1. Leave is granted to the applicants to further amend the statement of grounds to include the following additional ground:
   1. There should be no further demolition of the C Classified MCG Hotel
2. The decision of the responsible authority is affirmed.
3. In permit application TP-2009-1109, a permit is granted and directed to be issued for the land at 178-226 Wellington Parade, East Melbourne in accordance with the endorsed plans on the conditions set out in Appendix A. The permit allows:

Demolition, use and development of the land for the purpose of residential dwellings, extension to existing hotel ballroom, reception and administration areas and reduction in car parking in accordance with the endorsed plans.

Mr Gary Morgan, in person. (Mr & Mrs Morgan continued to have William Murray solicitors acting as solicitors on the record for the proceeding).

• Mr Bruce Trethowan, heritage consultant, Trethowan architecture.
• Mr Tarek Ishak, architect

• Ms Meredith Gould, heritage consultant to Melbourne City Council
• Ms Josephine Lee, town planner with Melbourne City Council.
• Ms Karen Bayley, town planner with Melbourne City Council.

Mrs Genevieve Morgan was present on 11-13 October 2010 & 7 February 2011, and Mr Morgan was assisted on 3-4 November 2010 by Ms Michele Levine, a business associate with Roy Morgan Research.

Ms Nicola Collingwood of counsel, instructed by Ms Brigit Ryan, Corporate Solicitor, Melbourne City Council.

Mr Ian Pitt SC & Ms Susan Brennan of counsel, instructed by Best Hooper, solicitors. They called the following witnesses:

• Mr Andrew Biasci, town planning consultant, Contour consultants.
• Mr Mark Sheppard, urban designer, David Lock & Associates.
• Mr Peter Lovell, heritage consultant, Lovell Chen.
• Mr Bryce Raworth, conservation consultant and architectural historian, Bryce Raworth Pty Ltd.

Proposal to undertake alterations and additions to the eastern section of the existing Hilton Hotel building including:

• demolish part of the existing MCG Hotel building;
• develop a new multi-storey building to accommodate 78 dwellings together with associated car parking and other facilities including a new hotel administration area, a ground floor apartment lobby and forecourt for the retained section of the MCG Hotel, a new reception room for the existing Hilton Hotel ballroom;
• provide a total of 160 new car spaces, 27 bicycle spaces; and modify access arrangements off Wellington Parade.

Application under s 82 of the Planning and Environment Act 1987 (objector application for review).

Heritage Overlay - East Melbourne & Jolimont Precinct [HO2].

Design & Development Overlay - Wellington Parade and Clarendon Street [DDO21].

Permit Requirements under Melbourne Planning Scheme

Clause 52.29: Land adjacent to Road Zone Category 1.

Clause 52.36 : Integrated Public Transport Planning.

The review site is located on the north east corner of Wellington Parade and Clarendon Street, East Melbourne. The site is generally known as the Hilton Hotel, comprising the Hilton on the Park hotel tower, associated ballroom and the adjacent MCG Hotel building.

The existing hotel tower occupies approximately half of the site, on the western side of the site. The eastern half accommodates the Hilton ballroom and MCG Hotel.

Land to the north is generally used for residential purposes. The property owned by Mr & Mrs Morgan at 193 George Street adjoins the review site to the north. Land to the east is generally developed and used for commercial and residential purposes. Land to the south (beyond Wellington Parade) includes Jolimont railway station, Yarra Park and the MCG beyond.

An accompanied site inspection was held on 21 October 2010.

In addition to the Tribunal members, those attending comprised Mr & Mrs Morgan, Mr Trethowan, Ms Brennan and Ms Lee. Ms Judy Hatchfield and Mr Don Robertson from the Hilton Hotel provided access to sites within the review site, including relevant parts of the MCG Hotel building, the Hilton Hotel basement, pool roof deck and a view from level 18 over the site and surrounding properties. The accompanied site inspection also visited Mr & Mrs Morgan's property at 193 George Street.

The Tribunal also inspected other relevant areas of the public domain in the vicinity of the review site.

1. In April 2010, Melbourne City Council (the Council), in its capacity as responsible authority under the Melbourne Planning Scheme, determined to grant to Thakral Holdings Pty Ltd (Thakral) a planning permit for redevelopment of part of the land at 178-226 Wellington Parade East Melbourne. The site is known as the Hilton Hotel site, and includes the adjacent remaining parts of the MCG Hotel building. Thakral owns the site.
2. The proposed redevelopment includes a 12 to 14-storey building[2] sited between the existing Hilton Hotel tower and a commercial building to the east, but lower than these adjacent buildings. The new building will primarily accommodate 78 apartments, although there are other facilities included for the Hilton Hotel. Importantly, for this proceeding, the proposed redevelopment includes demolition of the rear of the two remaining wings of the former MCG Hotel building, although the front wing is to be retained.
3. Mr & Mrs Morgan live in George Street, East Melbourne, with a rear abuttal to the site. They were amongst four objectors to the permit application when it was considered by the Council, and they have sought a review by the Tribunal.

1. Three of Mr & Mrs Morgan's formal grounds of objection have remained consistent. In their original objection to the Council on 1 March 2010, the first three grounds were as follows:
   1. The proposed development is an overdevelopment of the site.
   2. The proposed development will adversely affect the amenity of the neighbourhood.
   3. The proposed development will be out of scale with the heritage character of the area.
2. A fourth ground was also then included, contending that the proposed development would exceed the permissible height limit. Given the then effect of Schedule 21 to the Design and Development Overlay (DDO)[3], this was not correct.
3. The four grounds of objection were initially included in Mr & Mrs Morgan's application for review to the Tribunal on 30 April 2010, along with two further grounds, arguing that the Council's decision was wrong in law, and that the Council had taken into account irrelevant considerations and had failed to take into account relevant considerations. Given the Tribunal hearing is essentially a hearing de novo, and the application is being considered afresh, these two grounds were somewhat misconceived. Nonetheless, following a directions hearing where Mr & Mrs Morgan were represented by counsel, and pursuant to an order of the Tribunal, their instructing solicitor filed further particulars of the grounds for review on 26 July 2010. These further particulars indicated that the last three grounds "will not be pursued", thus leaving only the three specified grounds we have set out above.
4. On the first day of the hearing, Mr Morgan sought to amend his grounds of review, retaining the original three grounds but seeking to add six further grounds. One of these related to demolition of the MCG Hotel. There was no objection to this, and leave was thus granted to Mr Morgan to include a further ground in the terms he provided, namely:
   1. There should be no further demolition of the C Classified MCG Hotel.
5. Mr & Mrs Morgan had not previously raised this issue in the earlier phase of the objection and application process, including in the July response to the Tribunal's order for further particulars. We therefore place little weight on Mr Morgan's claim that he was denied procedural fairness in his ability to deal with this issue. The Council and Thakral only became aware, on the day before the hearing, that Mr Morgan intended to raise the MCG Hotel demolition issue as a 'live' issue in the proceeding. They were not previously aware that this was an issue where there was a particular case to prepare and answer, albeit that Thakral had filed and was calling heritage evidence generally. In the Tribunal's view, the Council and Thakral 'bent over backwards' (as did the Tribunal) to deal with this additional ground over the course of the hearing. Indeed, most of the hearing was spent on this issue. We deal below with other procedural issues stemming from the late inclusion of this further ground.
6. We refused leave to Mr Morgan to raise five other grounds:
   • two of these were an attempt to reinstate the misconceived grounds that had previously been withdrawn by his solicitors as part of the further particulars. As we have indicated, we are considering the application afresh. The legality of the Council decision at first instance is therefore of limited relevance, save for our adverse comments on the Council's officer report later in these reasons.
   • two raised an issue of whether the present Hilton Hotel foundations were partially located on or under 187 or 193 George Street, and whether they could thus be used to support the new building. Mr Morgan provided no prima facie evidence to support his assertion. Moreover, Thakral indicated that the existing Hilton Hotel was built more than 30 years ago and any encroachment into or under other property (which was denied[4]) would not be actionable under established principles of adverse possession.
   • one sought an order that earlier demolished sections of the MCG Hotel building be rebuilt to specifications of their original structure. There is no evidence that the demolition of those earlier sections some years ago occurred other than in accordance with the then prevailing planning and/or building laws. That earlier demolition is not the subject of any enforcement proceeding, nor part of Thakral's current permit application. Clearly, we would have no jurisdiction to deal with this ground.
7. This therefore leaves the four grounds of review set out above.

1. Because of the time devoted to procedural matters at the hearing, we feel it necessary to deal with some of these matters in our written decision.

1. At the commencement of the hearing, Mr Morgan sought an adjournment. The application for adjournment was refused, and we gave oral reasons at that time. Essentially:
   • Mr & Mrs Morgan's objection to redevelopment at this site is a matter of longstanding[5], and they are well apprised of relevant issues. This application for review was made in April 2010, and Mr & Mrs Morgan had consented (via their then counsel at the directions hearing) to a hearing within the period the matter was first listed;
   • Mr & Mrs Morgan had adequate time to prepare. They had chosen, at their peril, not to undertake preparation for the hearing (file inspection, retaining expert witnesses etc) until a very late stage. Contrary to their assertions, they had access to relevant files and documents relating to the grounds of review they had initially raised, and in our view no relevant documents had been unreasonably withheld[6];
   • Procedural fairness cuts both ways. The respondent Thakral was ready to proceed, had filed all of its evidence in accordance with the Tribunal's practice directions, and was entitled to have its permit application determined. It may suffer prejudice if there is unreasonable delay. Conversely, Mr Morgan had not complied with the Tribunal's practice directions;
   • We were not satisfied that there was any 'new' information relevant to the proceeding that then warranted an adjournment and/or that could not be dealt with through other procedural arrangements within the hearing.
2. Despite refusing the adjournment, we granted leave to Mr & Mrs Morgan:
   • to raise the additional ground referred to earlier, relating to the proposed demolition of part of the MCG Hotel;
   • to file a late witness statement from Mr Tarek Ishek, architect, only one working day prior to the hearing (and not in accordance with the Tribunal's practice directions), and to call Mr Ishek; and
   • to file a late witness statement from Mr Bruce Trethowan, heritage consultant, only one working day prior to the hearing (and engaged only 2 or 3 days earlier) and not in accordance with the Tribunal's practice directions, and to call Mr Trethowan.

1. Although we consider that the Council made its relevant planning files available for inspection by Mr Morgan within a reasonable timeframe, given his late requests for access, we have some concern with the rigour of the Council's assessment of the proposal.
2. The planning file for the permit application contained the relevant officer report[7] upon which the application had been assessed. The officer report refers, in turn, to internal referrals to Council advisers - including pre-application advice provided Council's heritage adviser, Ms Meredith Gould. Although we were initially informed that Ms Gould's report was on the planning file inspected by Mr Morgan before the hearing, the Council later conceded that this was not the case, although Ms Gould's report was referenced in the officer report and would presumably have been made available to Mr Morgan had he specifically requested it. Ms Gould's report was ultimately produced to the Tribunal and other parties as part of the Council's submission on the first day of hearing, and Mr Trethowan was able to deal with it within his evidence on behalf of Mr & Mrs Morgan later that day.
3. However, as it subsequently became apparent:
   • the officer report had not accurately summarised Ms Gould's views in relation to the partial demolition of the MCG Hotel;
   • Ms Gould's instructions and advice had been limited in scope, and she had not expressed an overall view on the heritage aspects of the permit application. It appears she had been asked to 'assume' the demolition of the northern half of the MCG Hotel rather than express a view on the merits of demolition;
   • it appears that heritage issues were given little weight in the Council assessment;
   • the Council's submission to the Tribunal compounded the problem, by inaccurately indicating that Ms Gould had no objection to the proposal[8].
4. The Tribunal hearing is a hearing de novo of the permit application, and deficiencies in the Council assessment are therefore not always of significant concern where the Tribunal has the opportunity to fully consider the matter afresh[9]. Moreover, as we have indicated, the heritage matter relating to the partial demolition of the MCG Hotel was only very belatedly raised by Mr & Mrs Morgan.
5. Here, however, we considered the matter to be of some concern on an important and potentially determinative issue. Accordingly, when the issues surrounding Ms Gould's report arose, we allowed Mr & Mrs Morgan the opportunity to re-open their case at a deferred further hearing in November 2010, to make further submissions about Ms Gould's report, to summons and call Ms Gould and two council officers and to have relevant reports and documents produced, and to re-call Mr Trethowan on these issues.
6. We consider that the mis-statements by the Council about Ms Gould's report and her opinion to be of concern. They reflect a lack of rigour in, and undermine our confidence in, the Council's planning assessment of this proposal from a heritage perspective and in relation to the partial demolition of the MCG Hotel. However, we have been fortunate to have, as part of our hearing de novo, extensive expert evidence and documents from all parties on this issue - including evidence from Ms Gould, Mr Trethowan, Mr Lovell, and Mr Raworth, all of whom are prominent and well-regarded experts in this field.

1. The second phase of the hearing concluded on 4 November 2010 and we reserved our decision. Shortly afterwards, we become aware of Amendment C174 to the Melbourne Planning Scheme which was approved on 18 November 2010. The consequence of this Amendment is that there is an additional permit 'trigger' for the proposed development, under Schedule 21 of the DDO in clause 43.02 of the planning scheme[10]. It is now necessary for the Tribunal to consider all of the built form objectives of the DDO, even where the proposal complies with building heights and setbacks in the DDO Schedule.
2. We had heard some evidence on these matters within the earlier hearing phase - in particular within the Council's submission, and through the evidence and cross-examination of Mr Sheppard (and to a lesser extent Mr Biasci and the heritage consultants) called by Thakral. However, as a matter of procedural fairness, we invited further submissions from the parties on the change to the DDO.
3. Although neither the Council or Thakral considered a further hearing was warranted, we agreed with Mr & Mrs Morgan that the parties be given an opportunity to be heard on these matters. This ultimately necessitated a further hearing on 7 February 2011. At this hearing, Mr Morgan submitted that the additional permit trigger added weight to his objection to the proposed building, and alerted us to an application he had by then made to Heritage Victoria for re-nomination of the MCG Hotel to the Heritage Register[11]. We deal with these issues later in these reasons. Both the Council and Thakral simply relied on their earlier submissions, as both had effectively already undertaken an assessment against the design objectives of DDO21.

1. At the conclusion of the November hearing, Thakral had expressed concern that the Tribunal had granted 'extraordinary and unprecedented latitude' to Mr & Mrs Morgan through the late evidence allowed, the re-opening of their case (even beyond the Gould report issue), and the often repetitive or irrelevant submissions and cross-examination by Mr Morgan. For the reasons we have indicated, some of this 'latitude' was in our view necessary to give Mr Morgan a fair hearing. Mr Morgan was perhaps justifiably aggrieved by the lack of rigour in the Council assessment of the proposal, albeit that there was a significant lack of rigour and timeliness in his own case preparation.
2. Thakral also expressed concern at Mr Morgan's aggressive and belligerent behaviour at the hearing, including his multiple insults and rudeness to the Tribunal, parties and witnesses throughout the hearing despite repeated warnings. We share this concern. Whilst we granted some leeway to Mr Morgan as a self-represented advocate with a clear emotional involvement in the subject matter of the proceeding, his behaviour bordered on being contemptuous of the Tribunal and was, in an overall sense, unacceptable. Many of his submissions were irrelevant to the core issues we must decide. We have nonetheless put the issue of Mr Morgan's conduct aside in our consideration of the substantive merits of the proposal before us.
3. The tension in the hearing was perhaps, however, reflective of Mr Morgan's fundamental misconception with the Tribunal's role in considering the application. Contrary to the approach taken by Mr Morgan:
   • our approach is one of substance over form. The hearing, as we have indicated, is a hearing de novo where we consider the application and evidence afresh, unbridled by any deficiencies in past process;
   • our decision is not based on a general like or dislike of the proposal. We are bound to objectively consider the permit application, having regard to the relevant provisions, policies and decision guidelines under the Melbourne Planning Scheme.
   • it is not our role to 'second-guess' the provisions of the planning scheme, nor is it our role in this case to re-classify the heritage status of the MCG Hotel. We must act within our jurisdiction. Here, we are considering an application to review a particular decision of the Council with respect to Thakral's particular permit application, under the provisions of the planning scheme as they now exist.
4. We have noted the application by Mr & Mrs Morgan to Heritage Victoria for renomination of the MCG Hotel to the Heritage Register. Heritage Victoria will presumably now undertake its own process under the Heritage Act 1995, which is separate to this process and hearing under the Planning & Environment Act 1987. If Mr & Mrs Morgan are successful with their application for renomination, Thakral may require a separate heritage permit under the Heritage Act 1995. We do not presume to 'second-guess' the outcome of any heritage application. Equally, we do not agree with Mr Morgan that we should defer our decision on the current planning permit application until any Heritage Victoria application has been considered and decided. They are separate matters. Thakral is entitled to a decision on its planning application.

1. A site inspection was conducted on 21 October 2010. The site inspection included access to the remaining parts of the MCG Hotel building, other than the basement. Mr Morgan raised a concern that the basement was not inspected by the Tribunal[12], as he believed the basement provided valuable material to assist in dating the building. However, the purpose of a site inspection is to assist the Tribunal in interpreting the evidence before it - the Tribunal is not itself expert in dating buildings. The Tribunal was provided with an exhaustive photographic record of the MCG Hotel, including numerous photos of the basement, as part of Mr Lovell's evidence. Submissions and evidence were received from the parties and their witnesses on the likely dating of the building, including by reference to the basement. We would not have been materially assisted by ourselves physically inspecting the basement, and have made our findings based on the primary evidence before us. As it transpired, there was a growing consensus amongst the four heritage consultants, by the end of the hearing, as to the likely dating of the front and rear remaining wings of the MCG Hotel.

1. Having regard to the grounds of review and the change to the DDO, we must consider whether the proposed development is generally acceptable having regard to the relevant policies, provisions and decision guidelines in the Melbourne Planning Scheme. We must decide whether a permit should be granted and, if so, what conditions should be applied.
2. Based on the above, and in the context of the four grounds of review, we consider the key issues arising for our consideration in this proceeding are therefore as follows:

• Is the proposed partial demolition of the MCG Hotel building (i.e. the rear wing) acceptable?
• Is the proposed development acceptable in terms of its height and scale, particularly as it impacts on the MCG Hotel?
• Is the proposal acceptable having regard to the broader heritage character of the immediate area?

• Does the proposal support general urban consolidation policies of the planning scheme?

• Is the proposed development acceptable in terms of the urban design context of Wellington Parade and surrounds?
• Does the proposed development meet the built form objectives of Schedule 21 to the DDO?
• Does the proposed development have an unreasonable impact on the amenity of Mr & Mrs Morgan's property at 193 George Street?

1. Having considered all submissions and evidence presented, we have decided to grant a permit subject to conditions. Our reasons on these substantive issues follow.

1. Clause 22.05[13] is a policy of the Melbourne Planning Scheme that provides a basis for the assessment of the heritage place. It applies to all places within the Heritage Overlay Area, excluding the Capital City Zone and the Docklands Zone.
2. The MCG Hotel and the site of the proposed new building are located within Heritage Overlay [HO2] East Melbourne and Jolimont, although the adjacent existing Hilton Hotel is not within this heritage overlay. The purpose of the Heritage Overlay at clause 43.01 is, amongst other things:
   • To conserve and enhance heritage places of natural or cultural significance.
   • To conserve and enhance those elements which contribute to the significance of heritage places.
   • To ensure that development does not adversely affect the significance of heritage places.
3. The MCG hotel is graded 'C' in Council's East Melbourne & Jolimont Conservation Study 1985. This grading has been reaffirmed in the more recent City of Melbourne's Heritage Places Inventory (July 2008), which is an incorporated document under the Melbourne Planning Scheme and forms part of the scheme. The site is located within a Level 3 Streetscape.
4. A permit is required under the Heritage Overlay[14] to demolish or remove a building, construct a building or construct or carry out works.
5. Importantly, there are no planning controls applying to the interior of the building.
6. In considering the current application, the Tribunal must consider decision guidelines which include, as appropriate:
   • The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.
   • Any applicable statement of significance, heritage study and any applicable conservation policy.
   • Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place.
   • Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.
   • Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place.
   • Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.

1. The MCG hotel is a two-storey Italianate styled nineteenth century rendered brick hotel. Two sections of the hotel remain - the front wing, fronting Wellington Parade (which is proposed to be retained), and the rear wing immediately behind it (which is proposed for demolition). [We have called this the 'rear' wing, although there were originally other parts of the hotel behind this rear wing that have been previously demolished in or prior to 2004].
2. From the evidence before us, we accept the following timelines:
   • A hotel was first established on the site in 1853-54, as the 'Parade Hotel', and was one of the first commercial operations in East Melbourne. The consensus view is that none of this first building survives.
   • East Melbourne was by then already a desirable residential area, with Bishopscourt (the home of the Anglican archbishop) having been built in or around 1851. By the 1850's, the East Melbourne area also had developed strong sporting associations, and the Parade Hotel's publican in the mid/late 1850's (a Mr Bryant) was an accomplished cricketer who played in the first match between Australia and England.
   • The Melbourne Football Club was established in May 1859. The club was incorporated at Bryant's Parade Hotel on 17 May 1859, and the first rules of Australian Rules Football were written at the hotel at that meeting or shortly thereafter. [The evidence of Mr Lovell is that these rules were rewritten and replaced by other rules at the Argus Hotel in 1860].
   • The existing front wing, fronting Wellington Parade, was constructed in 1859. [There is now a relatively consistent view amongst the key heritage consultants about this 1859 date, based on recent investigations, although the date differs from an 1863 date established by the Heritage Council in 2004 - see further below]. A notice of intent to build was issued in May 1859.
   • The existing rear wing is most likely to have been constructed in 1863, and possibly in two parts. There is a relatively consistent view amongst the heritage consultants that this rear wing post-dated the front wing and was constructed later and separately.
   • Melbourne City Council rate books confirm that extensive building and renovations were undertaken in 1859, 1863 and 1875, which adds support to these findings.
   • Remodelling works continued in the 1920s and 1930s, and in the post WWII era. The Parade Hotel was renamed the MCG Hotel in or around 1933, and retained its social significance as a pre- and post-football 'watering hole'.
   • The MCG Hotel closed in 2004 and other parts of the then remaining hotel building (i.e. other than the now remaining front and rear wings) were demolished. The front and rear wings have been largely gutted and stripped internally.
3. Although we have indicated an emerging consensus amongst the heritage consultants on these timelines, there were some nuances and differences in the evidence of likely construction dates of the front and rear wings. Mr Trethowan changed his opinion within the hearing, and reversed a preliminary view that the rear wing may have been constructed earlier and before the front wing. This is perhaps understandable given Mr Trethowan's late retainer, and we draw no adverse inference from this. However, to the extent there are some nuances or differences in the evidence of the heritage consultants on these timelines, we have preferred the evidence of Mr Raworth and Mr Lovell over that of Mr Trethowan.

1. The MCG hotel had been nominated for inclusion in the Victorian Heritage Register in 2004, and was subject to a Heritage Council Registrations Committee examination and hearing process at that time. At that time, an assessment was made of the cultural heritage significance of the hotel.
2. The Committee acknowledged that the MCG hotel had associations with both the playing and organising of football games. However, the Committee was not convinced that the hotel was built to a sufficient state of completion between 1858 and 1863 to have allowed the rules of the football to be written on the existing premises, nor was it convinced that the extant fabric had any definable links to the purported writing of those rules. It was the site of an historical event, rather than the rules having a direct association with the extant building. The committee also indicated that other hotels in East Melbourne, Richmond and Collingwood had a similar association with the earliest games of football. The committee determined that the hotel was not of state significance and did not warrant inclusion in the Victorian Heritage Register[15], and the building was of local interest only. The Committee referred the matter to Melbourne City Council for consideration for reference in its planning scheme. As we have indicated, the MCG hotel had been graded 'C' in Council's East Melbourne & Jolimont Conservation Study 1985, with this grading reaffirmed in the Council's Heritage Places Inventory (July 2008).
3. The Committee had found that the existing hotel may not have been built until 1863, and also states that the building was being rebuilt in the period 1859 to 1863. As indicated, there is now reasonable consensus amongst the heritage experts, by the end of the hearing before us, that the Committee's finding as the year of construction may have been in error, and that the best available evidence is now that the front wing may have been completed in 1859 rather than in the period 1859 to 1863.
4. Whether or not this warrants a reconsideration of the matter by Heritage Victoria or the Heritage Council Registrations Committee is a matter for those bodies. However, we observe the following:
   • given a notice of intention to build (for the front wing) was issued in May 1859, it is unlikely that the front wing would have been completed in the very same month so as to have been in existence when the Melbourne Football Club was formed and the rules of football were written on 17 May 1859;
   • even if that front wing was in existence in May 1859 and its large dining rooms were used for the meeting that formed the Melbourne Football Club and the writing of the first rules of football, that front wing is to be retained and refurbished. Any direct association (if established by further investigation in the future) can therefore be maintained;
   • the rear wing now proposed for demolition appears, on the best available evidence, to have been built in or after 1863. It does not have any large rooms, and could not realistically have been used for the May 1859 meeting.
5. It follows that the building fabric of the rear wing now sought to be demolished can "in no way be directly associated with or demonstrate to the public the cultural event of the writing of the rules of Australian Football"[16]. To the extent it is at all relevant to our planning decision, it does not appear to us that this conclusion of the Committee in 2004 has been materially undermined. However, as we have indicated, we do not presume to 'second-guess' the outcome of any future heritage application.

1. As we have also indicated, we are bound to assess the matter by what is currently in the planning scheme, and the controls and policies that currently apply to the site under the Melbourne Planning Scheme.
2. This MCG Hotel is currently graded 'C' under the Heritage Places Inventory (July 2008), which is an incorporated document under the Melbourne Planning Scheme. This is the lowest level of heritage status under the planning scheme, short of the building being not graded at all and having no recognised heritage status at all from a planning perspective.
3. Although we are bound by what is in the scheme, we note that three out of the four heritage consultants (Mr Lovell, Mr Raworth and Ms Gould) indicated that the better information now available as to the dates of construction of the two hotel wings did not alter their views regarding the heritage significance of the building or the proposed works. Nor did it alter their views that the building is correctly graded 'C' under the Melbourne Planning Scheme. The Council also indicated it had no intention of reviewing this grading in the near future, nor was there a change in its opinion regarding the proposed works.
4. We therefore have no basis to consider the heritage significance of the MCG Hotel as being other than a 'C' grade building in a Level 3 streetscape. Mr Trethowan expressed an opinion that this grading is inadequate. However, it is not for us to 'second-guess' the planning scheme. We must apply the scheme as it exists. We disagree with Mr Morgan and his witness Mr Trethowan that there is any legitimate basis, for the purpose of deciding the application before us, upon which we can or should attach greater significance to the building than that recognised under the planning scheme.
5. Having said this, the building does enjoy a 'C' grading under the Heritage Places Inventory (July 2008) that we must properly consider.

1. It is proposed to demolish the rear (northern) wing of the MCG hotel, retain the front (southern) wing fronting Wellington Parade, and construct two residential towers of 12 and 14 storeys to the rear of the building.
2. Mr & Mrs Morgan object to the demolition on the grounds of the hotel's social and cultural significance to Melbourne and went so far as to say the demolished east and west wings should be reinstated. Mr Trethowan's evidence was that the hotel has historic, social and architectural significance and should be retained as it remains today. Its historic significance is as the oldest hotel in East Melbourne, the venue for the first meeting of the Melbourne Football Club (the oldest football club in Australia) and as the likely location where the first rules of the game were written. Its social significance is as being as a popular venue for sports fans and players from the 1850s until its closure in 2004, particularly as a pre- and post game meeting place and watering hole. Its architectural significance as a substantial inner suburban nineteenth century hotel including its ground floor carriageway. As we have noted, Mr Trethowan is of the opinion that the current listing as a 'C' graded building is inadequate.
3. As we have indicated, we do not consider it our role to re-grade the building or to 'review' the findings of the Heritage Council Registrations Committee. We have nonetheless considered Mr Trethowan's evidence on the broader heritage 'significance' of the MCG Hotel, in order to apply the relevant decision guidelines within the Heritage Overlay, including for example 'the significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place'. Given the additional permit trigger under DDO-21, the heritage significance of the hotel is also relevant to the design objectives under that overlay, including 'to respect the scale and significance of heritage buildings on the site or on adjacent sites'.
4. In considering the cultural significance of the building, we agree that the hotel has an association with Australian Rules football. However, through the evidence before us, these rules could not have been written in the rear section of the hotel proposed for demolition. In his second statement of evidence, Mr Trethowan amended his original assessment, and expressed an opinion that it is more likely that the larger first floor rooms of the 1859 front wing (being the wing proposed to be retained) were used as dining rooms and this is the likely venue for meetings of the Melbourne Football Club after this wing of the hotel was completed. We agree with Mr Lovell and Mr Raworth that there is no direct association established between the rear wing of the hotel and the earlier formation of the Melbourne Football Club or the writing of football rules.
5. In considering the cultural and social significance of the building, we agree with Mr Lovell who described the building as a 'memory building'. As Mr Raworth phrased it, the building is not a document that tells us about Australian Rules football. The hotel has a connection and a memory with the writing of the rules and the early meeting place of the Melbourne Football Club, and indeed football supporters over the subsequent years, but we are not convinced by the evidence before us that the rear wing holds a sufficient level of social or cultural significance that warrants its retention. We also agree with Mr Lovell (as did the Heritage Council Registrations Committee in 2004) that there are several other hotels in the vicinity with similar associations with the early years of football.
6. We also agree with Mr Lovell, Mr Raworth (and to a lesser extent, Ms Gould) who indicated that the architectural significance of the MCG building alone did not warrant its retention.
7. In considering the proposed demolition, we have, amongst other matters, considered both clauses 43.01 and 22.05 of the planning scheme. Clause 22.05 states that demolishing or removing original parts of the front part of a 'C' graded building will not normally be permitted. It defines 'front part' as generally considered to be the front two rooms in depth. The policy further informs us that higher parts or additions should be set back at least 8 metres behind the front façade to achieve concealment.
8. There was some debate about the application of this policy. The reference to the front part being 'generally considered' to be the two front rooms is potentially problematic, as the depth of a room may differ significantly. Here, given the large former dining rooms at the front of the front wing that occupy a large part of that wing, an overlay literal reading of this policy would lead to an outcome beyond the objective the policy seeks to achieve. Clause 22.05 informs us that, in considering the proposed demolition and the proposed building, the policy seeks to:
   • To conserve all parts of buildings of historic, social or architectural interest which contribute to the significance, character and appearance of the building, streetscape or area;

• To ensure that new development, and the construction or external alteration of buildings, make a positive contribution to the built form and amenity of the area and are respectful to the architectural, social or historic character and appearance of the streetscape and the area.

1. We agree with the submissions by Thakral and the evidence of Mr Raworth that in combination demonstrate that:
   • the language of the policy is such that itself admits that it is not of universal application. A policy is not a binding or mandatory control, but an opportunity for the responsible authority to state how discretion may be exercised under the scheme; and
   • the 'two room' depth arises for heritage places outside the Capital City zone and, for practical purposes, is commonly applied to 'C' graded terrace houses - where two rooms commonly have a depth of approximately 8 metres. It is not a logical conclusion that this 'two room' measure should arbitrarily apply to a commercial hotel, where the room proportions differ from a domestic dwelling.
   • by comparison, if this site was within the Capital City Zone (where there are more hotel and commercial premises), there is no similar 'two room' depth policy. This allows for proposals to be assessed on merits and not by numerical standards.
2. In cross-examination, Mr Trethowan also acknowledged that the reference to 'generally' two rooms contemplated exceptions, and each case needed to be assessed against the policy according to its individual merits and significance.
3. The aim of the policy would appear to be an attempt to avoid 'facadism', where only the façade of a heritage building is retained, but none of the built form behind the façade that reflects its underlying heritage character or value. What is being retained here is an intact and discrete wing of the hotel, which is approximately 7 metres in depth, but comprising only one room because of the large formal rooms across the front of the hotel. Given the structure, nature, and layout of this wing (and its structural and functional differences from the rear wing), we consider that the retention of this wing is sufficient to comply with the spirit and intent of the clause 22.05 policy.

1. The proposed new building sits directly behind the retained front wing of the building and rises to a 12 and 14 storey tower. Viewed from Wellington Parade, the new building sits 7 metres from the street. Mr Trethowan put to us that, in addition to retaining the rear wing of the MCG hotel, there should be a gap or 'breathing space' between the MCG hotel and the new built form that would allow the MCG hotel to read as 'in the round', similar for example to No.1 Collins Street, Melbourne. We prefer the evidence of Mr Raworth, who disagreed with this view. First, No.1 Collins Street is a building of state significance where different considerations apply. Secondly, buildings are generally viewed 'in the round' when the rear elevations are of value. Something positive needs to be achieved by providing a gap to view the rear of a heritage building, and that does not arise here.
2. From the evidence before us, we are satisfied that the rear elevation of the rear wing that stands today was never intended to be viewed from the rear or from the public domain. It is the back of a building that formed a wall of the courtyard. A similar situation will prevail in relation to the rear elevation of the front wing when the rear wing is demolished. Plans presented to us[17] detailed two other wings of the hotel (since demolished) that extended from the rear of the building to the north. It appears that these wings accommodated a series of bedrooms. What we view today is not what was originally the rear of the building. The view of the rear that Mr & Mrs Morgan seek to be retain and enhance with a gap or 'breathing space' is not a historical view, and was never a view that was intended to be appreciated from the public realm. It follows that we are not persuaded that a gap or breathing space is warranted between the retained portion of the hotel and new building. The present proposal, setting back the new building 7 metres from the street, is in our view sufficient to meet the policy objective and protect the heritage character of the retained 7 metre deep wing of the hotel which will sit forward of it on the street frontage. Requiring an additional metre setback, to meet an arbitrary 8 metre setback, would serve no useful heritage purpose and may have the added disadvantage of leading to a shift of the new building closer to Mr & Mrs Morgan's property.
3. The proposed new building will be clearly visible to the street. The proposed 7 metre setback provides for the MCG hotel to be read clearly as an element in the streetscape. As to clause 22.05 and its policy regarding 'partial concealment', this cannot be achieved and nor should it be in this case. As we have stated earlier, the application of clause 22.05 is to be tempered when applied to a building of this location and size, and is more applicable to extensions behind traditional terrace houses. What is achieved in this case is the conservation of that part of the MCG Hotel building that contributes to the significance, character and appearance of the building in the streetscape. We also accept the opinion of Mr Raworth that the proposed building is sufficiently set back and articulated to allow the MCG hotel to read as an independent element in the street, with the taller built form behind.
4. This leads us to consider the impact of the proposed new building on the broader heritage place [HO2] East Melbourne and Jolimont. The streetscape of Wellington Parade, between Clarendon and Powlett Streets, is very mixed and dominated by modern high rise buildings. The MCG hotel is the remaining heritage building in the block from Clarendon to Powlett Street. It is a Level 3 streetscape, being the lowest grading and reflective of the lack of strong heritage character. Yarra Park and Jolimont Station, opposite the site to the south of Wellington Parade, are significant but divorced from the site by the width of Wellington Parade and the topography of the land. We are satisfied on the evidence and material before us that the proposed new building will not have a detrimental impact on the heritage place within Wellington Street or on Yarra Park and Jolimont Station.
5. Surrounding streetscapes including George Street, offer a much greater selection of higher graded heritage buildings. Indeed, some of Melbourne's finest are within this precinct. However, this central residential enclave of East Melbourne is also somewhat discrete in a heritage context, and divorced from the Wellington Street precinct which, as we have said, is already dominated by modern high rise buildings. We are satisfied on the evidence and material before us that the proposed new building will not have any additional detrimental impact to the heritage place along George Street or further within the central East Melbourne residential enclave.

1. In summary, the test to apply in considering the proposed demolition of the rear wing of the MCG Hotel and the construction of the new building includes the objectives of clause 22.05 and 43.01 of the planning scheme. Our consideration includes the significance of the heritage place and whether the demolition or removal of any part of the building contributes to the longterm conservation of the significant fabric of that building and whether the demolition or removal is justified for the development of land or the alteration of, or addition to, a building. Based on the evidence before us, we find the demolition of the rear hotel wing, and proposed new building, appropriate. In particular, having regard to its status under the Heritage Places Inventory (July 2008):
   • The demolition of the rear wing of the MCG hotel will not adversely affect the significance of the heritage place.
   • The rear wing lacks sufficient cultural, social or architectural significance to warrant its retention. The section of the former hotel that has the primary relationship with football (i.e. the front wing) is to be retained and partly refurbished.
   • The proposal will not adversely affect the natural or cultural significance of the heritage place, and the location, bulk, form and appearance of the proposed new building will not adversely affect the significance of the heritage place.
   • The new building is sufficiently set back and articulated to allow the MCG hotel to read as an independent element in the street, with the taller built form behind.
2. Specifically, for the purposes of the additional DDO-21 permit trigger, we consider that the proposal will sufficiently respect the scale and significance of heritage buildings on the site and in the immediate vicinity.
3. In relation to Mr & Mrs Morgan's third ground of objection (that the proposed development will be out of scale with the heritage character of the area), it will be apparent from our reasons that we consider this ground has not been established. [The 'scale' of development is also considered further, below, in its urban design and amenity contexts]. In relation to Mr & Mrs Morgan's fourth ground of objection (that there should be no further demolition of the 'C' classified MCG Hotel), it will also be apparent from our reasons that we consider this ground has not been established.
4. To the extent there are differences in the opinions of the heritage consultants on these heritage issues, it will be apparent that we have generally preferred the detailed analysis and evidence of Mr Raworth and Mr Lovell over that of Mr Trethowan, albeit that Mr Trethowan ultimately assisted the Tribunal with the further investigative work he had undertaken in relation to the history of the MCG Hotel.

1. There was no evident dispute between the parties regarding the suitability of the site for redevelopment to meet urban consolidation objectives, and Mr & Mrs Morgan indicated that they were not against development per se. The site has a number of locational characteristics which indicate that it can be developed to further the urban consolidation objectives of the planning scheme. The Local Planning Policy Framework envisages this to be an area where built form character change is envisaged, that is moderate change. The site is in an established area with access to all necessary infrastructure, and is proximate to a range of services including public transport.
2. The issue is therefore one about the scale of development, rather than development per se. We will therefore not undertake an analysis of the proposal against the individual policies of the planning scheme which relate to increasing densities within the existing urban areas of Melbourne. It is sufficient to indicate that we accept the largely uncontested evidence of Mr Biasci and his detailed analysis of this issue on behalf of Thakral, supported by the Council's submissions, and we are satisfied that the proposal is consistent with these policies.

1. Mr Morgan's first and second grounds of objection are that the proposed development is an overdevelopment of the site, and that the proposed development will adversely affect the amenity of the neighbourhood. This latter ground is interpreted to be the amenity of the neighbourhood through design, and more tangible elements such as overshadowing or overlooking. We will address all of these issues in the context of the overall urban design, as well ad the additional permit trigger now arising under the DDO-21. We will also separately address some particular amenity considerations raised by the parties.
2. The existing built form character of Wellington Parade in the vicinity of the proposed development is dominated by the 20 storey Hilton Hotel (immediately to the west) and the 12 and 13 storey buildings immediately to the east of the site. The three buildings to the east of the site all extend across the full width of their sites. There is no gap between the buildings.
3. DDO-21, which covers 'Wellington Parade and Clarendon Street', applies to the site. DDO-21 establishes a number of design objectives including:
   • To enhance the importance of Wellington Parade as a key approach to central Melbourne through quality building design and street amenity;
   • To minimise the visual impact and overshadowing effect of buildings on the Fitzroy Gardens and Yarra Park;
   • To respect the scale and significance of heritage buildings on the site or on adjacent sites.
4. DDO-21 contemplates a height of development to 24 metres and 46 metres. The proposal, when it first came before us, did not require a permit under the DDO as it complied with the building heights and setbacks, As we have indicated, Amendment C174 has created an additional permit 'trigger', and it is now necessary for the Tribunal to consider all of the built form objectives of the DDO (i.e. in this case, the three objectives above), even where the proposal complies with building heights and setbacks in the DDO Schedule.
5. It was accepted by the parties that there is no overshadowing of buildings on the Fitzroy Gardens or Yarra Park. Mr & Mrs Morgan submit however that the proposal fails the first and third objectives of DDO-21. In particular, Mr Morgan submitted that the proposed building will dominate the historic buildings and have no positive impact on Wellington Parade as a key approach to central Melbourne.
6. The first objective of DDO-21 seeks to enhance the importance of Wellington Parade as a key approach to central Melbourne through quality building design and street amenity.
7. We should note first that we consider the proposed new building to be of a high quality design that fits well within the streetscape. We accept the evidence of Mr Sheppard in this regard, which was not materially contested.
8. We have already noted that the existing built form character of this part of Wellington Parade is dominated by the 20 storey Hilton Hotel and the adjoining 12 and 13 storey building to the east of the site. These latter buildings are constructed boundary to boundary to form a wall of buildings to Powlett Street. It is an appropriate design cue for any new development to continue this wall along Wellington Street, extending across the site. It is intended that the proposed new building replicates this character and is built to the east boundary. It then steps down to allow spacing between the building and the Hilton Hotel. We consider that this design will enhance the importance of Wellington Parade as a key approach. [The spacing between the proposed building and the Hilton Hotel also provides some amenity benefit to Mr & Mrs Morgan's property, albeit limited].
9. Having regard to the objectives of the DDO-21, we accept the evidence of Mr Sheppard that the proposed development to Wellington Parade will fit comfortably with the existing built form, and will reinforce the character of Wellington Parade as a key approach and boulevard entrance to central Melbourne. Given the adjacent development along Wellington Parade, the site can comfortably accommodate and clearly warrants a built form of some magnitude, and is within the height limit envisaged by the DDO and still slightly lower than the adjacent buildings. In this context, we do not consider the proposal to be an overdevelopment of the site.
10. Mr Morgan did not call planning or urban design evidence. Mr Trethowan would not be drawn on issues of urban design or height.
11. The third objective of DDO-21 also seeks to ensure that the proposed building respects the scale and significance of heritage buildings on adjacent sites, in this case Mr Morgan's property. Mr Morgan raised the concern that the proposed buildings will be visually dominating to adjacent historic places, including George Street, Yarra Park and his property at 193 George Street. In relation to George Street and his property, he submitted that a view to the sky should be retained.
12. We rely upon our earlier comments regarding the heritage considerations of this proposal. Our findings are clear. A consideration of the impact of the new building to heritage properties under the DDO must also be balanced against a consideration of the applicable height controls envisaged by the DDO. In this case, the proposal complies with the maximum preferred height control for this site. By reference to the DDO height control areas in DDO-21, it can be seen that the maximum preferred height controls are quite specific and differ, for example, between the Hilton Hotel and the adjacent development site.
13. The new residential component of the development is designed with two towers block A and B. Block B adjoins 176 Wellington Parade with the height decreasing to block A. Notably, there is a gap provided between block A and the existing Hilton Hotel. The gap increases as the building rises ranging from a setback of 4 metres to 13.4 metres. The development will be clearly visible from George Street and Mr Morgan's property.
14. To put the new development in context with its relationship with properties to the north, what is proposed is the retention of the Hilton podium wall behind 193 George Street and extending this wall eastward along the common boundary between the subject site and 187 George Street. This wall establishes the podium or communal garden level. This level includes a landscaped garden including a new 1.5 metre high metal picket fence along the northern boundary.
15. Given the predominance of high rise development within this area and viewed from properties to the north in George Street, the proposed development will not be an incongruous element in the neighbourhood.

1. Mr & Mrs Morgan raised several amenity concerns, including the visual bulk and massing when viewed from Mr Morgan's dwelling, overlooking and loss of privacy and the potential for leaves to drop from the trees proposed on the northern boundary (from the elevated garden level of the new building).
2. The appropriateness of the development must be considered in the context of the height and form contemplated by the planning scheme. The visibility of a large new building is not of itself problematic from a planning perspective, it is well designed within the context of its urban environment. As acknowledged in the oft-quoted decision of Rowcliffe Pty Ltd v Stonnington City Council[18]: "if mere visibility becomes a test across metropolitan Melbourne, then it would be virtually impossible to construct buildings above the prevailing scale. This, in turn, would render it impossible to achieve the clearly stated urban consolidation objectives expressed in the Planning Scheme ...".
3. At our site inspection, we noted that the visibility of the development will vary when viewed from within Mr & Mrs Morgan's property. At their pool level, the buildings will not be visible due to the height of the boundary wall. Inside their dwelling, within the conservatory area, the current view of the sky will be partially lost. The gap provided between block A and the existing Hilton hotel however maintains a view corridor of the sky. It serves to provide a level of built form relief to surrounding properties and maintain the view of the sky. The proposed development is also a highly articulated building with varying setbacks and materials.
4. The planning scheme informs us that a building of 46 and 24 metres is contemplated for the site and may be exceeded subject to a permit. The fact that the building is visible from certain vantage points of the Morgan residence and from George Street is not unreasonable. All things considered, we find the proposal has an appropriate relationship with its neighbours to the north.
5. Concern was raised that the proposed new building would have a detrimental impact on the amenity of Mr & Mrs Morgan's property from overlooking. There was a suggestion that residents of the new building will use the garden podium level and look into the Morgan's private open space. Mr Ishak expressed an opinion that there should be a 1.7 metre high north boundary fence along this podium level to prevent overlooking into the private open space, and that all north facing balconies of the proposed development should be screened to a height of 1.7 metres. We do not support these design changes for the following reasons.
6. The zoning and policy context shape our assessment of the proposal and the amenity expectations of neighbours to the subject site. The planning scheme informs us that the site is zoned Business 1 with a DDO permitting as of right a 46 and 24 metre high building, subject to meeting the overall objectives. The adjoining residents on the north side of George Street, with rear boundaries to commercial properties fronting Wellington Parade, cannot expect an interface with neighbours that is akin to the central residential core of East Melbourne. By virtue of the controls applying to the site, a bigger, more robust building is clearly envisaged by the planning scheme as appropriate for the subject site.
7. In assessing the amenity concerns of overlooking and visual bulk, we are also guided by the Guidelines for Higher Density Residential Development. These guidelines provide 'better practice' design advice for higher density residential development that promotes high quality public and private amenity and good design. In relation to the location and use of the garden podium level, the landscape plan details trees to be located along the northern boundary. These trees will create a landscape barrier between the title boundary with Mr & Mrs Morgan's property, and the podium level open space to be used by residents of the new building. We are satisfied that this landscaping is an appropriate design response, and will prevent any direct overlooking from the open space to Mr & Mrs Morgan's property, without the need for a higher fence along the podium.
8. In relation to views to and from residential units, it states that existing dwellings should be protected from potential overlooking in accordance with the requirements of clause 55 of the planning scheme. Clause 55.04-6 seeks to limit views into existing secluded private open space and habitable room windows on adjacent properties, and seeks screening within a distance of 9 metres. Here, at the upper levels, the proposed development is setback a minimum of 18 metres from the northern boundary of Mr & Mrs Morgan's property, and increasing to 25 metres. This well exceeds the established test of 9 metres, and the somewhat generous setbacks ameliorate the perceived amenity concerns both in the visual impact of bulk and in the perception of overlooking. Having regard to the proposed development, planning controls and policies, we find that the proposal will not have an unreasonable impact the private open space of Mr Morgan's property.
9. As to the matter of the leaves falling from trees proposed at the garden podium level, we note that the landscape plan details trees to a height of 3 metres, including Southern Magnolia, Leighton Green and Emerald Lustre. As we understand it, these are essentially evergreen trees where leaf-drop is unlikely to be a material issue. These trees could also be planted to ensure that their foliage remains within the site boundaries. The benefit of the landscaping is the greening effect from an otherwise urban elevation, and we believe the benefits of this landscaping clearly outweigh any perceived disbenefits. We nonetheless encourage Thakral and Mr & Mrs Morgan to discuss in good faith the final form of any boundary planting in an endeavour to address any lingering concerns on this issue.
10. Mr Morgan also suggested the trees were of a height that would not grow on the garden level podium. To form this view, it appeared Mr Morgan may have wrongly scaled the trees from the building plan elevations - we have however relied on the draft landscape plan. Moreover, there are many examples of relatively large trees growing on rooftop podiums, including for example at Crown Casino.
11. In relation to Mr & Mrs Morgan's first and second grounds of objection (that the proposed development is an overdevelopment of the site, and that the proposed development will adversely affect the amenity of the neighbourhood), it will be apparent from our reasons that we consider these two grounds have not been established.

1. At the conclusion of the hearing, the Tribunal discussed the proposed permit conditions contained in the Council's Notice of Decision dated 9 April 2010. Both the Council and Thakral indicated they were satisfied with these conditions, without further amendment. Mr Morgan made no submission on the specific conditions in the Notice of Decision despite being given the opportunity to do so.
2. Having reviewed the conditions proposed by the Council, we are satisfied that they are appropriate for this development.
3. The decision of the responsible authority is therefore affirmed and a permit is granted, subject to the conditions contained in the Council's Notice of Decision and included in Appendix A to this decision.

Demolition, use and development of the land for the purpose of residential dwellings, extension to existing hotel ballroom, reception and administration areas and reduction in car parking in accordance with the endorsed plans.

1. The use and development of any land or building or part thereof as shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
2. A schedule and samples of all external materials, colours and finishes must be submitted to the satisfaction of the Responsible Authority prior to the commencement of the development. The schedule must show the materials, colours end finishes of all external walls, roof, fascias, window frames, glazing types, doors, balustrades, fences and paving, (including car park surfacing), outbuildings and structures.
3. Glazing materials used on all external walls must be of a type that does not reflect more than 15% of visible light when measured at an angle of 90 degrees to the glass surface, to the satisfaction of the Responsible Authority.
4. Prior to the commencement of the development, including demolition, a report prepared by a suitably qualified Structural Engineer, or equivalent, must be submitted, demonstrating the means by which the retained portions of building will be supported during demolition and construction works to ensure their retention, to the satisfaction of the Responsible Authority. The recommendations contained within this report must be implemented at no cost to Council and be to the satisfaction of the Responsible Authority.
5. Prior to the commencement of the development, including demolition or bulk excavation, a detailed construction and demolition management plan must be submitted to and be approved by the Responsible Authority. This construction management plan is to be prepared in accordance with the City of Melbourne - Construction Management Plan Guidelines and is to consider the following:
   • (a) public safety, amenity and site security;
   • (b) operating hours, noise and vibration controls:
   • (c) air and dust management;
   • (d) stormwater and sediment control;
   • (e) waste and materials reuse; and
   • (f) traffic management.
6. Prior to the commencement of the development, a Waste Management Plan must be submitted to the satisfaction to and approved by, the Responsible Authority: Engineering - Waste Services, When approved, the waste management plan will be endorsed and form part of this permit. The waste management plan must address the requirements of both the Hilton Hotel and the proposed residential development and consider the following:
   • (a) Proposed system for waste management including:
     • (i) Type of waste materials to be collected;
     • (ii) Location of waste storage;
     • (iii) Size and number of waste containers;
     • (iv) Frequency and time of collections; and
     • (v) Length and required turning circle of collection vehicles.
   • (b) Proposed access for users, collectors and collection vehicles. Consideration must be given to how waste will be deposited, where the waste will be collected from and the responsibility for the presentation, security and retrieval of the waste containers.
   • (c) Measures to address amenity, local environment and facility design. The following matters should be considered:
     • (i) Noise minimisation,
     • (ii) Litter reduction methods,
     • (iii) Prevention of stormwater pollution,
     • (iv) Ventilation,
     • (v) Container washing,
     • (vi) vermin prevention,
   • (d) Measures to ensure ongoing waste management practices. Consideration must be given to recycling of organic material, user education, vandalism protection, cleaning and maintenance etc.

When approved, the Waste Management Plan must be implemented by making any necessary changes to the provision of waste storage areas on site and ensuring that the operators of the hotel and occupiers of the buildings follow the procedures agreed in the plan, unless alternative procedures are approved in writing by the responsible authority.

1. Prior to the occupation of the development hereby approved, a stormwater drainage system, incorporating water sensitive urban design, must be constructed for the development and provisions made to connect this system to Council's underground stormwater drainage system in accordance with plans and specifications first approved by the Responsible Authority; Councils Group Manager - Engineering Services.
2. Any trees in the adjoining streets which are shown on the endorsed plans to be removed, relocated or replaced must not be removed, lopped or pruned without the prior written consent of Council's Manager Parks and Urban Design. All costs in connection with the removal or replacement of the trees, including any payment for the amenity value of a tree to be removed and two years maintenance of the replacement tree, must be met by the owner of the site.
3. A scheme for landscaping and planting in connection with the proposed development must be submitted for the approval of the Responsible Authority before development on the site commences. The agreed scheme must incorporate water sensitive urban design features and be implemented prior to the occupation of the development, or as otherwise may be agreed with the Responsible Authority and the areas concerned must be subsequently maintained to the satisfaction of the Responsible Authority.
4. Prior to the commencement of the use/occupation of the development hereby permitted, all necessary vehicle crossings must be constructed and all unnecessary vehicle crossings must be demolished and the footpath, kerb and channel reconstructed, in accordance with plans and specifications first approved by the Responsible Authority - Council's Group Manager Engineering Services.
5. Existing street levels in Wellington Parade and Corporation Lane CL 1557 must not be altered for the purpose of constructing new vehicle crossings or pedestrian entrances without first obtaining written approval from the Responsible Authority - Council's Group Manager Engineering Services.
6. No advertising signs shall be erected, painted or displayed on the land without the permission of the Responsible Authority unless in accordance with the exemption provisions of the Melbourne Planning Scheme.
7. Prior to the occupation of the development, all conservation works shown on Drawing TPOO7 Revision B received on 12 February 2010 shall be carried to the satisfaction of the Responsible Authority.
8. 'No Right Turn" and 'Left Only" signs shall be placed back to back at the entry/exit splitter island to the satisfaction of the Responsible Authority to restrict movements into and out of the driveway to left in/left out only.
9. All work shall be carried out at no cost to VicRoads and the responsible Authority
10. Work site traffic management to be in accordance with "Road Management Act 2004 - Worksite Safety Traffic Management - Code of Practice" and AS 1742.3 - 2009 Part 3 Traffic control devices for works on roads. if traffic congestion becomes excessive at anytime, the contractor must lake measures to ease congestion.
11. A traffic management plan is to be submitted to Vic Roads for its consideration at least 14 days prior to commencement of works on site. No traffic management devices are to be installed on Wellington Parade until Vic Roads issues authorisation for the erection of those devices in accordance with the traffic management plan
12. Prior to the commencement of the development, the applicant must submit to Council for approval a plan showing the location of bicycle parking spaces, showers and change rooms for hotel staff in accordance with the provisions of Clause 52.34 of the Melbourne Planning Scheme.
13. The maximum noise level emitted from the premises must not exceed levels specified in the State Environment Protection Policy (Control of Noise from Commercial, Industrial or Trade Premises within the Melbourne Metropolitan Area ), No. N-i.
14. This permit will expire if one or more of the following circumstances apply:
    • The development is 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; and/or
    • The use is not commenced within four years of the date of this permit.

The Responsible Authority may extend the date upon which. this permit expires only if it receives a request in writing before the permit expires, or within three months afterwards.

[1] Note: The permit requirement under clause 43.02 (Design and Development Overlay) was introduced by Amendment C174 on 18 November 2010.

[2] In some documents, this is referred to as two buildings of 12 and 14 storeys respectively, although the buildings are joined and appear in the elevations and photomontages as essentially a single built form.

[4] Counsel for Thakral also indicated that it was not the owner of the land at the time the Hilton Hotel was constructed, and his client did not necessarily have a full set of all building and survey drawings from that period. Nonetheless, after enquiry and during the course of the hearing, he was able to provide a plan demonstrating to our satisfaction that there was unlikely to be any encroachment of Mr Morgan's property. If, despite this, there is still a live encroachment issue, that is not a matter within the Tribunal's jurisdiction to resolve in the proceeding before us.

[5] Mr & Mrs Morgan had been involved in proceedings relating to earlier proposals for redevelopment at this site, including those in PCH Melbourne Pty Ltd Melbourne City Council [2002] VCAT 301, and the proceedings leading to the decision in East Melbourne Group Inc v Minister for Planning & Anor [2008] VSCA 217.

[6] By way of example, we noted that the 1970 building plans for the Hilton Hotel sought by Mr & Mrs Morgan were not relevant to the issues raised in the proceeding before us. Mr Morgan had been told that the historical Town Clerk office files he sought were at the Public Records Office, yet he had made no attempt to search them there. Despite having competent legal advisers, Mr Morgan had also at that time made no Freedom of Information request, nor sought documents held by Heritage Victoria or the Minister for Planning, nor sought discovery in the proceeding against the Council or Thakral, nor sought to have any documents produced under summons.

[7] Delegated planning application report prepared by Josephine Lee (undated) leading to the recommendation on or about 25 March 2010 to grant a permit subject to conditions.

[8] Council written submission at [24]

[9] Under s 84B of the Planning and Environment Act 1987, the Tribunal must have regard to all matters that the Council did or should have taken into account or had regard to.

[10] The 'additional' permit trigger was actually the re-instatement of a permit trigger that had existed under an earlier version of the planning scheme. Under established planning law principles, the Tribunal must apply the planning scheme in force at the time of its decision, and we must therefore have regard to the DDO change.

[11] Correspondence from Department of Planning and Community Development dated 25 January 2011 acknowledges receipt of an application for renomination of the MCG Hotel 180 Wellington Parade East Melbourne to the Victorian Heritage Register.

[12] We understand the basement was closed due to partial flooding and safety concerns.

[13] Heritage Places Outside the Capital City Zone.

[14] Under clause 43.01 of Melbourne Planning Scheme.

[15] Heritage Council Registrations Committee, Hearing Friday 22 October 2004.

[17] Plans contained in Attachment 5 Mr Morgan's submission. Photographic Archival Survey of MCG Hotel.

[18] [2004] VCAT 46