2. Leave is given to the Applicant to amend the permit application to include in the permissions sought:

* a waiver of car parking requirements under Clause 52.02 of the Manningham Planning Scheme,

* demolition under Clause 43.01 (Heritage Overlay) of the Planning Scheme of the house and fence on the subject land referred to in listed in Item HO168 of the schedule to that overlay.

3. The application is adjourned to a Practice Day Hearing on 7 November 2003 for 30 minutes to:

* ascertain if the applicant intends to apply to substitute amended plans for the permit application plans.

4. On or before 27 October 2003 the Responsible Authority must file with the Tribunal and serve on the other parties:

* a statement whether the Responsible Authority opposes the demolition of the house and fence on the subject land subject to Heritage Overlay, and

* if so, a statement of grounds on which they intend to rely.

Mr A Hooper QC instructed by Mr Matt Ryan, Planning Consultant

1. This application for review was listed for hearing before Member Bennett on 6 October 2003 for 4 days.

2. At the commencement of the hearing Mr Hooper sought that certain matters be determined by a member of the Tribunal who was a legal practitioner. At the request of Mr Bennett the Tribunal was reconstituted to include Deputy President Horsfall.

3. The questions of law sought to be ascertained were:

(a) whether the permit application includes the seeking of permission not only for the development of the land under the zone provisions and the Design and Development Overlay but also for:

* a waiver of car parking requirements under Clause 52.02 of the Manningham Planning Scheme,

* demolition under Clause 43.01 (Heritage Overlay) of the Planning Scheme of the house and fence on the subject land listed in Item HO168 of the schedule to that overlay,

(b) if the application does not include all or any of those matters whether the application can be amended to include them, and

(c) if the matter were to proceed on the basis that the separate permit applications had to be made for those matters, whether the demolition was a relevant consideration for the approval of the development.

4. After hearing submissions the Tribunal indicated that it had formed preliminary views that:

(a) leave should be given to amend the permit application to add the requests for permissions for the waiver of car parking requirements and demolition of the house and fence under the Heritage Overlay,

(c) the Responsible Authority have 3 weeks to provide a heritage report to be dealt with on an adjourned date with a right of reply to the Applicant,

5. At this juncture Mr Hooper sought an adjournment of the hearing so that it would not be split and so that his expert witnesses could comment on the heritage material raised by the Council, and also the adjournment be to a directions or practice day hearing, so his client would have the opportunity to consider and advise if it proposed amended plans given the impact of Amendment C33.

6. There was some discussion as to what was protected by the Heritage Overlay and whether all those items were to be demolished. The citation HO168 referred to the existing house on the land "L Crooks House - 19 Tower Street, Doncaster" and the fence was designated as not exempt under Clause 43.01-4. Photographs produced showed free stone wall, perhaps a retaining wall, along the boundary with a brick fence above for part of its length. The plans were not clear whether these were to be demolished, Mr Hooper advised that his clients instructions were that the whole of the freestone wall and fence above were to be demolished.

6. The decision of the Tribunal was that the application should be amended, the adjournment should be granted, no order for costs should be made and orders were made for the Council to indicate its position on the heritage issues.

7. Oral reasons were given at the hearing and these written reasons are intended to reflect those.

8. It was noted that the permit applicant at the request of the Council had lodged another permit application specifically for the demolition of house and fence under the Heritage Overlay. This application has not yet been determined by Council despite all further information having been provided by May 2003. The applicant has not taken the opportunity to lodge a failure application with the Tribunal which would have enabled it to be heard together with this application, for the expressed reason that the Applicant feared further delay, given the two earlier applications by the Council for adjournment in these proceedings for time to allow the Panel Report for the proposed Amendment C33 to the Planning Scheme to issue and to be considered.

9. Mr Hooper advised that the Panel Report had now issued, his client had received a copy and he had had the opportunity to read it.

10. Our reasons derive from Mr Hooper's initial submission that as the permit application was expressed in general terms it implied a request for all the necessary permissions that were required under the planning scheme, whereas it appeared the Council had only considered the relevant zoning controls and the DDO but not as a permit application for demolition and waiver of car parking.

11. The plans show that demolition of the house is necessary. The apartments are proposed over its site. The plans appeared to us unclear whether the fences were to be demolished but Mr Hooper pointed us to correspondence on the demolition permit application file which made it clear that demolition of all the items specified in the Schedule was sought.

12. Our view is that a permit application expressed in general terms without reference to any particular control, such as this one for "Apartment Development", is an application for all relevant approvals required under the planning scheme. In this case it is relevant to note that the Design Statement accompanying the permit application specifically mentioned the Heritage Overlay and the classification of the house and fence and contained a car parking analysis. In circumstances such as these we consider it is normally Council's responsibility to identify all the relevant planning controls and issues and, if they are not sufficiently dealt with in the information provided, to request the appropriate further information from the Applicant. It is understandable to see how a contrary view could be formed, for instance the zoning controls and the DDO require a permit for construction and works, in contrast to different permissions required under a heritage overlay for demolition, a vegetation protection overlay for removal of vegetation and the car parking controls for the waiver of car parking, but we observe it is common practice for Councils to identify and deal with all the permissions required even though they are not specifically mentioned.

13. Whilst we acknowledge Ms Moles' reference to the "Better Decisions Faster" Discussion Paper issued by the Minister in August 2003 and that in Option A3 it proposes that applicants should nominate in permit applications the clauses under which the permit is sought, the current legal requirement is set out in Regulation 16 of the Planning and Environment Regulations 1999 which sets out what a permit application must state including in para (c ) "state clearly the use, development or other matter for which the permit is required", and Council did not argue that this requirement was not complied with in the application and accompanying documents in this case.

14. Further we noted what was said in the transcript of the directions hearing of 23 July 2003. Mr Hooper for the permit applicant had put the Council on notice that he treated the demolition application as part of this application. The matter was discussed on two occasions on that day. Council's representative at the hearing did not contest this proposition. The applicant is entitled to rely on that exchange and we take it into account.

15. Because of the uncertainty surrounding the identification of the issues subject to the permit application, some not being resolved until this hearing, we do not find any ground under Section 109(3) of the Victorian Civil and Administrative Tribunal Act 1998 to make an order for costs against the Applicant for requesting the adjournment on short notice. The Applicant has not conducted the proceeding in a way that has unnecessarily disadvantaged anther party. That involves some element of unreasonable conduct and we don't necessarily regard the Applicant's request for an adjournment in this matter as unreasonable as we consider it was entitled to take the position that the Council should have come prepared to deal with all planning controls relevant to the application at this hearing