8 The land is within a Business 3 Zone, the purpose of which is "to encourage the integrated development of offices and manufacturing industries and associated commercial and industrial uses". Accommodation other than a caretaker's house is prohibited in this zone, however, the Applicant claims "existing use" rights under Clause 63 of the Scheme. A permit is required under Clause 34.03-4 of the Scheme to construct a building or to construct or carry out works. An application is also required for the use under Clause 63 of the Scheme.

9 In relation to existing use rights, Clause 63.10 states "if at least 50% of the gross floor area of a building or at least 50% of the area of any works is damaged or destroyed so that the use cannot continue without the building or works being reconstructed, the land must be used in conformity with this Scheme, unless a permit is granted to continue the use and to construct or carry out buildings and works."

10 It was common ground that Senior Member Byard's decision in Simmons Gilbert v Stonnington CC & Ors. (2003) VCAT 741 established that "intentional demolition" is included in the ordinary meaning of "destroy" or "destroyed". A permit may be granted for continued use or a new use that is less detrimental to the amenity of the locality under Clause 63.08 of the Scheme and a permit for buildings and works is required under Clause 63.05.

11 A Design and Development Overlay, Schedule 5, for CityLink Exhaust Stack Environs covers this land although a permit is not required for either use or development under this DDO.

12 Ms Lane also referred to section 60 of the Planning & Environment Act and Clause 65 of the Scheme as being matters to be taken into consideration.

13 In relation to the SPPF and the LPPF, a number of clauses, particularly Clause 17.02 of the Scheme and Clause 19.03, are applicable and the subject of consideration.

14 Melbourne 2003 has relevance as it encourages making activity centres Mixed Uses and encouraging medium to high density residential living in and around these activity centres.

15 At Clause 21.03 of the MSS, there is recognition that the industrial and economic base of the City of Yarra needs to be supported and managed. Clause 21.05-3 in relation to industry and commerce encourages a strong business base and promotion of new economic activities with restructuring of the local economy in the Yarra area and this has relevance to Cremorne. Clause 22.05 relates to adverse amenity impacts between land uses and ensuring that such do not locate next to residential land uses in Business Enterprise areas. This Cremorne area is supposed to be a Business Enterprise area.

16 It seems from the Officer Report and Ms Lane's submission that the proposal generally complies from a built form and design perspective with Clause 22.01 of the Scheme.

17 The Responsible Authority has also carried out strategic work on industrial and business activity with a study for Trends and Opportunity Analysis done by Ratio Consultants in June 2000 and the Yarra Industrial and Business Land Strategy Review of September 2004 carried out by Hanson Partnership together with Charter Ketch Cramer. Both of these studies recommend that the Business 3 Zoning remain for areas such as the Cremorne area and the review cites and the fact that there are 55,000 jobs in Yarra and a population of 67,000, which makes business and employment very important for the Municipality. Cremorne is seen as a viable business precinct.

18 Both Ms Lane and Mr Pitt tabled written submissions to which they spoke. Plans, photographs and other documents were tabled and these, together with the submissions, are retained on the Tribunal file. The written submissions and the other documents are quite detailed in nature and therefore it is not my intention to repeat the information contained in them or to repeat in detail the oral submissions supporting these.

19 While I did not allude to it and the provisions and other activities carried out by the Responsible Authority, there was a Traffic Report done by both Grogan Richards and GTA Consultants in relation to floor space parking ratios for this area. The report generally concluded that the ratio could be lowered as office areas increased. However, I think this has little bearing on the issue before me.

20 The Responsible Authority clearly has concerns about intrusion of residential developments and continuance of residential uses in an area in which it is encouraging the establishment and continuance of vibrant business and commercial activities. However, as Mr Pitt pointed out, the Zoning Plan itself shows large areas of Residential 1 and Business 3 interfaces. This seems to be different from the very small scaled plans shown in the Industrial and Business Activity Study. The plan accompanying the Industry and Business Activity Trends and Opportunity Analysis by Ratio clearly shows that Green Street is not included in the area for which that study was carried out. In fact, that area has an eastern boundary of the Railway Reservation and Green Street is on the eastern side of that.

21 In her submission, Ms Lane referred to a number of previous Planning Appeals Board and AAT decisions in relation to continuance of existing use rights. As Mr Pitt correctly pointed out, these were all determined before Clause 63.10 was put into the Planning Scheme. One of the big issues here is whether the granting of a permit for a total redevelopment of this site and a continuance of the residential use will entrench that residential use. While Ms Lane submitted this would be so, Mr Pitt took a contrary view saying that Clause 63.10 actually contemplates the entrenchment of existing uses by its very nature.

22 There was some discussion about whether any notice had been given to Mr Pitt's client in relation to a change of zoning and what previous zonings had been, however I do not believe these are of other than interest to me in this decision.

23 While I can understand the Responsible Authority's reluctance to accept the continuance of an existing use right, nevertheless I accept Mr Pitt's arguments that while there are not many residential buildings in this immediate location, there are a number of other larger residential areas within very close proximity to this site. It is also an ideal location being so close to major urban infrastructure of a commercial, retail, social and recreational nature, as well as being a stones throw from the Yarra River.

24 The Responsible Authority requested a plan showing how the building could be converted to a Commercial Office use. This was provided by Mr Pitt's client and in my view would result in a satisfactory conversion. The Responsible Authority in its "without prejudice" conditions has also asked for a condition that was personal to Mr Stafford, that, within six months of cessation of residential use, the building be converted for offices. This plan was submitted as TP.07. However, Mr Pitt rightly pointed out that it is only in exceptional circumstances that a permit should be made personal. Ms Lane offered alternative wording that Mr Pitt and I accepted. In my view Mr Pitt's contention that the previous Board and Tribunal decisions should not be given the same weight as Mr Byard's more recent decision is acceptable. I also view the ability to rely on the drawing TP.07 as a reasonable compromise and see no reasons therefore to uphold the Responsible Authority's decision. A permit will issue subject to the conditions as discussed at the hearing and TP.07 will be attached to the Tribunal decision.