Alterations and additions to existing building including two level addition to the rear of the subject site.

Mr Lloyd Elliott, represented the City of Melbourne on both scheduled days of hearing.

Ms Susan Brennan, Barrister, instructed by Lander and Rogers, Solicitors, appeared for the objector/applicant for review on both days.

Ms Michelle Quigley, Barrister, instructed by Tisher Liner & Co, appeared for the respondent/permit applicant on April 29th.

Mr Alan Goldstone of Tisher Liner and Co appeared for the permit applicant on May 19th.

This application for review is one brought by an objector. It was lodged on the 21st of December 1998. The Responsible Authority had issued a Notice of Decision to Grant a Permit for the development, which inter alia would accommodate a number of apartments, on the 26th of November 1998.

Ms Brennan, on behalf of the objector/appellant, made application at the outset of the Tribunal hearing on 29th April 1999 for an adjournment of the hearing on the basis that her client was inadequately prepared to proceed to argue the merits of the application.

This arose, she said, because of a late withdrawal by the permit applicant from an intended "settlement" of the proceeding by the parties. She said the parties were intending to enter into an agreement made pursuant to Section 173 of the Planning and Environment Act 1987. That agreement, she said, was to require the operator under the permit/owner of the subject land to advise prospective purchasers of the proposed units of the nearby operation of the Metro Night Club (the objector's business). The objector/appellant was also seeking that prospective purchasers would also be bound by the agreement to not object to expansion of the operations of the night club or bring enforcement proceedings in response to noise or other amenity impacts.

Ms Quigley indicated for the permit applicant that the agreement had fallen through on the basis that the permit applicant, while prepared to advise prospective purchasers of the existing night club operations, was not prepared to forgo owners' existing and future rights to object to future expansions or bring enforcement action. She said that in any case the objector/appellant had had adequate time to prepare for the listed hearing.

In the course of submissions by the parties on this matter of the adjournment, I raised with them another issue which I saw as relevant to the requested adjournment. That was the combined effects of Section 26(2) of the Planning and Environment (Planning Schemes) Act 1996, and the introduction of the Victoria Planning Provisions-based Melbourne Planning Scheme on the 4th of March 1996.

Section 26(2) of the Act provides:

"(2) If before the commencement of a new planning scheme prepared under this Part--

(a) the responsible authority had decided an application for a permit under the Principal Act in respect of land to which the new planning scheme applies; and

(b) an appeal had been lodged but not determined before that commencement--

the new planning scheme as in force at the date of the determination by the Tribunal applies to the hearing and determination of the appeal."

The new Melbourne Planning Scheme of the 4th of March included the subject site in a Capital City Zone 1 and two heritage overlays (500 - Bourke Hill Precinct; and 529 - 32 - 38 Bourke Street). I was advised that a Design and Development Overlay also applies to the land which recommends a 15m height limit for buildings, but this is not relevant to the present application. (Previously the land had been included in the Central City Development Area of the Melbourne Planning Scheme, Precinct 14 - Bourke Hill Heritage; Height Control Area 13A - a 15 m limit applied; and the subject building was listed as a notable building.)

"Accommodation" is a Section 1 or as of right use within the new zone. Buildings and works, however, require planning permission as does demolition under the zone (Clause 37.04-4).

Importantly, subsequent paragraph of that clause provides:

The schedule to this zone may specify that an application was exempt from the notice requirements of Section 52(1)(a), (b), (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act."

It is the last reference to curtailment of review rights by objectors under Section 82(1) in relation to these permissions required under the zone controls, that is pertinent to the Tribunal concerns.

The zone provisions proper are structured in such a way that it seems that the prohibition on objectors' appeal rights applies both to proposals to construct buildings and works, and to demolition. The provisions of the zone schedule in relation to this prohibition are different, however. The schedule provisions refer only to applications to construct a building or carry out works for a use in Section 1 as being exempt from various provisions of the Act, including Section 82(1). No reference is made to preclusion of appeals in relation to demolition.

Mr Elliott for the Responsible Authority expressed the view that whether third parties could appeal in relation to the granting of permission for demolition under the zone controls was a "grey area". By this I take it that he meant that it was arguable whether or not those rights existed.

The matter of concern was that it seemed to the Tribunal that there was at the time the appeal was lodged an equivalent provision to that which now requires general permission for buildings and works in the zone. Consideration of applications in response to this Scheme requirement could have given rise to a wide range of planning considerations, including the orderly planning of the area and the effect of the environment upon the application. Thus matters beyond the heritage considerations arising from the other permissions then and now required under the Planning Scheme were relevant at the time the appeal was lodged. The grounds of appeal by the objector/appellant were indeed of this wider amenity/environmental nature, rather than pertaining to heritage issues.

The particular questions which it seemed to me which arose were:

* Whether Section 26 in combination with the new Scheme provisions, operated retrospectively in relation to appeals already lodged with the Tribunal at the time of the combined introduction of those legislative provisions.

* If those legislative provisions do preclude appeals in relation to certain permissions required under the Scheme, is the appellant bound to appeal only on grounds which pertain to the particular permission? That is to say is the objector/appellant in these proceedings confined to arguing heritage matters and any other issues which may arise from the need for permission for demolition of part of the existing building.

* What are the effects of the new structure of the VPP-based Scheme upon this and in particular the decisions guidelines listed at Clause 34.04-4 of the Capital City Zone? Those guidelines include:

"Before deciding on an application, in addition to the decision guidelines in Clause 65_, the Responsible Authority must consider, as appropriate:_

* The State Planning Policy Framework and the Local Planing Policy Framework, including the Municipal Strategic Statement and Local Planning Policies.

On this issue, Ms Quigley suggested that the reason for inclusion of "the decision guidelines in Clause 65" was not to broaden the ambit of the matters for consideration beyond the particular matters listed in the schedule - which would be a departure from the established case law approach which limits decision guidelines to the ambit of discretion or the particular permissions required under the scheme. It seems to me, however, that it remains unclear as to whether the new Scheme structure alters that traditional approach which was developed in relation to old format schemes. Ms Quigley argued also that the reference in Clause 34.04-4 to the decision guidelines in Clause 65 is akin to the reference to the SPPF and the LPPF, ensuring that other parts of the Scheme are not overlooked. The fact that the SPPF and the LPPF are also repeated in the particular decision guidelines in the schedule to the zone, however, appears to argue against this view.

* A further question which arises is whether the objector/appellant may apply and/or can be permitted to amend their grounds of appeal, if the appeal rights have been constrained by Section 26 after the appeal was first lodged.

Having heard briefly from the parties on these matters, I determined to adjourn the hearing, on the basis that no party, and in particular the objector/appellant, was not prepared to offer considered legal argument on them.

While Ms Quigley sought costs against the objector/appellant for the adjournment, I determined that, in as much as the adjournment arose from these concerns of the Tribunal, and my seeking of further information in the form of legal argument, it was not appropriate to award costs against the objector/appellant. I also indicated that it was not seen as appropriate to give leave for an application to the appeals cost fund for the costs for the day, on the basis that no mistake, administrative error on the part of the Tribunal had occurred.

I then inquired of the parties whether or not they sought to have the Tribunal reconstituted to include a legal member or to comprise a legal member sitting alone. They indicated that they did not wish the Tribunal to be reconstituted.

The hearing was then adjourned to Wednesday 19th May 1999.

When the hearing was reconvened on that day, the parties indicated to me that they had reached a settlement in relation to the proceedings, and requested leave for the objector/applicant for review to withdraw the application to the Tribunal. They requested that no order for costs be made.

I indicated that I was prepared to allow that withdrawal.

Accordingly, the Tribunal allows the withdrawal of Application 1998/100006, and affirms the Responsible Authority's decision.

It is directed that the Responsible Authority under Section 85(1)(b) of the Planning and Environment Act 1987 issue a permit in accordance with the Notice of Decision to Grant a Permit dated 26th November 1998.

It should be noted that this is a formal order made in the circumstances stated and that the Tribunal has not considered the substance of the application for review.