In determining these applications, the tribunal is not required to consider an application for dwelling use in application P3296/2005. Clause 34.01-2 is relevant to the tribunal's consideration in terms of the decision guidelines under the provisions of the clause when a permit is required for a use as in the case of application P3295/2005. The extent of the tribunal's jurisdiction under clause 34.01-2 is limited to the requirement for a permit, namely the dwelling use in application P3295/2005. This does not include specific consideration of the matters referred to under the subheading 'amenity of the neighbourhood' in clause 34.01-2. The provisions of clause 52.06-2 do not trigger a permission which may be the subject of an application for review by an objector and in exercising its discretion under clauses 52.06-1 and 52.06-3 it is not relevant to the tribunal to consider the issues raised as a, b, c and d by the objectors.

For Applicants for Review P3295/2005 and P3296/2005

Ms J Davis of Counsel instructed by Hansen Partnership

1 Both applications for review have commenced before Members Baird and Taranto. A number of legal issues are said to have arisen and have resulted in a number of legal questions being defined by the parties. The Tribunal has been reconstituted with a legal member to allow these issues to be considered in accordance with Clause 66 Schedule 1 Victorian Civil and administrative Tribunal Act 1998.

2 The legal questions to be considered are as follows:

•

Are the dwellings in the 545 Esplanade application a section 1 use for the purposes of the applications for review?

•

Is clause 34.01-2 of the scheme relevant to the Tribunal's jurisdiction in each of the applications for review?

•

If a permit for dwellings activates considerations under clause 34.01-2, what is the extent of the Tribunal's jurisdiction?

•

Whether the provisions of clause 52.06-2 trigger a permission which may be the subject of an application for review by an objector?

•

In exercising the discretion under clause 52.06-1, 52.06-3 and (subject to the answer to the preceding question) clause 52.06-2, whether it is relevant for the Tribunal to consider the proposal by the objectors that:

a.

there be a continuous rear right of way includes part of the rear of the land at 545 Esplanade;

b.

all shops be at the street line;

c.

footpath levels remain as existing;

d.

the access for the residential component of the proposal be direct to the street.

3 Application P3295/2005 is for a 6 storey building comprising 41 dwellings, café and shops at 595 The Esplanade and application P3296/2005 is for a 5 storey building comprising 31 dwellings, café and shops at 545 The Esplanade, Lakes Entrance. Both applications for review have been brought by persons who objected to the applications following a determination by the Responsible Authority in both applications to issue a Notice of Decision to Grant a Permit.

4 It is common ground that the subject land in both applications is within the Business 1 zone (clause 34.01) and affected by the Land Subject to Inundation Overlay (clause 44.04) under the East Gippsland Planning Scheme. The use of the land in both cases for food and drink premises (café) and shop are listed as 'permit not required' as of right uses under section 1 of the table of uses.

5 Apart from the issue as to whether a permit is required for the use of the land in both instances for dwellings the other permissions said to be required under the planning scheme for each proposal is as follows; buildings and works[1]; dispensation for car parking[2]; dispensation for a loading bay[3]; access to a category 1 road[4]; bicycle parking[5] and in the case of 545 The Esplanade subdivision[6].

6 Under some of the provisions of the planning scheme that require a permit there are provisions which indicate that notification requirements under section 52 of the Planning and Environment Act 1987 (the PE Act) and review rights of third party objectors under section 82 of the PE Act are exempt.

7 In relation to the current applications this exemption provision clearly applies to an application for buildings and works under the provisions of clauses 34.01-4 and 44.04, and to an application for subdivision under clause 34.01-3.

Are the dwellings in the 545 The Esplanade application a section 1 use for the purposes of the applications for review?

8 This question arises only in relation to application P3296/2005 relating to 545 The Esplanade as in application P3295/2005 relating to 595 The Esplanade it is conceded that a permit is required for the dwelling use component of the proposal.

9 Under the provisions of the Business 1 zone clause 34.01-1 provides a table of uses divided into three sections. Section 1 provides a list of uses which do not require a permit, section 2 indicates uses that do require a permit and section 3 lists uses that are prohibited within the zone.

10 Dwelling is listed in section 1 of the table of uses; opposite this use is a condition which provides 'any frontage at ground level must not exceed 2 metres'. In relation to this condition the planning scheme provides at clause 31.01 that if a condition opposite the use in section 1 cannot be met, the use is in section 2 and a permit is required, unless specifically prohibited under section 3.

11 The permit applicant contends that the condition opposite dwelling is met and therefore a permit is not required, whereas the Responsible Authority and the applicant/objectors contend the condition is not met and a permit is required for the dwelling use component of the proposal.

12 I was advised that in relation to the 595 The Esplanade development there is to be a café and shops (previously a restaurant at the application stage) fronting The Esplanade with separate direct access off The Esplanade. There is also to be a separate entry foyer at ground level fronting The Esplanade for access to the dwellings above and it is this separate entry foyer that is said to exceed 2m at the frontage and therefore does not meet the condition requirements. It was also submitted that this proposal could be classed as a residential building and would fall under the term accommodation a section 2 permit required use. There is also direct access from The Esplanade at the front of the building to the car park to be used by the dwellings further suggesting that the condition opposite the use in terms of dwelling is not met.

13 The development at 545 The Esplanade proposes four shops at ground level with access to two of the shops directly from The Esplanade and access to two shops located centrally from either a central forecourt or internal access way. There is a central forecourt at the front of the building which narrows into an access way that extends from the forecourt through to a car park at the rear; the central forecourt and access way allows access to the car park, shops and via a lift or stairs to the dwellings to be located on the levels above. The plans with this proposal clearly indicate the forecourt and access way exceed 2m in width and depth.

14 Both the terms 'dwelling' and 'frontage' are defined under the planning scheme:

A building used as a self contained residence which must include:

It includes out-buildings and works normal to a dwelling.

The road alignment at the front of a lot. If a lot abuts two or more roads, the one to which the building, or proposed building, faces.

15 In both applications the land fronts The Esplanade. The land at 545 The Esplanade has a rear abuttal to two rights of way. Whilst 'road' is not defined within the planning scheme it is defined in the PE Act[7]. As a result of this definition it can be concluded that the land has an abuttal to three roads and as the building is to face The Esplanade this is its frontage.

16 Similarly 'building' is not defined in the planning scheme but is defined under the PE Act as including 'a structure and part of a building or structure'[8].

17 The dwellings as proposed fall within the definition of 'dwelling' in the planning scheme and a number of the self contained residences are within part of the proposed building being contained in the levels of the building above ground level.

18 No dwelling is proposed at ground level therefore in simple terms it could be said that if there is no dwelling at ground level then the dwelling cannot have a frontage at ground level and the condition is met. The condition however refers to 'any frontage'.

19 To access the dwellings it is necessary to enter the building at some point at ground level and the definition of frontage results in the conclusion that this access point to reach the dwellings on the upper levels is off The Esplanade. The entry off The Esplanade is via the forecourt which is wide and clearly exceeds 2m in either width or depth. A short distance into the building the forecourt area narrows to an access way which is over 2m in width. It is not until the end of this access way is reached and at the point of entry to the car park that there is a lift and set of stairs that provides access to the dwellings above.

20 Both the Responsible Authority and the applicant/objectors submit it is not relevant that the dwellings are not at ground level. It is contended that the relevant consideration for meeting the condition opposite the dwelling use is the access point to the building at its frontage.

21 I was referred to a number of previous decisions[9] of the Tribunal that have accepted a permit is required for the use of a dwelling in a Business 1 zone because the condition could not be met. Each decision turns on its own facts and circumstances. In Cooney access to two dwellings at ground level is directly from High Street. This access at its frontage is 2.7m in width. This access is described as providing 'primary pedestrian access' to the two ground level dwellings and a number of dwellings on upper levels. The decision indicates that shops which were also part of the proposal are accessed directly from High Street. There does not appear to be any indication that persons who wish to access the shops also require access via the 'primary pedestrian access' to the two dwellings at ground level. In Peddle Thorp it was concluded that because access to the upper level dwellings was via a car park similar to an entry foyer which exceeded 2m a permit was required.

22 Mr Bisset sought to draw the distinction between entry to the building generally and to its components as compared to entry to the dwellings. In this respect he submitted the forecourt and access way at ground level provided access not only to the dwellings above but also to the shops and the car park at ground level. Even if the building was subdivided this area would be common property providing access by the public to all areas including the dwellings and the owners of the dwellings could not preclude access to the ground level shops and car park. Although there was likely to be common property in the form of corridors or walkways on the upper levels it is possible that the dwelling owners could prevent general access at the commencement of these points, possibly at the lift or stair entry. Neither of these points of access is however at the frontage of the property.

23 To support this contention Mr Bisset also referred to the purpose of the Business 1 zone and this is of considerable relevance. The specific purpose of the Business 1 zone is 'to encourage the intensive development of business centres for retailing and other complimentary commercial entertainment and community uses'. Whilst he contended that a dwelling use is not unreasonable within a Business 1 zone and recognises the past history of a shop at ground level with a dwelling above, it is the commercial and business nature of a Business 1 zone that is promoted and should therefore be prominent along a street frontage in such an area and not the entry to a dwelling, which does not provide commercial activity.

24 He referred to other types of uses listed in section 1 of the table of uses in Clause 34.01 that are as of right provided they can comply with a similar condition: a child care centre, education centre and office. In particular he referred to the condition in relation to an office which provides that 'any frontage at ground level must not exceed 2 metres and access must not be shared with a dwelling (other than a caretaker's house), unless the office is a bank, real estate agency, travel agency, or any other office where the floor space adjoining the frontage is a customer service area accessible to the public'.

25 This lends support to his contention that the entry to a dwelling must not exceed 2m at the street frontage to ensure that the active commercial nature of a Business 1 zone is maintained. In the present case the active street frontage is to be maintained with the presence of 4 shops at ground level with an open forecourt and access way to a car park, the rear of shops and toilets for public use.

26 The reference in the condition to 'any frontage' opposite the particular use of dwelling leads me to conclude that this condition should be read as 'access to dwelling at the road alignment at the front of a lot at ground level must not exceed 2m'.

27 If the entry off the frontage provides direct access only to the dwelling component within a building in a Business 1 zone, whether located at ground level or at the upper levels of the building and this access exceeds 2m at the frontage of the building then it could reasonably be concluded that the condition opposite the dwelling use was not met. In such circumstances a permit would be required and this appears to be what the Tribunal has accepted in previous decisions such as Cooney and Peddle Thorp.

28 If however the entry at ground level provides access to other uses such as shops or a car park, open to the public, then unless the entry to the dwelling component of the proposal is a separate and distinct entry it could be concluded that the condition is met and there is no permit requirement for the dwelling component of the proposal. This conclusion is based on the purpose of the zone to ensure that active commercial frontages are maintained within the zone and not taken over by large entry areas to dwellings that are located on the street frontage. It is envisaged that entry to upper level dwellings could be provided at the rear of a central forecourt that is located at the frontage of the building, as in this case, and unless the central forecourt is for exclusive access to the dwellings the condition would be met.

29 In my opinion the dwellings in the 545 The Esplanade application are a section 1 use for the purposes of clause 34.01-1 of the Business 1 zone.

Is clause 34.01-2 of the scheme relevant to the Tribunal's jurisdiction in each of the applications for review?

30 Clause 34.01-2 is headed 'use of land' and has three subheadings entitled 'amenity of the neighbourhood', 'application requirements' and 'decision guidelines'. The first subheading provides:

A use must not detrimentally affect the amenity of the neighbourhood, including through the:

•

Transport of materials, goods or commodities to or from the land.

•

Appearance of any building, works or materials.

•

Emission of noise, artificial light, vibration smell, fumes, smoke, vapour, steam, soot, ash, dust, waste eater, waste products, grit or oil.

31 If a permit is required for a use under clause 34.01 then the subheading relating to 'application requirements' under clause 34.01-2 is required to be complied with and the Responsible Authority when considering such a use application and in turn the Tribunal is required to consider 'as appropriate' the matters listed under the subheading 'decision guidelines'. There is nothing under this subheading that particularly directs either the Responsible Authority and in turn the Tribunal to consider the matters referred to under the first subheading 'amenity of the neighbourhood'

32 The Responsible Authority and the permit applicant were of the view that the provisions of clause 34.01-2 under the first subheading do not add to the considerations required to be given where a use permit is required rather this provision applies to the on going use of land.

33 The applicant/ objectors on the other hand contended that once a use permit is required under the Business 1 zone then all the matters referred to under 'amenity of the neighbourhood' in clause 34.01-2 are open to full submissions by the applicant/objectors, there being no provision under clause 34.01-2 that exempts the requirement to give notice to third parties or to prevent third parties from review rights.

34 It is contended by the applicant/objectors that whilst they are exempt from arguing matters in relation to building and works under clause 34.01-4 as this permit requirement is exempt from notice and review rights of third parties the provisions of clause 34.01-2 allow for some of those issues that would arise under the exempt buildings and works consideration to be raised under the 'amenity of the neighbourhood' subheading and in particular the 'appearance of any building, works or materials'.

35 Clause 61.05 of the East Gippsland Planning Scheme provides that:

Land may be used and developed in accordance with this scheme.

Land must not be developed unless the land as developed can be used in accordance with this scheme.

If this scheme allows a particular use of land it may be developed for that use provided all requirements of the scheme are met.

36 Clause 34.01-2 refers to the use of land in a Business 1 zone. In circumstances where the planning scheme indicates that a permit is not required for the use of the land as concluded in relation to the dwelling component of 545 The Esplanade and for that matter the café and shop components of the proposal then clause 34.01-2 only comes into consideration at a point where it could be possible to say that all requirements of the scheme are not being met and this would occur after the use has commenced. As put by the Responsible Authority and the permit applicant this is an ongoing obligation.

37 This is also supported by the wording of the first subheading 'a use must not detrimentally affect the amenity of the neighbourhood' the way this part of the clause is worded suggests the use must have commenced to enable a consideration as to whether it is detrimentally affecting the amenity of the neighbourhood. This view is further supported by the considering the listed matters that could result in the use affecting the amenity of the neighbourhood.

38 In relation to ongoing obligations that are required to be complied with in the planning scheme there is at clause 34.01-4 a subheading 'Maintenance'. This does not appear to bear any relationship to the matters to be considered in an application for buildings and works but is rather a provision that places an ongoing obligation with regard to buildings and works within the Business 1 zone. In this respect 'all buildings and works must be maintained in good order and appearance to the satisfaction of the responsible authority'. As with the provision regarding the use not detrimentally affecting the amenity of the neighbourhood a development must be maintained in good order and appearance. If both of these provisions are read as separate stand alone provisions which relate to not only as of right uses but existing or non conforming uses and uses permitted under a permit then there is no inconsistency in relation to the provisions between the matters referred to under the 'amenity of the neighbourhood' subheading and the permit considerations for buildings and works.

39 In circumstances where a permit is required for the use of the land as in the case of 595 The Esplanade then clause 34.01-2 provides guidance to the Responsible Authority and in turn the Tribunal under the subheading 'decision guidelines'. Under this subheading reference is also made to the general decision guidelines in clause 65 of the planning scheme. There is nothing within the decision guidelines under clause 34.01-2 that specifically directs consideration as to the amenity of the area and whilst there is a reference in clause 65 to a consideration of 'the effect on the amenity of the area' both sets of decision guidelines indicate that consideration must be given to the matters referred to 'as appropriate'.

40 The subheading 'amenity of the neighbourhood' is of little use in consideration of whether a use should or should not be permitted as it is a provision couched in terms of consideration after the use has commenced not before.

41 In my opinion clause 34.01-2 is relevant to the Tribunal's consideration in terms of the decision guidelines under the provisions of the clause when a permit is required for a use and in the case of application P3295/2005.

If a permit for dwellings activates considerations under clause 34.01-2, what is the extent of the Tribunal's jurisdiction?

42 Both the Responsible Authority and the permit applicant in the proposed 595 The Esplanade development contended the issues to be considered under clause 34.01-2 are confined to the need for a permit. In this instance a permit for the dwelling use arises because the condition opposite the use in section 1 could not be met, that is the frontage at ground level exceeds 2m. It was contended therefore that the matters referred to in clause 34.01-2 relating to the amenity of the neighbourhood are to be considered only in the context of the need for a permit for the dwelling use because this use does not meet the frontage requirements.

43 In the application before the Tribunal relating to 595 The Esplanade it is understood the applicant/objectors wish to raise issues in relation to the height, bulk and mass of the building as well as wall treatments. There is under the provisions of the Business 1 zone at clause 34.01-4 a requirement for a permit for 'buildings and works' in other words the development aspect of any proposal. This is a separate and distinct issue and permit requirement to that in relation to use and clause 34.01-4 sets out a detailed list of application requirements and also a detailed list of matters the Responsible Authority and in turn the Tribunal, if required, must consider, as appropriate. Clause 34.01-4 specifically exempts an application for development from the notice requirements and review rights of third parties.

44 The issues the applicant/objectors wish to raise in relation to the height, bulk and mass of the building and wall treatments appear to relate more specifically to the 'buildings and works' or development aspect of the proposal rather than to the use or more specifically the use component that requires a permit namely, dwelling. These issues would be specifically considered under the matters to be considered by the Responsible Authority in clause 34.01-4 dealing with 'buildings and works' where the Responsible Authority is directed in the decision guidelines under that clause to consider amongst other matters 'the streetscape ... the treatment of the fronts and backs of buildings and their appurtenances...', 'the design of buildings to provide for solar access' and 'the interface with adjoining zones, especially the relationship with residential areas'. All of which are matters that are not open to review by third parties.

45 Ms Davis contended that once a permit is required, all issues relating to the use are subject to review. The issues must relate to the use in the context of the reasons why a permit is required. Mr Molesworth submitted 'the objectors must show that it is the use itself that of necessity gives rise to the particular appearance issue that offends their relevant amenity'. Although this may have limited application when the decision guidelines do not specifically direct the Tribunal to consideration of the impact the use may have on the amenity of the area in a Business 1 zone. There is a direction in the decision guidelines to consider 'the effect that existing uses may have on the proposed use'.

46 The decision of the Full Court of the Supreme Court in National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd and Anor[10] indicates the ambit of the Tribunal's enquiry is to be determined by the purposes or objects of the discretion to be exercised under the planning scheme. This decision has been referred to in a recent decision of the Court of Appeal[11] and by the President of the Tribunal[12].

47 In Sweetvale Her Honour Warren AJA stated:

The National Trust case was concerned with circumstances where the relevant planning control was silent as to conservation matters hence rendering the objection irrelevant. In the present case the Act and Scheme specify the matters to be taken into account and the exemptions that are to apply with respect to objections. In this matter the scope of relevant considerations to be applied by the responsible authority and, if needs be, the Tribunal on review, is defined by the Planning and Environment Act and the Scheme.[13]

It follows that no right of review to the Tribunal lies where an exemption is imposed. Any review is limited to those parts of the application for the permit to which the appellants were able to object in accordance with the Act and the Scheme. (See sections 60 and 84B of the Planning and Environment Act and clause 65 of the Melbourne Planning Scheme).[14]

48 In Iluka the President of the Tribunal having referred to Her Honour's comments in Sweetvale in relation the National Trust case stated:

The National Trust principle has a valuable role to play in the administration of planning in Victoria, Indeed, current planning schemes, which are based on the Victorian Planning Provisions, are predicated upon the application of the National Trust principle. These schemes contain many provisions which require a permit to be obtained in specific circumstances, which are designed to regulate use or development in those specific circumstances...If, upon an application for permit under one of the specific provisions, the decision maker was required to consider the full panoply of planning considerations set out in sections 60 and 84B of the Planning and Environment Act and in clause 65 of each planning scheme, planning decision making would grind to a standstill.[15]

49 Deputy President Gibson in Green Cape Properties Pty Ltd[16] also relied upon the decision of the Court of Appeal in _Sweetval_e where she stated:

The objectors in this case will be subject to the same constraints. It will not be open to the objectors to raise and rely upon issues relating to all aspects of the planning permit application. They will be confined to addressing those issues where the need for a permit is not exempt from third party objection, notice and review, namely the dispensation from car parking under clause 52.06 and any flooding issues arising under the Special Building Overlay.[17]

50 The National Trust principle was also relied upon by Balmford J in Shalit v Jackson Clement Burrows Architects Pty Ltd[18]. This decision as does Iluka and Green Cape Properties Pty Ltd relates to current planning scheme provisions. In Shalit the conclusion reached was that the permission required which was under the Special Building Overlay related only to flooding matters and did not extend to issues such as maintaining views.

51 In relation to the use of the dwelling component of the proposal the Tribunal's ambit of discretion relates only to the dwelling use and does not extend to issues such as the height, bulk, mass or wall treatments of the building in which the use is to be located these elements fall within what would be considered to be development considerations. As there is no right of review by the applicant/objectors in relation to the development aspect of the proposal they cannot raise these issues.

52 In my opinion the extent of the Tribunal's jurisdiction under clause 34.01-2 is limited to the requirement for a permit, namely the dwelling use. This does not include specific consideration of the matters referred to under the subheading 'amenity of the neighbourhood'.

Whether the provisions of clause 52.06-2 trigger a permission which may be the subject of an application for review by an objector?

53 Clause 52.06-2 falls under the particular provision of clause 52.06 relating to car parking. Clause 52.06-2 is headed 'Design and construction' and has a number of subheadings including 'Car parking plan', 'Provision before commencement' and 'Decision guidelines'. Under these provisions it is indicated that before any use commences or a building or works associated with the use is constructed a car parking plan must be prepared 'to the satisfaction of the responsible authority'. And in a similar vein before any use commences or any new building is occupied the matters relating to car parking namely the car spaces, access lanes, driveways and associated works and landscaping shown on the plan must be 'to the satisfaction of the responsible authority'.

54 There is no indication within this sub clause that a permit is required in relation to the design and construction in relation to a car parking plan. As there is no permit requirement there can be no review rights by an objector.

55 The subheading decision guidelines states that 'before deciding that any plan is satisfactory ... the responsible authority must consider'. In each of the subheadings there is a consistent reference 'to the satisfaction of the responsible authority'. It is therefore only the responsible authority that is required to be satisfied about the car parking plan and that the works shown on the plan have been carried out prior to the use commencing.

56 There is available a right of review to the Tribunal in relation to clause 52.06-2 but this is only available under section 149 PE Act to a specified person defined in section 148 PE Act as 'the owner, user or developer of the land directly affected by the matter'. Section 149 (1) (a) PE Act provides that a specified person may apply to the Tribunal for the review of 'a decision of a specified body in relation to a matter if a planning scheme specifies ... that the matter must be done to the satisfaction ... of the specified body'. Specified body is also defined under section 148 PE Act to include 'the responsible authority'.

57 In my opinion the provisions of clause 52.06-2 do not trigger a permission which may be the subject of an application for review by an objector.

In exercising the discretion under clause 52.06-1, 52.06-3 and (subject to the answer to the preceding question) clause 52.06-2, whether it is relevant for the Tribunal to consider the proposal by the objectors that:

a there be a continuous rear right of way which includes part of the rear of the land at 545 Esplanade;

d the access for the residential component of the proposal be direct to the street.

58 Clause 52.06-1 relates to 'Car spaces' and clause 52.06-3 relates to 'Design of car spaces and accessways'. Under both provisions there is reference to the requirement for a permit. In relation to clause 52.06-1 'a permit may be granted to reduce or to waive the number of car spaces required by the table' and under clause 56.02-3 'a permit may be granted to vary any dimension or requirement of this clause' namely the design of car spaces and accessways.

59 Under both clauses there are specific decision guidelines. In relation to the above matters listed as a, b, c, and d, I am unable to conclude that they have any relevance in relation to whether the number of car spaces should be reduced or that the dimensions of proposed car spaces or accessways be varied.

60 Any reference to the purposes under clause 52.06 of the car parking provision must be considered in terms of the permissions sought and in this respect the permissions are confined to narrow issues that do not relate to a rear right of way, shops to be at street line, existing footpath levels to remain and the location of access to the residential component.

61 In my opinion in exercising its discretion under clauses 52.06-1 and 52.06-3 it is not relevant to the Tribunal to consider the issues raised as a, b, c and d by the objectors.

62 Mr Molesworth raised a peripheral issue regarding the tribunal's power to modify proposed conditions in the Notice of Determination to Grant a Permit in circumstances where the conditions imposed are as a result of a permission that was exempt from review by the objectors and not the subject of an application for review by the permit applicant under section 80 PE Act.

63 It is my opinion that these conditions are not subject to the issues under review and therefore the tribunal has no jurisdiction to consider and if necessary or appropriate amend those conditions. It is not considered that the tribunal's broad power in section 85(1) (b) (ii) PE Act gives the tribunal power to amend or delete such conditions as this section applies only to the tribunal hearing an application for review and the issues raised by Mr Molesworth are not the subject of an application for review.[19]

[4] Clause 52.29 - alterations to access in 595 The Esplanade; as a result of subdivision in 545 The Esplanade

[7] Section 3 Planning and Environment Act 1987

[8] Section 3 Planning and Environment Act 1987

[9] Cooney & Ors v Darebin CC & Anor [2002] VCAT 666; Peddle Thorp Architects v Surf Coast Shire Council and Ors [2004] VCAT 901; PCH Melbourne Pty Ltd v Melbourne City Council and Ors [2002] VCAT 301; Dentow Pty Ltd v Stonnington City Council and Ors [2002] VCAT 306; C Dzanovski v City of Banyule [2003] VCAT 217; Melbourne Business Consortium v Monash City Council and Ors [2002] VCAT 107; Metaxas Architects (for Coulos Constructions Pty Ltd) v Moreland City Council [2004] VCAT 1752; Seacrest Pty Ltd and Brastsk Pty Ltd v Banyule City Council and Anor [2005] VCAT 733

[10] [1976] VicRp 60; [1976] VR 592

[11] Sweetvale Pty Ltd & Anor v Victorian Civil and Administrative Tribunal & Ors [2003] VSCA 83

[12] Victorian National Park Association Inc v Iluka Resources Limited [2004] VCAT 20 (5 January 2004)

[13] Sweetvale Pty Ltd & Anor v Victorian Civil and Administrative Tribunal & Ors [2003] VSCA 83 [16]

[15] Victorian National Park Association Inc v Iluka Resources Limited [2004] VCAT 20 (5 January 2004) [35]

[16] Green Cape Properties Pty Ltd v Bayside City Council, Ian Armstrong and Others [2005] VCAT 989 (24 May2005)

[18] [2002] VSC 528

[19] Huczek v Yarra City Council & Mark Holly & Associates [1999] VCAT 45