REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

PLANNING SCHEME - interpretation or consideration of VPP provision

APPLICATION - significant, interesting or unusual use or development; application of policy, provision or principle; or circumstances

Consideration of what constitutes acceptable outcomes within the terms of clause 65 - application of principles in Rozen v Macedon Ranges SC [2010] VSC 583 - balancing competing policy objectives when demolition of heritage building is proposed

This case involves an application of the principles of integrated decision making, which require that planning decisions should balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.

The proposal to establish the Peter Doherty Institute for Infection and Immunity on the corner of Elizabeth and Grattan Streets, Melbourne will require demolition of the heritage building on the site. The former Ampol House is a C graded building of local heritage significance.

The Tribunal decided that a permit for demolition and for the use and development of a research and development centre and education centre should be granted. Establishment of the Peter Doherty Institute in this specialised biomedical precinct is strongly supported by state and local policy. This, together with its public health benefits and the contribution it will make to Melbourne's economic development will outweigh the loss to Melbourne's heritage of the former Ampol House. The grant of this permit will result in a significant net community benefit to present and future generations not just locally but at a national and international scale.

Integrated decision making - Clause 10.04 - net community benefit - Clause 65 - acceptable outcomes - balancing competing policy objectives - demolition of heritage buildings.

The University of Melbourne v Minister for Planning (includes Summary) (Red Dot) [2011] VCAT 469

1. Pursuant to section 127 and clause 64 of schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans the following plans filed with the Tribunal:

1. The decision of the Responsible Authority is set aside.
2. In permit application 2010/023734 a permit is granted and directed to be issued for the land at 786-792 Elizabeth Street and 257 Grattan Street

Carlton Vic 3053 in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows: * Demolition of the existing building at 786-792 Elizabeth Street, construction of a multi-storey building, use as a research and development centre and education centre, to vary the Design and Development Overlay (schedule 44) provision, to waive the associated car parking requirements, and to alter access to a road in a Road Zone Category 1

Mr Ian Pitt SC, of Best Hooper. He called the following witnesses:

• Professor James McCluskey, Pro-Vice Chancellor (Research Partnerships) and Deputy Vic Chancellor Research, the University of Melbourne
• Professor Emeritus Richard Larkins, Monash University
• Laureate Professor Peter Charles Doherty, Department of Microbiology and Immunology, the University of Melbourne
• Peter Lovell, Heritage Architect, Lovell Chen
• Robert McGauran, Architect, McGauran Gianinni Soon Pty Ltd
• Tim Biles, town planner, Message Consultants Australia Pty Ltd

The following written witness statements were tendered:

• Steven Hunt, consultant traffic engineer, Cardno Grogan Richards Pty Ltd
• Samantha Slicer, person responsible for preparation of photomontages, Flood Slicer Pty Ltd
• Professor Steve Wesselingh, Dean, Faculty of Medicine, Nursing and Health Sciences, Monash University

Alexander Stephen Matovic, architect, of Grimshaw Billard Leece, described the plans, design principles and proposed materials.

Mr Adrian Salmon, town planner (Day 1 only) and Ms Tania Crisafi, town planner Department of Planning and Community Development

Mr Tom Pikusa of counsel, by direct brief. He called the following witness:

• Ms Meredith Gould, heritage architect, Meredith Gould Architects Pty Ltd

Demolish existing buildings on the site, including Elizabeth Tower Hotel (formerly Ampol House) and construct a part 11 part 12 storey building for the purpose of a research and development centre and education centre for the Peter Doherty Institute.

Section 79 Planning and Environment Act 1987

Heritage Overlay - schedule 55 (786 - 792 Elizabeth Street (HO)

Design and Development Overlay - schedule 44 (Elizabeth Street and South Carlton DDO44)

Elizabeth Street is also affected by Heritage Overlay - schedule 977.

Clause 32.04 - 1 (MUZ) use for research and development centre and education centre

Clause 32.04-7 (MUZ) construct a building or construct or carry out works

Clause 43.01-1 (HO) demolish a building; construct a building or construct or carry out works

Clause 43.02-2 (DDO44) construct a building, or construct or carry out works

Clause 52.29-1 alter access to a road in a Road Zone Category 1

Clause 10.04 (Integrated Decision Making); Clause 15 (Built Environment and Heritage); Clause 51.01-1 (Urban Design); Clause 51.01-2 (Urban Design Principles); Clause 15.02 (Sustainable Development); Clause 15.03 (Heritage); Clause 17.02-4 (Innovation and Research); Transport; Clause 18.01 (Integrated Transport); Clause 18.02-2 (Cycling); Clause 19.02-2 (Education Facilities)

Municipal Strategic Statement (MSS) and Local Planning Policy Framework (LPPF)

Clauses 21.03, 21.03-1, 21.03-2, 21.04, 21.05, 21.08-7; Clause 22.02 (Sunlight to Public Places); Clause 22.05 (Heritage Places outside the Capital City Zone); Clause 22.17 (Urban Design outside the Capital City Zone); Clause 22.19 (Environmentally Sustainable Office Buildings)

• 786 - 792 Elizabeth Street on the south-east corner of Elizabeth and Grattan Streets, Melbourne, which is occupied by an eight storey building, Elizabeth Tower Hotel (former Ampol House).
• 257 Grattan Street, Melbourne on the south-west corner of Grattan and Berkeley Streets, Melbourne, which is occupied by a two storey building used as a car park.

When combined, the site has a frontage of 33.78 metres to Elizabeth Street and a frontage of 72.21 metres to Grattan Street and a site area of 2,273m2.

The University of Melbourne main campus is to the north of the site with the Royal Melbourne Hospital located diagonally opposite on the north-west corner of Grattan and Elizabeth Streets. The proposed Victorian Comprehensive Cancer Centre will be located to the west on the former Dental Hospital Site.

The Tribunal has inspected the subject site and surrounding area.

1. This case involves an application of the principles of integrated decision making, which require that planning decisions should balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.
2. The proposal to establish the Peter Doherty Institute for Infection and Immunity on the corner of Elizabeth and Grattan Streets, Melbourne will require demolition of the heritage building on the site. The former Ampol House is a C graded building of local heritage significance.
3. We have decided that a permit for demolition and for the use and development of a research and development centre and education centre should be granted. Establishment of the Peter Doherty Institute in this specialised biomedical precinct is strongly supported by state and local policy. This, together with its public health benefits and the contribution it will make to Melbourne's economic development will, in our view, outweigh the loss to Melbourne's heritage of the former Ampol House. The grant of this permit will result in a significant net community benefit to present and future generations not just locally but at a national and international scale.

1. The University of Melbourne proposes to establish the Peter Doherty Institute for Infection and Immunity on the subject land as a world class biomedical facility specialising in human infectious diseases and immunity. The Peter Doherty Institute is a partnership between the Victorian Government, Melbourne Health and the University of Melbourne. It will bring together other major organisational groups, which are recognised leaders in their fields and which have complimentary expertise in the fight against infectious disease. It will physically unite units comprising approximately 500-600 staff that are currently dispersed on separate sites around Parkville. These units include:
   • University of Melbourne - Department of Microbiology and Immunology
   • Microbiological Diagnostic Unit Public Health Laboratory
   • Victorian Infectious Disease Service
   • Victorian Nosocomial Infection Surveillance System
   • Victorian Infectious Disease Reference Laboratories
   • World Health Organisation Centre for Influenza Reference and Research
   • Victorian Life Sciences Computational Initiative
   • Nossal Institute for Global Health
2. The Commonwealth Government has provided funding of $90 million to build the Peter Doherty Institute on the subject land. The funding agreement provides that facilities will include peak computing and bioinformatics capability; a high through-put DNA sequencing facility; containment laboratories; and teaching and networking spaces.
3. The benefits that will flow from the establishment of the Peter Doherty Institute in this location are undisputed. However, to build the purpose designed facility, which the funding agreement with the Commonwealth envisages, the existing heritage building on site must be demolished.
4. The former Ampol House is an eight storey office building in reinforced concrete. Architecturally, the building is notable principally for its dramatic glazed circular corner tower, housing Melbourne's tallest concrete spiral stair. It was completed in 1957 to a design by Bernard Evans and Associates and originally housed the headquarters of Ampol. In 1980, the building converted to a hotel and operated as the Elizabeth Tower Hotel until purchased by The University of Melbourne in 2009 as part of the site for the Peter Doherty Institute.
5. There is strong policy support for the retention of heritage buildings in the planning scheme. Equally, there is strong policy support for the establishment of research and education facilities, such as the Peter Doherty Institute, within this precinct. The dilemma in this particular case is that achievement of each of these planning objectives is mutually exclusive. The Peter Doherty Institute requires a purpose built building. It is not possible to adapt the former Ampol House to its needs. The stark choice is either to retain the former Ampol House building and lose the Peter Doherty Institute, or to lose this heritage building through demolition.
6. In this situation, the Tribunal's responsibility is to take account of and give effect to the policies applicable to issues before it to ensure integrated decision making.[1] Clause 10.04 of the planning scheme relates to integrated decision making. It provides as follows:

Society has various needs and expectations such as land for settlement, protection of the environment, economic well-being, various social needs, proper management of resources and infrastructure. Planning aims to meet these by addressing aspects of economic, environmental and social well-being affected by land use and development.

Planning authorities and responsible authorities should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.

1. In balancing the conflicting objectives in this case in order to determine what outcome will favour net community benefit and sustainable development, the Tribunal must consider policies and objectives relevant to the following key issues:
   • Support for research and education facilities such as the Peter Doherty Institute;
   • Public health;
   • Economic development;
   • The heritage significance of the former Ampol House and its demolition;
   • The architectural quality of the replacement building, including whether it should be permitted to exceed the maximum building height in DDO44.
2. The responsible authority in this case is the Minister for Planning. This proceeding is an application for review against the failure of the responsible authority to make a decision. The Tribunal was advised that the Minister has decided not to determine the matter since the application under section 79 was lodged with the Tribunal. At the hearing, the Minister outlined the strategic and policy framework and planning controls affecting the proposal but did not express a view about the merits of the proposal to the Tribunal.
3. Melbourne City Council is an objector in this proceeding. The council does not support the demolition of the former Ampol House, which it says has architectural and historical significance and is worthy of retention. It submits that the benefits of the proposal do not outweigh the detriment caused by the complete demolition of the building and therefore a permit should be refused. If demolition is approved, the council submits that the proposal does not make an appropriate architectural statement given its prominent corner location.

1. Before considering the key issues we have identified, we must address the submission by the council that there is nothing to tie the Commonwealth funding to this particular site and that the Peter Doherty Institute could just as well be located on other land owned by the University of Melbourne.[2] The council submits that if the Institute was relocated, it would enable the former Ampol House to be saved. We place no weight on this submission for several reasons.
2. The Tribunal's task is not to identify alternative sites or more appropriate sites. It must assess the particular permit application, which has been made for this particular site. We must decide if the proposal will produce acceptable outcomes in terms of the decision guidelines set out in clause 65 of the planning scheme. The test which the planning scheme requires to be applied is one of acceptable not ideal outcomes.[3]
3. In the context of considering this permit application, it is not necessary to engage in a forensic analysis of the Commonwealth Funding Agreement and associated documents. Even if we did, our findings would not affect that Agreement. The fate of this application does not turn on whether we think it would be possible for the Peter Doherty Institute to apply the Commonwealth funding to some alternative site. The only relevance that evidence about the Commonwealth funding has, in our view, is to lend weight to the significance attaching at a national level to the establishment of the Peter Doherty Institute. The Commonwealth Government is not going to part with $90 million for a project that is not important to the national interest. The funding is for the purpose of establishing the Peter Doherty Institute. Our task is to decide if this is an appropriate site. It is inherent in this task to determine whether the former Ampol House should be saved at the expense of the institute or vice versa.
4. Finally, we place on record that we have no doubts about the credibility of Professor McCluskey and his evidence regarding the terms and conditions upon which funding has been provided by the Commonwealth for this proposal. Whilst we do not consider it is necessary to analyse the Commonwealth Funding Agreement in any detail, we consider that the interpretation provided on behalf of the applicant in response to the council's submissions on the subject[4] are to be preferred and we accept that the Commonwealth Funding is tied to the subject land.

POLICY SUPPORT FOR RESEARCH AND EDUCATION FACILITIES

1. The subject land is within the Parkville Biomedical Precinct, which is a specialised activity centre based around existing education and medical research institutions. The physical proximity of these facilities is critical to create synergies that assist biomedical breakthroughs.
2. Melbourne is recognised as a centre for knowledge and innovation. The Melbourne Planning Scheme recognises that the continued prosperity of Victoria depends on providing for a changing economy. A number of emerging and traditional sectors are critical to the State's continued economic prosperity. These sectors include education, research and development, information and communications technology, advanced manufacturing, biotechnology, and environmental management, which already have a strong presence in the City of Melbourne.[5]
3. The subject land is within an area identified for medical, education, research and development opportunity.[6] It is also an area where moderate change to the built form character is envisaged.[7]
4. The planning scheme recognises that one of Victoria's greatest strengths in biotechnology capability is the co-location of key education, hospitals, and industry in a number of precincts of research excellence. These precincts, including Parkville and the Alfred (and others) provide for a focal point for sharing resources and the exchange of ideas.[8]
5. These statements in the planning scheme reflect similar statements in the Biotechnology Strategic Development Plan for Victoria, Department of State and Regional Development, 2001.
6. Location of the Peter Doherty Institute on the subject land is also in accordance with the Victorian Government's Parkville Precinct Strategic Plan. Implementation of the strategic plan has seen the establishment of the Bio21 Institute located on the north-eastern corner of Flemington Road and Park Drive, the University of Melbourne's neuroscience building on Royal Parade, which is nearing completion, and the proposed Victorian Comprehensive Cancer Centre development on the former Dental Hospital site on Grattan Street. This specialised land use precinct is focused around the University of Melbourne and the Royal Melbourne, Royal Womens and Royal Childrens hospitals, the Walter and Eliza Hall Institute of Medical Research and the Ludwig Institute for Cancer Research.
7. An objective of the SPPF is to create opportunities for innovation and the knowledge economy within existing and emerging industries, research and education.[9] We find that the location of the Peter Doherty Institute on the subject site will meet these policy objectives and others, which we have outlined. We therefore find that there is strong policy support, both within the planning scheme and more broadly by the Victorian Government, for the establishment of the Peter Doherty Institute on the subject land.

1. The Peter Doherty Institute will be the only entity within the Parkville Precinct with a specific focus on infection and immunity, and will be directly linked to community benefits through its public health, research and education agenda. The importance of the Peter Doherty Institute being located within the precinct lies in the increase in the quality and importance of its research that would flow from this context.[10]
2. Evidence was given by a number of eminent scientists[11] about the public health benefits of the Peter Doherty Institute. Each of them emphasised that the threat of emerging and re-emerging infectious diseases poses a major challenge to human progress and survival. They all considered that the magnitude of the problem being tackled by the Peter Doherty Institute is of global significance. This evidence was not challenged by the council.
3. We accept the evidence that the Peter Doherty Institute will have a significant impact on the national capacity and responsiveness to known and emerging infectious diseases through its teaching, research and translation of programs. We accept that synergies will come from the networks and collaborations that form when people are co-located in one facility and in immediate proximity to neighbouring biomedical research institutes, hospitals and the University of Melbourne. We accept that the site's adjacency to the Victorian Comprehensive Cancer Centre and Royal Melbourne Hospital will be catalytic for engagement of clinicians in these hospitals and in driving collaboration between institutes and hospitals, integral to the precinct concept.[12]
4. As a result, we find that the public health benefits in infection and immunity research for Victoria, Australia and the Asia/Pacific/Indian Ocean region by providing a state of the art approach to infectious diseases that threaten these communities will be immeasurable.

1. Clause 17 of the SPPF deals with economic development. It provides that:

Planning is to provide for a strong and innovative economy, where all sectors of the economy are critical to economic prosperity.

Planning is to contribute to the economic well-being of communities and the State as a whole by supporting and fostering economic growth and development by providing land, facilitating decisions, and resolving land use conflicts, so that each district may build on its strengths and achieve its economic potential.

1. The policies relating to innovation and research are one aspect of economic development.
2. Professor McCluskey is the academic champion for the development of the Peter Doherty Institute for Infection and Immunity involving the University of Melbourne and Melbourne Health. In his evidence he described what the Peter Doherty Institute has to offer and to gain through international collaboration in research and teaching. In addressing the strategic context, he said:

Australia's future economy will be driven by knowledge and innovation, with the biomedical sector one of the fastest growing components. At the same time, our region faces emerging infectious threats that are unpredictable and will need interdisciplinary expertise to manage. Strong international links and the capacity to draw together diverse skills in these areas will be crucial strategic resources in coming decades. Through its unique blend of research, teaching and expertise in infection and immunity, PDI can make a major contribution to the social and economic wellbeing of Australia and the region, protecting communities and building competitive advantages.

1. These comments are reinforced by the evidence of Mr Biles, who spoke about the role and effect of specialised land use precincts within a city. He referred to the fact that specialised land use precincts provide the economic structure to a city, underpin its creative output and fashion its locational geography. All cities compete with one another. The capacity for built form and architecture to effectively respond to the evolving requirements of uses of these specialised precincts is fundamental to the ongoing vitality of the precinct and the city.
2. We accept the proposition that to thrive, economically and creatively, cities compete with one another. Benefits flow to successful cities from clusters of specialised activities and their capacity to capture and retain the intellectual capital developed by institutions within those clusters. We find that the Parkville Precinct is an example of the type of cluster or specialised land use precinct that is important to the economic and creative wellbeing of Melbourne. The precinct adds significantly to Melbourne's competitive advantage as a city. We consider that the establishment of the Peter Doherty Institute will reinforce the strength and competitive advantages of the Parkville Precinct, which in turn will support the policy objective to support and foster economic growth and development for Melbourne.

1. Before we turn to the question of the effect of the building's demolition, we must respond to the question of whether it is both feasible and reasonable to retain the building's façades (i.e. "the front part of 'C' ... graded buildings"), having regard to the provisions of Clause 22.05 (see later).
2. The architects concluded that, because of the functional requirements of their design brief, in particular the much greater ceiling height requirements of the new building as compared to the former Ampol House, this is not a feasible option. The architect's advice to Melbourne City Council was that the incorporation of part of the existing building into the proposed development would seriously compromise the latter's ability to achieve standing as a world-class institute. We accept this evidence.
3. Furthermore, we accept Mr. Lovell's conclusion that the incorporation of all or part of the façade elements of the former Ampol House into the new development "would be poor, both through the severe truncation of the building and the impact of the new build(ing)"[13].
4. Based on this evidence we find that it is not feasible or reasonable to re use the existing building for the purposes of the Peter Doherty Institute or even to retain the front façade.

What effect would the demolition of the existing building have in terms of heritage values?

1. All parties accepted that the former Ampol House is of local heritage significance but disputed the effect of its demolition on the local heritage values of the City. Ms. Gould contended that this effect would be "a significant cultural heritage loss to the City of Melbourne". However, we prefer Mr. Lovell's opinion that "the loss of (this building) ... will adversely impact, but in a limited way and localised way", the heritage fabric of the City. Our reasons for preferring this view are as follows.
2. The former Ampol House is usefully described in the National Trust's statement of significance[14] as follows:

The former Ampol Building, designed by Bernard Evans & Associates, and completed in 1958 is architecturally and historically important at the Regional level.

Architecturally, the building is notable principally for its dramatic glazed circular corner tower, housing Melbourne's tallest concrete spiral stair. The tower is accentuated by the flanking blue tiled wing walls topped by flagpoles, and neon sign.

Historically, it is of interest as a building that is designed in a style that appears to belong to the early modernist period of twenty years previously, and is by far the last major building designed in this tradition in Victoria. It is also of interest as the headquarters of one of the major petrol companies in Victoria, which were all undergoing great expansion at that time, and for originally incorporating a petrol station at the ground level.

1. The building's only heritage protection is provided by the site-specific Heritage Overlay, HO55[15]. Alterations to or demolition of buildings within the overlay are subject to the grant of a planning permit[16]. The schedule to HO55 does not include controls over internal alterations, so that, in fact, the remnants of the ground-floor service station and the concrete cantilever stair itself, within its curtain-wall glazed drum, are not protected by the overlay and can be removed or modified without a permit.
2. Clause 22.05 sets out policies for the exercise of Council's discretion in allowing alterations to or demolition of buildings within the Heritage Overlay. While the general import of the policy is to maintain the heritage values of such places, it acknowledges that demolition of all or parts of buildings will be acceptable in certain circumstances. It states (our emphasis):

Demolishing or removing original parts of buildings, as well as complete buildings, will not normally be permitted in the case of 'A' and 'B', the front part of 'C' and many 'D' graded buildings.

1. The relevant decision guidelines of Clause 22.05 in relation to any proposed demolition of a heritage building (in addition to those of Clause 43.01) include[17]

Before deciding on an application for demolition of a graded building the responsible authority will consider as appropriate:

• Whether the demolition ... is justified for the development of land ...

A demolition permit should not be granted until the proposed replacement building or works have been approved.

1. Both heritage experts agreed that the building's significant feature is its corner spiral staircase, surmounted in its heyday by the skysign AMPOL and two flagpoles. They also agreed that the building had a relatively high level of external integrity; the principal changes from the original are the removal of the ground-floor petrol and service station (replaced with the subsequent hotel foyer and related areas), replacement of the AMPOL sky-sign above the spiral stair's tower with the current hotel sign and painting of some of the façade's brickwork.
2. Both Mr. Lovell and Ms. Gould agreed that the former Ampol House is of local heritage value, is appropriately placed in the Heritage Overlay and is appropriately graded 'C' in Council's Heritage Places Inventory July 2008, an incorporated document in the Melbourne Planning Scheme. C-graded buildings are defined in Clause 22.05 as buildings that:

... Demonstrate the historical or social development of the local area and / or make an important aesthetic or scientific contribution. These buildings comprise a variety of styles and building types. Architecturally they are substantially intact, but where altered, it is reversible. In some instances, buildings of high individual historic, scientific or social significance may have a greater degree of alteration.

1. As a result of recent inquiries she had made about the history of Ampol Ltd, about Mr. Walkley, its managing director at the time of its construction and about the former Ampol House itself, Ms. Gould concluded that further assessment might justify a B-grading for the building. However, we consider such an outcome to be speculative and it does not reflect the level of significance presently embodied in the planning scheme.
2. The only significant difference between the views of Ms. Gould and Mr. Lovell was in relation to the effect of the building's demolition on the heritage fabric of the City.
3. Ms. Gould concluded that the building was significant in large part for its unique spiral stair within its curtain-walled drum and the landmark quality of this feature. She supported this view by demonstrating the uniqueness of this feature in terms of its 9-storey height and the lack of any local equivalents. From her analysis, Ms. Gould concluded that there are no other buildings in the City of Melbourne that are protected by the Heritage Overlay and of equivalent style to the former Ampol House. Based on this, she concluded that the demolition of the former Ampol House would lead to the loss of a unique building to the City.
4. Mr. Lovell, in contrast, took what he described as a less-reductive approach. He categorised the building more broadly and, in our view, more usefully, as:

(the) late embodiment of a mode of round-cornered modernism dramatised in a circular stair or ramp circulation with bold horizontals in its window arrangement[18].

1. He further categorised the building, allowing for its later modifications, as:

... representative of the modernist inter-war office building tradition of dramatised corner sites. It also expresses the transition from early to mid-twentieth-century office environments. However, it was completed too late to be considered innovative in practically all of its architectural and engineering aspects.

The complete demolition and replacement of the building, as is proposed, will result in the loss of one building in this larger group. When considered in a citywide heritage perspective, the loss of such a contributory building, standing in an isolated context, will adversely impact, but in a limited and localised way.

1. We endorse Mr. Lovell's analysis. Most buildings can be judged unique by some criterion and certainly the former Ampol House's nine-storey cantilever stair with enclosing curtain wall glazing is unique to the City of Melbourne and, we assume, the State. However, this building is only of local heritage significance. It is not an innovative building because it features architectural devices that were already outdated when designed. The corner stair is unique but only in scale.[19] We therefore endorse Mr. Lovell's view that this building's contribution to the heritage values of the City is as one of a group of buildings categorised as round-cornered modernist and that its loss will be of local and limited heritage significance.

Is the proposed building an acceptable replacement in terms of its architectural quality?

1. The council submitted that the new building, which is to replace the heritage building should but fails to "make an equivalent architectural statement" and fails to provide a corner statement equivalent to that of the former Ampol House. We disagree and find that this proposed building will make an architectural statement of appropriately high calibre and adequate sufficiency. We reach this conclusion based on the following analysis.
2. The council argued that the proposal failed, architecturally, to achieve an equivalent architectural statement to the former Ampol House on various grounds: it would not provide an appropriate landmark; it was not designed to be viewed in the round; it lacked an appropriate corner treatment (i.e. to emulate that of the former Ampol House); and its modest corner emphasis would be nullified by the location of the lift shafts part-way along the Grattan Street façade.
3. Mr. McGauran gave evidence for the applicant that the building will achieve a high calibre of architectural quality by way of subtlety in the use of quality materials and detailing, and through variations in the visual texture and patterning of different elevations.
4. It has become something of an architectural dictum that one should set aside the principle that a building's architectural expression should grow out of a functional representation of both the activities it contains and the associated choice of structure and finishes. This functionalist ('form follows function') aesthetic arose in the early 20th century in reaction to the prevailing use, and debasement, of historicist styles with their avoidance of the aesthetics of industrial production. More recently, this functional approach has itself become debased and, applied en masse, has lead to a widespread perception of, and desire to reject, a now boring aesthetic. And so we now have an emerging new aesthetic which, by manipulating the building's form, structure or finishes, seeks to treat buildings in part as urban sculpture while still maintaining their functionality.[20]
5. In this context, we agree with Mr. Lovell (together with the National Trust's citation) that the former Ampol House is, apart from the prominent and decorative feature of the corner stair, an interesting but undistinguished example of a commercial style of architecture as more generally practiced some 20 years or more before the building was constructed.
6. Council's submissions seemed to imply that any replacement building should use this more current sculptural style of architecture to achieve a landmark emphasis, including setbacks to upper floors to create a more tower-like form above a podium.
7. However, this sculptural approach can be applied more readily to some types of buildings than others. In the present case, we have a building with highly complex internal functions and functional relationships, involving extensive amounts of plant. The architect has proposed a building that maximises the volume defined by the whole site up to the building's highest level. If this is indeed the required volume, some sculptural treatment could only be adopted if floor areas were reduced in area and height increased. We are not persuaded that this is necessary.
8. We do not accept the council's concern that revealing the panel of lifts part-way along the Grattan Street façade will distract a viewer from the building's landmark role, which we believe will be achieved quite adequately from its scale and corner location. We acknowledge the way the architect has chosen to characterise the Grattan Street façade in terms of a Mondrian-type patterning. We consider its asymmetry is much preferable to a symmetrical pattern.
9. We endorse the assessment by Mr Gauran that this building is one of high architectural calibre. The requirements of the design brief and the Commonwealth funding agreement have been incorporated into a refined, building, which relies on a subtle juxtaposition of line, texture, and detailing to balance its size. It is not an outlandish, sculptural building, but is nevertheless a building of distinction.
10. We also agree with the evidence of Mr McGauran and Mr Biles that the building's ground floor design and footpath interface (after further recommended modifications) with its associated activities will provide an appropriate social enlivening of adjoining footpaths.

1. Council objected to the grant of a permit because of the proposed building's excessive height and lack of upper-level setbacks. However, we agree with the applicant's urban design experts that the building will make an appropriate urban design contribution to its locality.
2. The council says that the building would be too high and would lack appropriate upper-level setbacks, each of these design features being contrary to the objectives of DDO44.
3. The objectives for buildings in DDO44 include promoting Elizabeth Street as a major boulevard, achieving consistency of higher form, maintaining a contrast with (i.e. by being lower than) buildings in the CBD, placing dominant landmark buildings around the Haymarket roundabout and developing a new built-form character.
4. The schedule to DDO44 states, in part, that buildings should have a maximum height (i.e. "preferred height", as this provision is discretionary) of 8 storeys. At 4 metres per floor for a non-residential building, this provides for 32 metres for such buildings, as compared to this proposal with a height of 48 metres or thereabouts. The schedule also sets out a number of "desired outcomes" that generally elaborate the overlay's various objectives.
5. Mr. Biles, in evidence on behalf of the applicant, pointed to the large number of existing, approved (or seriously entertained) buildings in this site's locality that are of generally equivalent height to this proposal. They include the Alan Gilbert Building to the immediate east ( 9 storeys); an approved medical/research building on the Ford site to the south (15 storeys); the Faculties of Business and Economics (13 storeys) and Law (12 storeys) nearby to the south; and the foreshadowed Victorian Cooperative Cancer Centre on the old Dental Hospital site opposite on Elizabeth Street (anticipated to be 15 storeys in part). Mr. Biles concluded that buildings of these heights will contrast effectively with the substantially higher buildings on the northern edge of the CBD; for example, the proposed CUB site redevelopment includes buildings to 50 storeys and there are other existing or approved buildings of between 20 and 50 storeys in various parts of the northern sections of the CBD.
6. Mr. McGauran concluded that the building's extra height above the DDO44 preferred height limit was justified by the height of other tall buildings in the locality and from the benefit it offered by emphasising the Elizabeth Street boulevard and the Haymarket roundabout.
7. We find it difficult to discern which views of the taller buildings in the southern portion of the University and South Carlton are most important. In fact, after our site inspection, we found it hard to establish where this grouping of buildings is best observed, other than from within the area itself or from its immediate surrounds. Long or middle distance views tend, at best, to be fragmented and limited by buildings in the viewer's foreground or by the substantial avenue plantations in Royal Parade and the various public gardens. We believe that the best views of the proposed buildings and other tall buildings nearby will be from Grattan Street and the area's bounding boulevards. However, even in this context and with these taller buildings looming over the viewer, the difference between their heights and the much higher buildings in the central area's northern edge will be very apparent. Certainly, during our inspection, the taller buildings of the central city were very visible from viewpoints within South Carlton and their greater height was very prominent.
8. From our site visit we also conclude that the existing building is not prominent when seen in the context of the other tall buildings around it. The only feature that justifies it having some landmark quality is the corner staircase. In terms of its size, the building is now somewhat of an understatement. To achieve a landmark statement with a new building, such building would have to be significantly higher than the former Ampol House.
9. In considering the most effective means of making a strong landmark statement at an important gateway, we conclude that a building using the podium/tower form would be potentially less dramatic than this proposed structure, which will rise sheer from the street[21]. Elizabeth Street and the Haymarket create an extensive vista within which such dramatic form is appropriate. Furthermore, almost all of the recently constructed tall buildings in South Carlton rise sheer from the street with no podium.
10. We therefore find this aspect of the proposal is acceptable.

1. Melbourne City Council submitted that in deciding whether to demolish a heritage building, the Tribunal should only look at policy objectives relevant to heritage.
2. We reject this proposition. Whilst in 1998 and 1999 some Tribunal decisions suggested that the whole of the policy matrix does not need to be taken into account when considering demolition of heritage assets, that has not been the case since Harding v Port Phillip CC[22] in 2002.
3. We endorse the proposition articulated in Harding that even where what is proposed is the demolition of a building which is the sole basis for a site specific Heritage Overlay, the decision must have regard to the full ambit of planning controls and planning policy applying to the site.
4. The matters the Tribunal must consider are set out in section 60 and section 84B of the Planning and Environment Act 1987. They include the relevant planning scheme and the objectives of planning in Victoria. Clause 65 of the planning scheme sets out decision guidelines that must be considered, as appropriate. They include:
   • The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
   • The purpose of the zone, overlay or other provision.
   • Any matter required to be considered in the zone, overlay or other provision.
5. Thus, whilst the Tribunal must consider the decision guidelines under the Heritage Overlay and other matters set out in the planning scheme relating to heritage, there is nothing within the Act or clause 65 that limits the consideration of matters when determining an application to demolish a building in a Heritage Overlay only to matters pertaining to heritage. Rather, the requirements of clause 10.04 regarding integrated decision making and the opening words of clause 65 direct the Tribunal to take into consideration the full gamut of policy objectives and planning considerations.
6. Clause 65 commences with the following statement:

Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.

1. The Supreme Court has recently considered the meaning of "acceptable outcomes" within the terms of clause 65 in Rozen v Macedon Ranges SC[23]. After referring to the provisions of what is now clause 10.04[24] and clause 65, Osborn J said:

[171] The test of acceptable outcomes stated in the clause is informed by the notions of net community benefit and sustainable development. An outcome may be acceptable despite some negative characteristics. An outcome may be acceptable because on balance it results in net community benefit despite achieving some only of potentially relevant planning objectives and impeding or running contrary to the achievement of others.

[172] The weight to be given to the various considerations which may be relevant on the one hand, and to particular facts bearing on those considerations on the other hand, is not fixed by the planning scheme but is essentially a matter for the decision maker.[25]

[173] Furthermore, the potential complexity of issues raised by a particular application renders the question of what would be the optimal form of development for use in a particular case fundamentally difficult of resolution and one on which different minds might reasonably differ.

[174] In Knox City Council v Tulcany Pty Ltd, I observed:

The planning scheme does not require an ideal outcome as a prerequisite to a permit. If it did, very few, if any, permits for development would ever be granted and there would be difficult differences of opinion as to whether the outcomes were in fact ideal. The Tribunal is entitled to grant a permit where it is satisfied that the permit will result in a reasonably acceptable outcome having regard to the matters relevant to its decision under the planning controls.[26]

[175] For these reasons I accept the appellants' submission that the test which the Planning Scheme requires to be applied is one of acceptable and not ideal outcomes.

[176] The question in the present case is whether the Tribunal's reasons read in context demonstrate that it has failed to apply the correct test. The underlying task of the Tribunal is after all to reach the 'correct or preferable' decision on the material before it.[27]

[177] In this sense the preferable outcome is not to be equated with the 'ideal' outcome.

1. As the Supreme Court observed, the test of acceptable outcomes is informed by the notions of net community benefit and sustainable development. An outcome may be acceptable despite some negative characteristics. In the present case, we have concluded that, on balance, development of the Peter Doherty Institute will result in a net community benefit despite the negative outcome resulting from the loss of the former Ampol House.
2. We have earlier referred to the strong policy support for establishment of the Peter Doherty Institute on the subject land as part of the Parkville Precinct, the public health benefits that will flow from establishment of the institute and the contribution it will make to the economic development of Melbourne and its competitive advantages. We consider these are all important and substantial community benefits.
3. We accept that retention of heritage assets is also a community benefit. The physical character of cities and the contribution which places of heritage significance make to that character is another contributing factor in the way in which cities compete with one another.
4. Yet cities must be regarded as palimpsets: they must be capable of growth and adaptation to meet new needs. Over times the buildings of one era will invariably require replacement or adaptation to meet these needs. It is important to conserve and enhance buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value.[28] However, when a conflict arises between this objective and other objectives, and a choice must be made between them, the Tribunal must balance those conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.
5. In the present case, we conclude that a greater community benefit for present and future generations will ensue from the establishment of the Peter Doherty Institute than from retention of the former Ampol House. The demolition of this building will be a loss and will be a negative consequence. However, it will not be anywhere near so great a loss as the community would suffer if the Peter Doherty Institute did not proceed. The former Ampol House is of local significance under the planning scheme. Its loss will be felt locally. But given the scale of risks posed by the emergence of infectious diseases that we have no capacity to combat, the loss of the Peter Doherty Institute for Infection and Immunity would be a loss for the community at a national and international scale.
6. For the reasons we have given earlier, we consider that the design of the proposed new building will meet the needs of the Institute and retain sufficient flexibility to be adaptable for future alternative uses. Its five star rating for a laboratory building represents a sustainable development. It is also a building of high architectural merit and its height is appropriate in its context.
7. We therefore conclude that a permit should be granted for demolition of the former Ampol House and for the use and development of the Peter Doherty Institute.

786-792 Elizabeth Street and 257 Grattan Street, Carlton Vic 3053

Demolition of the existing building at 786-792 Elizabeth Street, construction of a multi-storey building, use as a research and development centre and education centre, to vary the Design and Development Overlay (schedule 44) provision, to waive the associated car parking requirements, and to alter access to a road in a Road Zone Category 1

1. The use and development as shown on the endorsed plans as well as provided for in the reports required by the conditions of this permit must not be altered or modified without the prior written consent of the Responsible Authority.

1. Prior to the commencement of demolition of 786-792 Elizabeth Street, Melbourne, the preparation of full archival record must be undertaken by an appropriately qualified person. The report should consist of, but not limited to, a full photographic survey of the complete interior and exterior, and of significant features and views and vistas. It should also include the preparation of measured drawings, plans and elevations. These matters must be undertaken and submitted to the satisfaction of the Responsible Authority. Once approved, this document must be made publicly available at the State Library of Victoria or equivalent.

1. Prior to the commencement of the development, excluding demolition, bulk excavation and site preparation, piling, footings, ground beams and ground slab, a schedule and sample board including a colour rendered and notated plan/ elevation that illustrates the location and details of all external materials and finishes must be submitted to and be to the satisfaction of the Responsible Authority. All finishes and surfaces of all external buildings and works, including materials and colours must be in conformity with the approved schedule to the satisfaction of the Responsible Authority.

2. The glazing material on all external walls must be of a type that does not reflect more than 20% of visible light when measured at an angle of 90 degrees to the glass surface unless approved otherwise to the satisfaction of the Responsible Authority.

3. Prior to the commencement of development, excluding demolition, bulk excavation, construction or carrying out of works on the land, the relevant landowner(s) must enter into a legally binding agreement with Council and the Responsible Authority under section 173 of the Planning and Environment Act 1987 regarding projections beyond the Title boundary. The agreement should be to the satisfaction of the Responsible Authority and Council. The agreement must:

1. be at no cost to Council or the Responsible Authority; 2. be registered on the certificate(s) of title to the lands being developed;

1. address maintenance and repair issues for projections above any adjoining road; and

1. refute potential adverse possession claims regarding the above.

1. Public realm and landscaping works as shown on the relevant endorsed plans must be completed within 3 months of the completion of the building works to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

1. Prior to the commencement of demolition, a Demolition Management Plan (DMP) must be submitted to and be approved by the responsible authority in consultation with the City of Melbourne. The objective of the DMP is to minimize the impact of works associated with the demolition on neighbouring properties and activities conducted in the area generally and implementing the precautions to protect the stability of those portions of the buildings to be retained. The DMP must address demolition, bulk excavation, management of the construction sites and land disturbance, hours of operation, noise, dust, traffic management, soiling of roadways, discharge of polluted waters, disposal of waste material/contaminated soil/asbestos and pollution of ground water. If required, the DMP may be submitted and approved in stages.

1. Prior to the commencement of the development (or any stages) hereby permitted, excluding demolition, a detailed Construction Management Plan (CMP) must be prepared to the satisfaction of the responsible authority in consultation with the City of Melbourne, and approved by the responsible authority. The CMP must describe how the occupier of the subject land will manage the environmental and amenity impacts associated with the construction of the development. The CMP must address the following:
   • (a) staging of construction;
   • (b) management of public access and linkages around the site during construction;
   • (c) site access and traffic management;
   • (d) any works within the Berkeley, Grattan and/or Elizabeth Street road reserve;
   • (e) sediment control and site drainage;
   • (f) hours of construction;
   • (g) control of noise, dust and soiling of roadways;
   • (h) discharge of polluted waters;
   • (i) collection and disposal of building and construction waste.

2. All development must be carried out in accordance with the approved Construction Management Plan to the satisfaction of the responsible authority.

1. A Design Statement outlining the Environmentally Sustainable Design techniques integrated into the building must be submitted to and be to the satisfaction of the Responsible Authority.

2. The completed building must achieve a minimum of a 5 star rating under the modified Green Star Education building toolkit of the Green Building Council of Australia to the satisfaction of the Responsible Authority.

1. All building plant and equipment on the roof are to be screened or otherwise treated to the satisfaction of the Responsible Authority. The construction of any additional plant machinery and equipment on the roof, including but not limited to all air-conditioning equipment, ducts, all exhausts including communications equipment, must be to the satisfaction of the Responsible Authority.

2. Suitable design measures must be undertaken regarding the location and design of plant to ensure that it is positioned in order to minimise the impact of noise to the occupiers of adjoining properties.

3. Any external lighting must be provided with baffles to the satisfaction of the Responsible Authority so that no direct light shall be emitted outside the site.

1. Following demolition and bulk excavation, but prior to the commencement of any construction of works, a wind assessment of the development must be undertaken to the satisfaction of the Responsible Authority. Any modifications required to the development, in order to ensure acceptable wind conditions to the surrounding streets and public areas must be submitted to and be approved by the Responsible Authority.

1. Prior to the commencement of development (excluding demolition and site preparation works) structural engineering plans for the building generally in accordance with those embedded at Section 7.9.2 of the Planning and Architectural Design Report are to be provided to the satisfaction of the Responsible Authority and the Director of Public Transport. The plans are deemed to be satisfactory unless either the Responsible Authority or the Director of Public Transport advises the permit holder to the contrary in writing within 28 days of the date on which the plans are submitted to the Responsible Authority.

2. The building must be constructed in accordance with the endorsed plans to the satisfaction of the Responsible Authority.

3. The Development as shown on the endorsed plans must not be altered except with the written consent of the Responsible Authority.

4. As built drawings of the building must be provided to the Director of Public Transport prior to the provision of the Certificate of Occupancy, or at another time agreed in writing.

1. To the satisfaction of the Responsible Authority, the proposed crossover shall be constructed to a width of 3.5 metres at the property line, flared 60 degrees, with 3.0 metre radial turnouts at the kerb and there shall be a minimum of 1.0 metre clearance from any fixed object (poles, trees, pits etc).

2. No soil nails or other projections should extend to Elizabeth Street road reserve without the explicit approval of VicRoads.

3. Work site traffic management shall 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 from works on roads. If traffic congestion becomes excessive at anytime, the contractor must undertake measures to ease congestion.

4. A traffic management plan is to be submitted to VicRoads for its consideration at least 14 days prior to the commencement of works on the road reserve. No traffic management devices are to be erected on Elizabeth Street until VicRoads issues authorisation for the erection of those devices in accordance with the traffic management plan.

1. The owner of the subject site shall construct all necessary vehicle crossings and demolish all unnecessary vehicle crossings and reconstruct the footpaths adjacent to all boundaries of the site at no cost to the Responsible Authority or Council and in accordance with the plans and specifications first approved by the Group Manager Engineering Services, City of Melbourne, in consultation with VicRoads, to the satisfaction of the Responsible Authority.

2. The owner of the subject land shall not be permitted to alter existing footpath widths and street levels adjacent to the subject land for the purpose of constructing a new vehicle crossing or pedestrian entrance without first obtaining approval from the Group Manager Engineering Services, City of Melbourne.

3. 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 provision made to connect this system to Council's stormwater drainage system, at no cost to Council, in accordance with the plans and specifications first approved by the Group Manager Engineering Services, City of Melbourne.

1. Prior to the commencement of the development hereby approved other than demolition, a Waste Management Plan (WMP) must be prepared and submitted to the City of Melbourne's Engineering Services Branch for approval. The WMP must be prepared with reference to the City of Melbourne's Guidelines for Preparing a Waste Management Plan. The waste storage and collection arrangements as shown on the development plans must accord with the approved WMP, and the WMP must be followed at all times unless an amendment is approved by the City of Melbourne's Engineering Services Branch. The WMP must include information regarding the size of vehicles to be used for waste collection, the transport of waste through the site to the loading area and confirmation that the collection of waste will be undertaken from the loading area. The collection and storage of refuse must at all times be to the satisfaction of the City of Melbourne's Engineering Services Branch.

2. No garbage bin or surplus materials generated by the permitted use may be deposited or stored outside the site and bins must be returned to the garbage storage area as soon as practicable after garbage collection.

Traffic Management, Drop-off Spaces and Loading

1. Prior to the commencement of the development, excluding demolition, in accordance with the endorsed development plans, a traffic management and loading management plan must be submitted to and be to the satisfaction of the Responsible Authority. The plan must show:

1. Details of vehicular ingress and egress; 2. Timing of the proposed traffic works relative to the staging of the development;

All vehicle crossings, which are to be constructed or demolished, must be done at no cost to and be to the satisfaction of the Responsible Authority in consultation with City of Melbourne and VicRoads.

The internal design of all loading bays and any courier drop-off spaces must be generally in accordance with the Australian Standard 2890.1-2004 to the satisfaction of the Responsible Authority.

The areas set aside for loading and access ways must be constructed, surfaced, sealed, drained, delineated and maintained at all times to the satisfaction of the Responsible Authority. The courier drop-off car parking spaces must not be used for any other purpose and all access aisles must be kept clear.

The loading or unloading of vehicles of goods, plant and materials or other items delivered to or dispatched from the land must take place within the boundary of the land, or as otherwise agreed to by the Responsible Authority.

No loading/ unloading or waste material may be removed from the site between the hours of 9.00pm and 6.00am the following morning seven days a week, or as otherwise agreed to by the Responsible Authority.

Bicycle and motorcycle parking including associated shower and changing facilities, the design of these spaces and associated signage, must be provided and located to the satisfaction of the Responsible Authority. The minimum provision for bicycle parking on site is 96 spaces. Where additional spaces can be provided, either on site or off site, this should be investigated and provided to the satisfaction of the Responsible Authority in consultation with the City of Melbourne if included in adjacent areas.

1. No advertising signs shall be erected, painted or displayed without the written permission of the Responsible Authority unless in accordance with the approved plans or the provisions of the Melbourne Planning Scheme.

In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:

• The development is not started within two years of the date of the permit;
• The development is not completed within five years of the date of the permit; and/or
• The use is not commenced within five years of the date of the permit.

In accordance with section 69 of the Planning and Environment Act 1987, the Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

[1] Clause 10.03 Melbourne Planning Scheme

[2] This is land known as the Ford site at 734 Elizabeth Street, Melbourne, which has a planning permit for a research and development centre.

[3] Rozen v Macedon Ranges SC [2010] VSC 583; Knox City Council v Tulcany Pty Ltd (2994) VPR 229, [2004] VSC 375

[4] Leave was goven to the parties to make written submission about this issue after the hearing.

[5] Clause 21.03-2 Melbourne Planning Scheme

[6] Figure 8: Knowledge and Innovation Clause 21.04 Melbourne Planning Scheme.

[7] Figure 10: Built Form Character Clause 21.05 Melbourne Planning Scheme

[8] Clause 21.04-5 Melbourne Planning Scheme

[9] Clause 17.02-4 Melbourne Planning Scheme

[10] Evidence given by Professor Emeritus Richard Larkins

[11] Professor James McCluskey, Pro-Vice Chancellor (Research Partnerships) and Deputy Vic Chancellor Research, the University of Melbourne; Professor Emeritus Richard Larkins, Monash University;

Laureate Professor Peter Charles Doherty, Department of Microbiology and Immunology, the University of Melbourne; Professor Steve Wesselingh, Dean, Faculty of Medicine, Nursing and Health Sciences, Monash University

[12] Evidence of Professor Emeritus Richard Larkins

[13] Statement of evidence, February, 2011, p24

[14] Although the National Trust (Victoria) has classified Ampol House as significant at the regional level, this classification has no practical or statutory significance.

[15] The site abuts another scheduled area of Heritage Overlay, HO977, which applies to Royal Parade northwards from the Haymarket Roundabout. No one placed any great significance on this particular juxtaposition.

[16] Clause 43.01 of the planning scheme

[17] We have omitted provisions relating to the assessment of the proposed demolition of individual buildings within wider heritage precincts, this not being the case here.

[18] Statement of Evidence, February, 2011, p9

[19] The irony is that the stair itself is not a protected heritage feature of the building and may be removed or altered without a permit.

[20] E.g. Eureka Tower, Southbank, and Southern Cross Station are exemplars of this genre in Melbourne.

[21] The Guidelines for Higher Density Residential Development notes (p21) "taller buildings without a podium level create a dramatic urban form and this may be appropriate on some sites where the local context can support this approach."

[22] [2002] VCAT 416

[23] [2010] VSC 583

[24] At the time of the Rozen decision, the provisions equivalent to clause 10.04 were included in clause 11.02 of the SPPF contained in all Victorian Planning Schemes.

[25] [Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1985) 162 CLR 24, 41]

[27] [Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422, 433; McDonald v Guardianship and Administration Board [1993)] 1 VR 521, 528

[28] See the objectives of Planning in Victoria - section 4(1) of the Planning and Environment Act 1987 and clause 10.02 Melbourne Planning Scheme.