity of the particular area, in this case the Chapel Street, South Yarra commercial area. The City of Stonnington Municipal Strategic Statement (MSS) sets out the responsible authority's land use related strategic policy directions for the next 10 to 20 years. The relevant clauses relating to this proposal are set out, inter alia, in clause 21.02-03: Local Planning Challenges - Settlement and the Environment, and they are;
In considering development where significant debate occurs over the impact on adjoining private properties, it is often too easy to overlook the impact on the public realm and the quality of the urban environment and its character as a whole.
Recognising and enhancing urban character is therefore a major challenge for Stonnington and its largely man made environment. In responding to this key issue, future use and development needs to:
* be complementary to Stonnington's unique character and the character and amenity of individual areas.
* use all land and buildings effectively and in ways that benefit the City.
* respect significant buildings, areas and streetscapes, including heritage places, ensuring that any new development is sympathetic to the existing built environment and locality.
2.4 In the light of the planning controls as a whole I will examine the matters in issue, starting with the facade.
3.1 All parties accept that the existing Chapel Street facade is structurally unsound and is in dire need of attention. The permit applicant provided the responsible authority with an engineering assessment. The permit applicant's architect, Mr Jawoski, gave evidence that the existing facade could not retained unless at great expense and with a lot of structural strengthening work. It was more efficient and effective to construct a new facade. The Tribunal accepts this.
3.2 The facade proposed to be constructed on Chapel Street to replace the structurally unsound facade has been designed by Mr Jawoski with a far more modern design than that of the existing hotel. Under this permit only the Chapel Street facade is to be rebuilt, the Palermo Street facade is structurally sound and will be retained as will the splay across the corner of Palermo Avenue and Chapel Street.
3.3 The planning officer in his report summed up the responsible authority's approach to the Chapel Street facade redesign, as follows:
"The new facade does not reflect the architectural style of the building but rather picks up some of the elements of the building to the north. The urban context (the Colonnade to the north and the Jam Factory extension over the railway air rights to the south) provides some justification for a more modern facade. It is considered, however, that the facade would not compliment the southern elevation of the building. The facade should be redesigned to better reflect architectural flavour of the building."
3.4 In his statement of evidence, Mr Jawoski submitted that a substantial part of his proposal was to open up the ground floor of the building to the street and make a building at a pedestal (sic, presumably `pedestrian') level included in the street activities. Secondly, he recognised that in a commercial area such as Chapel Street and in Chapel Street in particularly, there was a co-existence of different characters and styles of architecture. This obviously reflects the different ages of the buildings and the different uses.
3.5 Mr Jawoski considered that the rebuilt facade should reflect the process of change which is evident in the commercial environment. He considered that the co-existence of the old and the new were expressed in his design in using a portion of the existing building to frame a new lightweight structure. His preferred solution was Elevation No.3 which showed a reflective metallic finish to a lightweight parapet at the first floor level, together with galvanised steel columns and beans running from the ground to the roof of the first floor.
3.7 The responsible authority considered that neither facade design in Elevation No.2 or No. 3 was respectful of the existing facade of Palermo Street.
3.8 I agree to some extent with the responsible authority's attitude to Mr Jawoski's facade proposal. There will be a sudden change in the architectural style of the building as it turns from Chapel Street to the splay and then across the splay to Palermo Street. I do not disagree with Mr Jawoski's attempt to open the hotel use to the street as this is a modern and enlivening concept in urban living in Melbourne, and one I consider that should promoted in locations suitable for it. Thus, I consider, at the risk of having a bet each way, that the facade proposal on the first floor should more nearly reflect the existing facade with its arched windows whilst at the ground floor level the facade should have a glazed openable wall of sliding panes to allow pedestrian access to Chapel Street.
4.1 I understand the reinstatement of the airlock had been resolved between the permit applicant, the responsible authority and the respondent objector and it is satisfactory dealt with in the draft conditions forwarded to me by Ms Johns, for the permit applicant, on 9 May 2001.
5.1 The application by the permit applicant lodged on 6 July 2000 was for external works only.
5.2 The responsible authority sought information in its letter of 20 July 2000, in relation to the proposed use of the first floor. On 8 August 2000, the permit applicant replied that the first floor was to be retained as a staff area and lounge; further, that under its plans the floor area available to the public would be reduced from the existing floor area.
5.3 The responsible authority put a condition on the permit for external works at bullet point 6 of condition 1 in the notice of decision to grant a permit that:-
"The upper floor layout altered to show only residential guest accommodation and staff amenities and facilities at this level."
5.4 The permit applicant objected on the basis of its prior existing use rights. The permit applicant submitted that under Clause 65 of the planning scheme, it did not require a planning permit to carry out the hotel use providing the gross building area of the property was not extended. I agree with the permit applicant's contention.
5.5 The responsible authority argued that notwithstanding the prior existing use rights there was a net increase in the bar/lounge area available to the public and that under the car parking requirements of the Planning Scheme at Clause 52.06-1, the hotel use was required to provide 30 car parking spaces for every 100 square metres of lounge floor area. However, the responsible authority at paragraph 62 of its submission recognised that the existing property by reason of its existing use rights is exempt from the requirements at Clause 52.02 of the scheme. I do not consider that requirements for the provision of car parking spaces can be imposed upon the permit applicant because of those prior existing use rights. Further, given that there is no coherent, certain and adopted policy by the responsible authority towards carparking in the Chapel Street commercial area it would be unfair to refuse this permit applicant's internal rearrangement because it did not satisfy a planning scheme provision for car parking spaces.
5.6 Accordingly, I uphold the permit applicant's submission that bullet point 6 of Condition 1 should be deleted from the permit.
6.1 Ms Johns for the permit applicant has prepared draft conditions that have been forwarded to both Mr Crawford for the responsible authority and Mr Kipen, the respondent objector.
6.2 The draft conditions echo the concessions and agreements set out at the start of Mr Crawford's written submission, as noted at the start of these reasons, except for the following;
a) additional sub paragraphs are added to Condition 1, being sub-clauses 1.5, 1.6, 1.7 and 1.9 that relate substantially to noise and I infer arose from discussions with Mr Kipen;
b) Condition 4 has not been entirely deleted, but now limits the use of the doors to Palermo Street to that of emergency exit doors only; and,
6.3 The draft conditions were forwarded to the responsible authority by Minter Ellison, the responsible authority's agreement to those conditions can be inferred from there being no response. There was subsequent correspondence from Mr Kipen, who was concerned at the lack of specification for the acoustic requirements to the rear bar roof, the rear bar east door and the rear bar east wall.
6.4 On 31 May 2001 Minter Ellison, Solicitors, for the permit applicant, wrote to the Tribunal consenting to specific inclusions in the permit as to the Marshall Day Acoustic requirements for the rear bar roof, rear bar east door and rear bar east wall, even though the permit applicant considered such inclusion as unnecessary. Notwithstanding this, the inclusions are required to gain Mr Kipen's consent, and; therefore, the Tribunal shall include such conditions.
6.5 The conditions under which this application will be approved are set out under the orders made at the start of this decision.
6.6 Prima facie, I can see no reason why the normal Tribunal rule that each party bear their own costs should not apply but I will provide the parties with an opportunity to disabuse me. However, the parties should note that the costs of any subsequent hearing on costs will in the likelihood also be under consideration.
Merolli
Stonnington [2001] VCAT 1612
Tribunal directed the Responsible Authority to issue the permit for external alterations to 518-522 Chapel Street subject to amended and additional conditions (including modified facade treatment and specified acoustic requirements), refused to impose an additional patronage cap condition, and deleted the condition requiring alteration of the upper floor layout to residential accommodation on the basis of existing use rights (see Orders and reasons at [1.6]–[1.9], [3.8], [5.4]–[5.6], [6.4]).