2 cafes corner of Young & Argyle and Kerr & Napier Streets

1. Mr Rantino provided the following useful description of the site and its environs, which we adopt:

The subject site is a parcel of land bounded by Napier, Young, Argyle and Kerr Streets, Fitzroy. It has the following frontage to each of the streets:

• Kerr Street 74.5 metres;
• Napier Street 36.8 metres;
• Argyle Street 39.4 metres; and
• Young Street 45.7 metres;

yielding a total site area of approximately 3,650m2.

Vehicular access to the site is available from all street frontages except Napier Street.

The subject site is located within an area which includes a variety of different land uses and building forms including commercial, residential and some retail. The greater precinct is included within a heritage overlay identifying the area as being important in the context of the diverse forms of period building including residential and industrial typologies and notably including a number of the MacRobertson buildings.

A single parcel of land located on the south east corner of the intersection of Young and Kerr and is occupied by a two storey brown brick warehouse building with undercroft car parking from Kerr Street. A planning permit issued in 2002 (Planning Permit Application No. PLO1/lOl 5) resulted in the construction of a third level to the building and facilitating its use for the purpose of showroom at ground level with two dwellings at first and second floor.

The north side of Kerr Street is distinctly residential with buildings ranging between single storey cottages to more contemporary two and three storey townhouse developments. On the north west corner of Kerr and Napier Street, is a two storey Victorian building with the ground floor dedicated as a small café/restaurant. To the north east corner is one of the former MacRobertson chocolate factory buildings which has been converted into residential dwellings. The building presents as a two storey red brick building dedicated as a car parking area with two additional levels dedicated as residences.

Kerr Street is a two way, two lane street running in an east/west direction. Angled parking is available on the north side with some parallel parking available to the south.

Napier Street on the west side includes a portion of the subject site. Immediately interlacing with the site is a series of single storey Victorian collages. This row of six dwellings is of uniform building height with visible chimneys over the roofs, small front setbacks and limited detailing.

The east side of Napier Street is more diverse in form with a series of mainly single storey Victorian cottages with varied detailing. The streetscape includes early collages with gabled roofs and simple detailing to more ornate cottages with parapets and a single two storey Victorian terrace. On the south east corner of Napier and Kerr is a part three storey, part two storey, contemporary building constructed over a once vacant land.

Napier Street is a two way street running in a north/south direction. Angled parking is available on the east side with parallel parking on the west side.

The north side of Argyle Street once demarcated the industrial building forms previously associated with the subject site with the remainder of this section of the street which is residential. Existing built form includes both single and two storey Victorian terraces.

The south side of the street is industrial in character with a combination of single and two storey warehouse buildings with an open concrete apron car parking area on the corner of Argyle and Young Streets.

Argyle Street is a one way street with traffic running west bond, parallel parking is available on either side of the street.

The east side of Young Street beyond the subject site is the sideage of the building on the corner of Young and Kerr Streets which does not form part of the subject site. The building is a two storey brick wall with a roller door.

The western side of the street contains newer built form varying between two and three storey residential townhouses with on-boundary construction and industrial forms and material. Beyond Argyle Place is the sideage of one single storey period dwelling orientated to Kerr Street.

Young Street is a one way street with traffic running north bound. Parallel parking is available only on the east side of the street.

1. At the time of the Tribunal's previous consideration of the approved development the review site was occupied by a large industrial building, which covered most of the site and a three-level office building at the corner of Napier and Kerr Streets. The eastern part of the site abutting Argyle Street was part vacant and was used for car parking and part developed with a vacant single storey dwelling[2]. These buildings have now been demolished as authorised by the existing permit, and the site is vacant.
2. With the exception of the demolition of the buildings on the review site, no party was able to identify any changes to the land use or development pattern of the area surrounding the review site which have occurred subsequent to the Tribunal's consideration and determination of the approved development.

1. There has been no material change to the planning scheme controls as they relate to the review site and surrounding land which applied at the time that the previous Tribunal directed the grant of a permit for the approved development. It is sufficient therefore for us to record that that the site is zoned Mixed Use under the Yarra Planning Scheme, and that it is also affected by a Heritage Overlay and an Environmental Audit Overlay.
2. The Tribunal in the earlier case also provided the following concise summary of what it described as the complex web of policies applicable to the consideration of the application:
   1. The consolidation of new development within existing urban areas, the provision of more diverse housing forms, and the encouragement of new residential development in close proximity to public transport and other urban infrastructure.
   2. The achievement of a sustainable reversal of population decline in the City of Yarra.
   3. The promotion of mixed use zones and defunct industrial sites as opportunities for new residential development.
   4. The protection of neighbourhood character and heritage significance, and in particular the preservation of the prevailing nineteenth century and low rise character of the municipality.
   5. The encouragement of innovative contemporary architecture, and the avoidance of reproduction architecture[3].
3. The Tribunal also made reference to Melbourne 2030 as the most recent high level strategic policy statement relevant to the proposal at that time. The strategies and objectives of Melbourne 2030 have now been largely subsumed within Clause 12 of the Yarra Planning Scheme[4].
4. Amendment C84 to the Yarra Planning Scheme has been prepared by the Council and is intended to replace Clause 21 and most of Clause 22 of the Local Planning Policy Framework. It replaces the current Municipal Strategic Statement with a new Municipal Strategic Statement and revises the local policy section of the planning scheme. We were advised that the Amendment has been exhibited and that a Panel had been appointed by the Minister for Planning to hear submissions about the amendment and to make recommendations to the planning authority. We were advised that the Panel was scheduled to commence hearings on 1 May, 2007. At the time of the handing down of this decision, the amendment had not been adopted by the planning authority.
5. Under the provisions of Amendment C84 a vision for the municipality is specified, strategies and objectives developed under the themes of Land Use, Urban Form, Transport, and Sustainability. The municipality is also divided into a series of neighbourhoods for which strategies and objectives are identified. The review site is identified in the Residential Development Opportunities Map which forms part of proposed Clause 21.03 as a Strategic Redevelopment Site in a Heritage Overlay, and in the Neighbourhood Map for Fitzroy under proposed Clause 21.08-7 the review site is identified as a Strategic Redevelopment Site.
6. While Amendment C84 is a document which is relevant to our considerations it is not a document which can appropriately be accorded the weight of a seriously entertained planning proposal in accordance with the principles established under Lyndale and Black[5]. In any event we are unable to find any provisions of the amendment which change in any substantive form the strategic framework of the planning scheme as it currently relates to the review site and which was applicable to the site at the time that the Tribunal directed the grant of a permit for the approved development.

1. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. We inspected the subject site and its locality.

The relevance of the existing permit to our consideration of the current Application

1. We have outlined above the background to this application and in particular, we have noted that this site has been the subject of an earlier determination by the Tribunal. We have also noted that a permit for the use and development approved by the Tribunal remains alive because of the commencement of the approved development in the form of building demolition.
2. The relevance of the permit and of the earlier determination of the Tribunal, and the weight we ought to give to the existence of that permit, is a matter about which we received submissions from Mr Rantino and Mr Pitt. It is a matter which in all respects is fundamental to our consideration of this application because it defines the scope of our enquiry in this application for review. It is necessary therefore for us to record our findings on this issue at the outset.
3. It was Mr Rantino's submission that there are two ways of assessing the relevance of the permit in considering the proposal for the land now before us;

the extent to which, as a matter of law, the Tribunal is confined to an assessment of the differences between the development approved by the permit and the development now proposed.

the extent to which, in the exercise of the Tribunal's discretion (in assessing the planning merits of that now proposed) the Tribunal is to give weight to the fact that the permit authorises a particular form of development (and use).

1. Mr Rantino submitted that the Tribunal is not a court of record and is not bound by decisions of other divisions of the Tribunal, and, in like manner, it is not bound to treat an application or a new permit as an amendment to an existing permit. In Mr Rantino's submission we are bound to consider the application as a new application. Mr Rantino did quite appropriately concede however that in the exercise of our discretion, we are entitled to give weight to the existence of the permit and, therefore, to consider the differences between the development authorised by the permit and the development now proposed.
2. We agree with those submissions. The Tribunal is not bound by the decisions of other divisions of the Tribunal. Similarly, mechanisms and procedures are available under the Planning and Environment Act 1987 to facilitate the consideration of amendments to permits, but these have not been pursued in this matter and we are required therefore to consider the current proposal as a new application, rather than as an amendment to the existing permit.
3. As Mr Rantino did concede however, we are entitled to give weight to the existence of the permit and the critical issue for us therefore is what weight ought to be given to that permit in the exercise of our discretion.
4. Mr Rantino submitted that in answering that question, it is relevant for us to consider the reasoning of the Tribunal which ultimately lead to the grant of the permit. In this respect it was submitted that the architectural quality of the building played a big part in the Tribunal's decision to direct the grant of a permit, but that the same architectural quality is not displayed in the application now before us. The shortcomings of the current proposal were said to relate to inconsistencies in the submitted plans, changes to the internal layout of the proposal, and changes to the external expression of the building flowing partly from internal changes and partly from changes to the palette of materials. Mr Rantino submitted that if the Tribunal concluded that the current proposal did not display the architectural qualities which so influenced the earlier Tribunal, we are entitled to reject outright that which is now being proposed.
5. Mr Pitt submitted that, having regard to the existing permit, the primary focus for the Tribunal in this matter ought to be on the effect of the differences between the approved development and that now proposed. Mr Pitt relied on the decision of the Supreme Court in Austcom Pty Ltd v Buckerfield [1999] VSC 23 in support of his submission. In that matter Her Honour Justice Balmford concluded that in circumstances where a permit had been issued by the Responsible Authority for a four storey building and the application before the Tribunal was identical to that for which the Responsible Authority had granted a permit, save that the proposal was now for a five storey building, the Tribunal was entitled to find that the only matter in contention was the height of the proposed building.
6. Mr Pitt also referred us to a number of subsequent Tribunal decisions which had followed Her Hounour's findings in Austcom[6].
7. For the reasons which were clearly enunciated by Her Honour in the Austcom decision, we are of the view that the approach urged on us by Mr Pitt is the correct approach. In that decision Her honour said:

By virtue of the issue of permit TP98/90, it is permissible to use 52 Jolimont Street for a four storey block of flats, in accordance with any conditions of that permit (the text of which was not before the Court). The Tribunal was not dealing with an appeal against the issue of that permit, and it would have been inappropriate for it to revisit the issue of that permit. It found that, given the issue of the permit, the only matter in contention was the height of the proposed building. That, as I have found, was a finding of fact, and it was one which the Tribunal was entitled to make.......[7]

Assessment of the differences between the approved development and the current Application

1. In reality the principal difference between the submissions of Mr Rantino and Mr Pitt on the issue of the weight to be given to the existing permit, relates to the magnitude and significance of the differences between the approved building and the current proposal. In Mr Rantino's submission the building we are now considering is different from that previously approved and fails to achieve the high standard of architecture which previously impressed the Tribunal. Consequently it was submitted that we ought not accord great weight to the existence of that permit. In Mr Pitt's submission the scale of the approved building, its architectural expression and relationship to surrounding built form, are unaffected by the changes proposed for the building which is the subject of this review.
2. We have detailed previously the differences between the approved and the proposed buildings. Any objective analysis of the impact of these changes must lead to a conclusion that these differences can only be described as a having a minimal impact on the external expression of the building. Mr Biles in his evidence described the differences between the height, composition and form of the building proposed in the current application and the building approved under the existing permit as "imperceptible from all viewpoints". We agree with that description.
3. We make this finding notwithstanding that we do have some reservations with respect to one aspect of the proposed changes to the internal layout and palette of external materials. In particular we are not satisfied that the changes proposed for the curved element at the Young and Argyle Street corner are appropriate. In the approved plans this element is composed of a concrete render and the rooms internal to it at each level were described on the plans as studio/office. This element is replaced in the current application with a wire mesh treatment with dwellings behind.
4. We consider this to be a poor design response, both from the perspective of the appreciation of the building's external presentation and the amenity of the dwellings located behind the wire mesh.
5. We do not however regard this as being fatal to the application and, to the extent that further changes are warranted, these are capable of being addressed by way of permit conditions. We have imposed conditions which in effect require that the plans revert to a treatment more closely resembling that previously approved.
6. With respect to the differences in internal layout between the approved plans and the current proposal, we acknowledge that these are more substantial than the external differences we have dealt with above. These changes were the focus of Mr Rantino's criticisms of the current proposal and it was his submission that the Applicant has attempted to replicate the exterior of the development approved by the 2003 permit, and that what is now proposed is one architect's floor plans superimposed over another architect's elevations.
7. In our view this criticism is unfounded and in any event not especially relevant to any assessment of the weight which ought to be accorded to the existing permit. The tests which we think need to be applied are, firstly, whether the internal layout changes contribute to any significant changes to the external expression of the building, a matter about which we have already made findings, and secondly, whether the proposed internal layout continues to provide a level of internal amenity which is acceptable. If we were to accept Mr Rantino's point that the internal layout ought to have some bearing on our assessment of the current proposal's architectural quality in comparison to that of the approved development, it would be reasonable for us to assess whether the current proposal provides an equivalent level of internal amenity to that provided by the approved plans.
8. We were presented with submissions and evidence during the hearing addressing internal amenity issues. This material included a detailed summary prepared by Council officers outlining concerns about matters such as internal overlooking, secondary daylight and ventilation, size and location of balconies. The Council relied on the evidence of Mr Hutson with respect to these matters while the applicant relied on the evidence of Mr Govenlock and Mr Biles.
9. The criticisms of the internal amenity of the proposal need to considered in the context that in a development of the scale proposed here, there will inevitably be a variation in the quality of amenity between dwellings with some, for example, enjoying northern orientations and panoramic views, while others will not. All dwellings will however need to meet the minimum standards for daylight and ventilation incorporated within the Building Code of Australia. However we do not necessarily regard this as an optimum design solution. Similarly the quality of amenity of dwellings in a development of this type needs to be considered in the context of the lifestyle choices of future occupants, many of whom will happily trade the benefit of living close to public transport, employment and entertainment for a reduced level of internal amenity.
10. When considered in this light many of the criticisms levelled at the proposal are not substantiated. We do not think for example that it is unreasonable, for some rooms within some dwellings to have some reliance on borrowed light. We note in this respect that the Council's very detailed analysis identified 35 dwellings (out of 134) within which some rooms, including second bedrooms, kitchens and rumpus rooms, have some reliance on borrowed light. Other criticisms relating to matters such as the need for screening of windows and balconies to deal with internal overlooking are matters capable of being addressed through permit conditions.
11. Other changes incorporated into the current proposal represent in our view, significant improvements to the internal amenity. We note in particular the increase in the size of the internal courtyard, the provision of layouts for individual dwellings, and the conversion of some dwellings designated in the approved plans as single level, into multi level dwellings.
12. We have concluded therefore that the proposed development provides an acceptable level of internal amenity and, subject to the further changes we have required by way of permit condition, at least equivalent to the standard of amenity provided in the approved plans.
13. We do not agree with the Council's submission that inconsistencies between the floor plans and elevations are an indication that the architectural quality of the proposal has been compromised. We regard the inconsistencies identified by the Council as being relatively minor and certainly not of a magnitude that would convince us that they are fatal to the application.
14. Nor do we agree that the fact that the existing permit will expire in 2008 unless the development is completed before that time, is sufficient to reduce the weight appropriately given to the permit. The opportunity to extend the permit is available and the tests to be applied in determining an application to extend a permit are well established[8]. We share Mr Pitt's confidence with respect to the prospects of a successful application to extend the permit.
15. The final matter we need to address in assessing the differences between the approved plans and the current proposal relates to the provision of car parking.
16. The Council did not oppose the reduction in car parking from 204 to 147, but this was a matter which was the subject of submissions from objectors, most of whom expressed strong opposition to the proposal on traffic related and car parking grounds.
17. We were assisted in our assessment of this aspect of the proposal by the evidence of Mr Fairlie. It was Mr Fairlie's evidence that the reduction in the quantum of parking spaces together with the small reduction in the number of dwellings, would have the effect of reducing both peak hour and total vehicle trips associated with this proposal compared to that previously forecast for the approved development. Mr Fairlie also concluded that the design of the basement car park and the access arrangements are satisfactory, subject to minor modification recommended by him, and that traffic generated by the proposal is capable of being accommodated on the street network.
18. We accept Mr Fairlie's evidence on these matters and we note that no contradictory expert evidence was presented to us.

There is no basis to depart from the earlier decision of the Tribunal.

1. We have found in this case that, subsequent to the decision of the Tribunal in Ashlyn Enterprises Pty Ltd v Yarra City Council [2003] VCAT 87, there has been no material change in the planning provisions as they apply to this site. Except for the demolition of buildings authorised by the existing permit, we have also found that there has been no change to the built form context of the site. We have found that the differences between the approved development and the development proposed in the current application are, subject to further minor amendments, of no great substance. We are of the view in fact that many if not all the changes proposed in the current application are of the type that could be dealt with by way of secondary consent.
2. In these circumstances we agree with Mr Pitt's submission that in the absence of a material change of circumstances or in the proposal itself, the earlier decision of the Tribunal is to be followed. This principle has been formulated and followed by the Tribunal over many years, and Mr Pitt referred us to a number of relevant decisions on this point. The principle is concisely articulated in Rowcliffe Pty Ltd v Stonnington CC [2005] VCAT 1535 in which it was stated that:

Although the Board believes that it should deal with this appeal on its merits it also holds that, in determining the appeal, it should pay regard to the previous decision of the Board and give great weight to that decision. Public policy demands that there be some end to litigation. If applicants were to repeatedly come before the Board, perhaps seeking to exhaust the patience of the Board or even in an attempt to pick and choose a suitable division of the Board to hear the appeal, then it would be to the detriment of the appeals system. Moreover repeated appeals would impose unnecessary costs on respondent parties including, in some cases, psychological costs. One can imagine a case where a developer wears down both a Responsible Authority and objectors by repeatedly making fresh applications. This ought to be discouraged.

The doctrine of "repeat appeals" is founded in the comments of the Planning Appeals Board in Amoco (Australia) Ltd v Berwick CC (1983) 1 PABR 166. In that case the Board cited with approval the following passage from the decision of Watkins v MMBW (1977) 9 VPA 184 at 187:

We should also state that as a matter of principle the Tribunal should act with great caution when considering whether a previous decision should be reversed. A change in circumstances warranting a different view must be positively shown otherwise the reversal of earlier decisions would introduce such a state of inconsistency into the appeals system that chaos could occur with unsuccessful parties applying and appealing time after time.

In summary, then, the Board believes that an applicant can make repeated applications for a permit and repeated appeals to this Board. However in determining any subsequent appeal the Board should take the earlier determination into account and give it great weight. Generally speaking the earlier decision should not be reversed unless the applicant can show a change in circumstances which warrant a different view.

1. It is appropriate to comment on the submissions presented to us by objectors to this application. Many of the submissions we received we detailed and obviously based on considerable research and effort. In very broad terms we think that the major thrust of those submissions was that the proposal is of an excessive scale and height, its architectural form is a poor response to the character and heritage of the locality, and that it will have unacceptable impacts on the amenity of the neighbouring residents.
2. During the course of the hearing we were presented with a plan prepared by Mr Storey, an objector and an architect himself, which showed a building of a smaller scale and lower height than that currently proposed and which in his submission represented an appropriate design response in terms of scale and massing to the site's heritage context. Indeed, based on our inspection of the area, we are of the view that a reduction in the height of the three storey mansard proposed on the corner of Kerr and Napier Street would result in a more appropriate contextual interface in this location.
3. The plans presented by Mr Storey however are not the application plans in this matter and they are not the plans we are required to consider. We do make the observation however that the plans presented by Mr Storey were not dissimilar to those that constituted the application plans presented to the Council in September, 2006.
4. It occurs to us that it is unfortunate that the Council, as part of the processing of the application, did not see fit to take the opportunity presented to it by the applicant, to pursue a development which more closely reflected a built form which we understand, based on the submissions we received, to be more aligned with the views of its community.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit be granted.
2. In deciding the conditions to be included on the permit we have had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.

[1] Ashlyn Enterprises Pty Ltd v Yarra City Council [2003] VCAT 87

[4] Amendment VC34 gazetted 22 September, 2005.

[5] Lyndale & Black v Melbourne CC & MMBW (1993) 1 PABR 207

[6] We were referred to Isai v Darebin CC [2000] VCAT1657, Allen v Port Phillip CC [2004] VCAT 268, and Deal Corporation Pty Ltd v Yarra CC [2003] VCAT 573.

[7] Austcom Pty Ltd v Buckerfield [1999] VSC 23 at para 14.

[8] Refer to the decision of Ashley J in Kantor v. Murrindindi SC, a Supreme Court decision of 1997 reported at 18 AATR 285.