Mr Ragu Appudurai, Barrister, appeared on behalf of the Responsible Authority, Melbourne City Council.

Mr Peter Jewell, Town Planner, appeared on behalf of the Windsor Hotel, an applicant for review.

Mr Martin Verhoeven, Town Planner, appeared on behalf of T.B.T (Vic) Pty Ltd, an applicant for review.

Mr Bruce Trethowan and Mr Cameron Ritter, Architects, appeared on behalf of the National Trust of Australia (Vic) an applicant for review.

The following individual applicants for review either appeared before the Tribunal or made written submissions:

* Mr Dennis Sabbadini, of the Italian Waiters Club Restaurant;

* Mr Norman Anderson, Body Corporate of the Prima Apartments, and

Ms Susan Brennan, Barrister, appeared on behalf of Bourke Hill Holdings Pty Ltd, the respondent/permit applicant. Ms Brennan called the following witnesses in support of her submissions:

1. This is an application to review the decision of the Responsible Authority to permit a small modern nine level building at 22 Meyers Place, Melbourne. Twenty-two Meyers Place is essentially the rear portion of a larger L-shaped lot which extends from the south side of Bourke Street through to Meyers Place. The proposed building will occupy the southern arm of this L which fronts onto Meyers Place. The parties and the witnesses in the appeal made both written and verbal submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the appeal site and its locality during the course of the hearing.

2. As is commonly the case, particularly in Central Melbourne this particular proposal requires permission under a number of provisions of the planning scheme. However, the ambit of discretion available to the Tribunal in the context of this application for review was a significant issue in the hearing, because of the extensive use of "exemption from notice and appeal" provisions in various elements of the Melbourne Planning Scheme that apply in the Central City. Many aspects of the planning scheme controls affecting this land are exempt both from the giving of notice, and from the third party appeal rights. During the course of the hearing we advised the parties to the application, that it was our decision that the ambit of discretion available to the Tribunal in the context of this application for review was limited to,

* The permit required for demolition in the Capital City zone (clause 37.04), and

* The permit required for buildings, works and demolition in the Heritage Overlay (clause 43.01).

3. It was agreed that notwithstanding the fact that permission was required on other basis in the planning scheme, these matters were all affected by exemption provisions, and the Tribunal's discretion was not enlivened in these matters as a result of there being a right to review in respect of some other unrelated aspects of the planning scheme controls. In making this decision we followed the decisions of Deputy President Bruce in application for review No. 1999/71076, Primavera Venture Pty Ltd v Melbourne City Council, and in application for review No. 1999/88643, The Oakford Group v Melbourne City Council.

4. Under the schedule to the heritage overlay the subject land falls within HO500, the Bourke Hill Precinct. In addition the land is individually identified in the schedule as HO527, although there is some argument about whether or not this is in fact an error, the Tribunal must take the scheme as we find it, and in any event the heritage issues in this application for review relate more to the heritage significance of the broader Bourke Hill Precinct as a whole, rather than the heritage significance of this individual site and the existing building on the site which is to be retained.

5. The statement of significance for the Bourke Hill Precinct which appears in clause 22.04 of the planning scheme, is set out below:

This precinct derives much importance from its association with Parliament House, which was built progressively from 1856. This 19th century complex dominates the Bourke Street vista from as far away as William Street, and is emphasised by the sympathetic scale of the buildings on either side of the Bourke Street Hill. The precinct also includes such stylish and prominent buildings facing Spring Street as the Princess Theatre (1886) and the Hotel Windsor (1883). These contribute to the high level of amenity of Spring Street and its gardens. The buildings on either side of Bourke Street reflect the variety of social activities that have taken place in this area since the mid-19th century. The scale of the City's buildings prior to the boom era of the 1880s is seen in the simple design and low scale of the two-storey Crossley's Building (1884-1853).

The area also comprises part of the entertainment precinct of the central city, and buildings such as the Salvation Army Temple (1890) reflect the interest of social reformers in the nearby `back slums' epitomised by the nearby former Gordon House (1883-1884). A philanthropic venture built by a syndicate headed by the actor-manager and politician George Coppin, it was named after the martyr of Khartoum and was an ambitious venture intended to provide family accommodation for the respectable poor. However, the venture was not successful in achieving its purpose and Gordon House later became a shelter for homeless men and now a hotel. It survives as a unique social document in the narrow confines of Little Bourke Street, and is complemented by the low-scale of surrounding red brick buildings.

The juxtaposition of the Parliament, the former deprived areas of Little Bourke Street and the style of Bourke Street gives the precinct an unrivalled historic texture and overall the theatres, hotels, cafes and quality bookshops contribute to the relaxed and elegant character of the eastern end of the city.

s The visual dominance of the parliamentary buildings on the Bourke Hill skyline, and the vista along Bourke Street to Parliament House.

6. Among other things this proposal is affected by Schedule 2 to the Design and Development Overlay. In actuality this is one of those matters which is not before us because it is also affected by an exemption from notice and appeal. However, it is interesting to note that this overlay control which primarily deals with height controls within the Capital City Zone sets out the following outcome to be achieved by the height control applicable to the subject land:

"Low rise, high density and pedestrian oriented built form of the China Town, Bourke Hill and McKillop/Hardware/Guildford Lane precincts is maintained."

7. The preferred maximum building height in this case is 15 metres, and it is interesting to note how closely this relates to the heritage objectives set out in the local policy statement of significance set out above.

8. Mr Lovell in his evidence correctly observed that in this case the judgement to be made must be based on one's perceptions and that the judgement is essentially qualitative rather than quantitative in character. It is a judgement to be informed by an understanding of the proposal, and an inspection of the locality in the context of the particular heritage values to be protected.

9. It was argued on behalf of the permit applicants that in the context of the Central City heritage buildings are often seen cheek by jowl with more modern development which is commonly at a quite different scale. Moreover, even in this particular low rise precinct, the existing low rise Victorian and Edwardian buildings are seen against a backdrop of much taller structures. In the context of this particular application it is our view that the particular heritage value to be protected is the low rise character of the Bourke Street streetscape.

10. Prior to our inspection we were of the tentative view that it was possible that the building was an acceptable element in this Central City environment. We formed this opinion having regard to the nature of surrounding development and the fact that the proposed building is set back some 20 metres behind the front facade of the Victorian and Edwardian buildings facing onto Bourke Street,.

11. On our inspection we approached the site and the heritage area from the south via Windsor Place. From the perspective of Windsor Place, and from Bourke Street either opposite the site or up from the site towards Spring Street, it appeared possible to sustain a taller building in the proposed location, although even from this perspective our tentative view was that the proposed building would have to be reduced in height by at least 2 levels.

12. However, the impression which develops of the precinct, and the effect of the proposed building on the precinct, as one moves further south in Bourke Street changes quite dramatically. The scale of development in Meyers Place at its northern end, within the heritage overlay, is quite different to that which is evident in Windsor Place. The effect of this lower scale is that Meyers Place provides a view into the heritage area giving it a three dimensional character which is quite unlike that found in other circumstances where the tall Victorian commercial facades built to the building line, by and large conceal what is happening behind the facades from the public realm. It was clear to us that from this, relatively extensive view corridor the proposed building would have a quite dramatic effect on the character of the "low scale Victorian buildings" which are such an important element of this heritage overlay area.

13. The submissions of Mr Trethowan and Mr Ritter argued that the proposed building was an inappropriate building in the context of the heritage overlay, and their arguments were supported by and reflected in the submissions of many of the other parties opposed to the proposal. The following extract from Mr Trethowan's and Mr Ritter's submission sets out their reasons for opposing this proposal:

"Highlighting the planning controls in this area is the stated preferred height limit of 15m for any new structure. This limits is specific and clearly understandable from an urban design perspective as it maintains the low rise character of the streetscapes (on both sides of Bourke Street) leading to Parliament House, a building of international significance.

The Trust is gratified that the proposed structure on the site retains the building fronting onto Bourke Street. We do believe, however, that there is no justification in this case for the stipulated height limit pertaining to this area to be exceeded. In other words the built envelope of the proposed apartment building should not exceed 15m in height (excluding an allowance for lift motor rooms, overrun, plant and equipment). We point out that a building of this size will still be significantly visible from the opposite side of Bourke Street, and this will be particularly so given the laneway and two storey terrace of shops directly adjacent to the site on its western side. We point out that a building of 15 metres in height will fit within the fabric of buildings as they group towards Bourke Street from Little Collins Street. The adjacent apartments in Windsor Place are six storeys or approximately 20 metres in height. If the proposed structure is designed in an attractive and compatible manner to the Bourke Street buildings, it will conceal the bare side wall of Window Place buildings (refer to diagram attached).

We also point out that if, for instance, the proposed building was to be sited on a neighbouring site directly adjacent to the nearby multi storey car park there would possibly be criteria available for the preferred height limit to be exceeded so as to fully conceal the elevation of the unsightly carpark building. This demonstrates, we believe, the criteria which would allow a relaxation of the planning controls. In this particular case however there is no such opportunity available and no other justifiable reason to exceed the height limit.

We made reference earlier to the need for new buildings in a precinct of this nature to be designed in an attractive and compatible manner to the existing buildings fabric. We acknowledge that this could generate arguments of subjective nature, however we point out that Victorian and early twentieth century buildings are designed in a particular way with fine details and an emphasis on a closed rectangular form. As an integral part of the Bourke Street precinct and with its visual prominence the proposed building should reflect these principles in an innovative and contemporary way. (We cite the example of the buildings that comprise No. 1 Collins Street complex as an example). The proposed building does not in our view reflect or reinterpret these design principles, rather it provides a strident design, with a series of vertical and horizontal forms boldly intersecting with each other into a dramatic and perhaps slightly overworked composition. Such an approach is not in this particular case appropriate."

14. We accept these submissions. It is our view that the proposed building will unacceptably intrude upon the low scale Victorian buildings fronting onto Bourke Street which in this particular locality is the important cultural element to be protected by the heritage overlay. We also consider that this adverse consequence is so significant that it is not outweighed by other planning considerations which favour the approval of this building.