RESPONDENTS (Objectors): Henderson and Ball Solicitors

DATES OF HEARING: Wednesday 17 April, Wednesday

MEDIUM NEUTRAL CITATION: [2002] VCAT 1352

A. It is ordered that the Application for Review is allowed and a permit is granted for use and development of the ground floor of the existing building at 722 High Street East Kew for the purpose of a restaurant, reduction of the associated car parking requirement and permission, pursuant to Clause 52.27 of the Boroondara Planning Scheme, to use the subject land to sell and consume liquor under an "on premises licensed (restaurant)" pursuant to the Liquor Control Reform Act 1998, subject to the following conditions:

1. Before the use or development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application, but modified to show:

a) All internal works, including internal repartitioning, kitchen, toilets including disabled toilet, cleaners sink and discharge point, ducting, and location of all exhaust outlets;

b) Full specification, and drawings for the fit out of the kitchen, including the food preparation, storage and serving areas including elevations, surface finishes and location of equipment and kitchen flues and exhaust outlets, which must be designed so as to cause no loss of amenity to the area through the discharge of cooking odours;

c) A fully enclosed area for storage of refuse, designed to prevent the discharge of refuse odour;

d) A loading bay and bin wash down area with provision for hot and cold water, paved and graded so as to ensure all effluent is directed to sewer;

e) Four [4] car parking spaces provided on the land for the exclusive use of the staff of the restaurant.

f) The existing fourteen [14] car parking spaces provided for the exclusive use of the tenant of the first floor of the building on the land.

2. The use and development as shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.

3. The restaurant must not be open to the public outside the hours of 11.00am to 12.00 midnight Monday to Saturday and public holidays, and 1.30pm to 12.00 midnight on Sunday.

4. Liquor must not be served to members of the public outside the hours of 11.00am to 11.30pm Monday to Saturday and public holidays, and 1.30pm to 11.30pm on Sunday.

5. Not more than 67 restaurant patrons may be present on the land at any time between the hours of 11.00am and 7.00pm on Monday to Friday, and between the hours of 11.00am and 1.30pm on Saturdays and public holidays.

6. Not more than 133 restaurant patrons may be present on the land at any time between the hours of 7.00pm and 12.00 midnight on Monday to Friday, and between the hours of 1.30pm and 12.00 midnight on Saturday, Sunday, and public holidays.

7. Four parking spaces must be provided and maintained on the land to the satisfaction of the Responsible Authority in accordance with the endorsed plans for the use of the staff of the restaurant only and kept available for these purposes at all times.

8. The use by staff or patrons of the restaurant of the 14 parking spaces provided and shown on the endorsed plans for the use of the tenant of the first floor of the building on the land [hereinafter referred to as "the 1st floor tenant"] is prohibited.

9. Appropriate means or devices restricting entry to the parking area at the rear of the building to restaurant staff and authorised users of the 1st floor tenant must be provided at the expense of the restaurant operator, upon a request being made in writing by the 1st floor tenant, if in the opinion of the Responsible Authority such means and/or device is necessary to ensure that there is no breach of Conditions 7 and 8.

10. The loading bay shown on the endorsed plans must at all times be kept free of obstructions and be freely accessible to delivery vehicles.

11. The restaurant operator must ensure that vehicles making deliveries to the site do not interfere with the ability of other vehicles to enter and exit the site, and must ensure that such vehicles do no obstruct access to the parking spaces of the first floor tenant.

12. The restaurant operator must make all reasonable efforts, including advising patrons not to do so when taking bookings and printing upon its business cards and advertising material the words "Patrons are requested to respect our neighbours and not park in front of their houses," to ensure that vehicles of patrons and staff are not parked in front of residential properties or on private property without authorisation.

13. A sign must be displayed at a prominent location near the entrance to the restaurant. The sign must state the following:

"Please consider our residential neighbours. Do not disturb their evening or sleep when you leave."

The sign must be clearly visible to persons entering or leaving the premises.

14. Live music must not be played on the premises at any time.

15. Noise levels emitted from the site must not exceed the permissible levels determined under State Environment Protection Policy (Control of Noise from Commercial, Industrial and Trade Premises within the Melbourne Metropolitan Area) No. N-1 and State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2, to the satisfaction of the Responsible Authority.

16. All air conditioning, refrigeration, exhaust systems and other plant and equipment must be baffled to the satisfaction of the Responsible Authority so as to prevent nuisance or annoyance to the 1st floor tenant and persons occupying adjoining or nearby land.

17. Putrescible waste must not kept on the premises so as to cause loss of amenity through offensive odours. All such waste must be properly stored in an enclosed, vermin proof area, and regularly removed from the site.

18. Waste collection must not be carried out in a manner that causes loss of amenity to the area, and except with the further consent of the Responsible Authority waste collection vehicles must not collect waste from the site before 7.00am on weekdays, and before 8.00am, on weekends and public holidays.

19. The amenity of the area, to the satisfaction of the Responsible Authority, must not be detrimentally affected by the use through the:

a) Transport of materials, goods or commodities to or from the land;

b) Appearance of any building, works or materials;

c) Emission of noise, artificial light. smell, fumes, smoke, vapour, steam, waste water, or waste products; or

20. This permit will expire if the use hereby permitted is not commenced within two (2) years of the date of this permit. The Responsible Authority may extend this time if a request is made in writing before the permit expires or within three [3] months afterwards.

The Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

For the Responsible Authority: Mr W Chow, Consultant Planner

For Respondents/Objectors: Mr N Tweedie of Counsel instructed by

For the Applicant for Review/ Mr A Hooper QC by direct brief.

Mr J Date, a Real Estate Agent and the Letting Agent for the subject land. Mr Hooper also called the following expert witnesses:

Mr M Ryan, Consultant Planner, and Mr T Hardingham, Consultant Traffic Engineer

1. This is an Application under Section 79 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicant for review of the failure of the Boroondara City Council ("the Responsible Authority") to grant a permit within the prescribed time.

2. There being no objection, the name of the Permit Applicant and the name of the Applicant for Review were amended to "Vandee Properties Pty Ltd", pursuant to Clause 64(2) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act and Section 127 of that Act respectively.

Constitution of Tribunal

3. Mr Tweedie for Henderson Ball Solicitors, Respondents/Objectors, as a preliminary matter (on Day 1), questioned the constitution of the Tribunal in the light of the decision of Justice Balmford in the Warehouse Group (Australia) Pty Ltd v Bevendale Pty Ltd (2002) VSC 108. Mr Hooper, for Vandee Properties Pty Ltd, the Applicant for Review/Permit Applicant, submitted that this raised a question of law. The Tribunal was reconstituted to include Deputy President Horsfall to consider this question of law. On reconstitution Mr Horsfall presided and sat with Mr Sharkey. Mr Horsfall ruled that the Tribunal as appointed would stand and the hearing would continue. The ruling of Mr Horsfall is set out at paragraph 13 of the Directions dated 6 May 2002.

4. Mr Hooper, (on Day 1), requested that the Permit Application be amended, by adding words to the description of the proposal as follows :

"and permission pursuant to Clause 52.27 of the Boroondara Planning Scheme to use the subject land to sell and consume liquor under an 'on premises licence (restaurant)' pursuant to the Liquor Control Reform Act 1998".

5. I made oral Directions for advertising of the requested amendment to the Permit Application, and those Directions were committed to writing. The matter was adjourned to Wednesday 26 June 2002.

6. Mr Tweedie raised a question of law which was :

"Whether there is jurisdiction to amend a permit application pursuant to clause 64 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, where the proceeding is an application for review of the failure of the Responsible Authority to grant a permit within the prescribed time".

7. Mr Byard heard submissions with respect to this question of law at the commencement of Day 2. Mr Byard gave an oral decision and subsequently prepared a written opinion. A copy of the written opinion was provided to each of the parties on Day 3 and a copy is attached. The first sentence of paragraph 33 of that opinion reads :

"My opinion, in relation to the question of law referred to me, is that the Tribunal does have power under Clause 64 of Schedule 1 of the VCAT Act to amend the permit application giving rise to this proceeding, notwithstanding that it is an application for review of a failure to grant a permit under s79 PE Act."

8. Following the ruling of Mr Byard Mr Hooper requested that the Permit Application be further amended accordingly. There was no objection, and I amended the permit application as set in paragraph 4 above.

9. The proposal, as amended, is for the use and development of the ground floor of the building on the subject land for the purpose of a restaurant, including selling and consumption of liquor under an "on-premises licence (restaurant)", and reduction of the carparking required.

10. The subject land is on the east corner of High Street and Wright Street. Mr Chow, in his written submission for the Responsible Authority, described the subject land and surrounds as follows :

"The site has a modern 2 storey commercial building with a rear car park. It was originally approved as an office and showroom. The ground floor is currently vacant, while the first floor is used as offices by Henderson and Ball, solicitors. Access to the car park and loading bay is from Wright Street.

The portion of High Street in which the site is located is to the east of the Harp Village Shopping Centre, where there is a variety of commercial land uses. It is a 4 lane, undivided arterial road with a tram line running through its centre. Parallel on-street parking is permitted, except during peak hours (7:00am to 9:00am outside the site) when the Street reverts to a clearway. Vehicles are generally parked on both sides of High Street during the day on week days.

By contrast, Wright Street is predominantly residential. There are 10 houses, ranging from Interwar to the present day. Parallel on-street parking is permitted, but is restricted to 2 hours on weekdays. Parked cars can be found on both sides of the street during weekdays".

11. The subject land is covered by the Boroondara Planning Scheme and is zoned Business 3. Land to the south east in Wright Street is zoned Residential 1 and High Street is included in a Road Zone Category 1.

12. A Restaurant is a Section 2 - Permit required use in the Business 3 Zone, pursuant to Clause 34.03-1. A permit is required for buildings and works pursuant to Clause 34.03-4.

13. A permit is required pursuant to Clause 52.06-1 to reduce the car parking required pursuant to the Table at Clause 52.06-5.

14. A permit is required to use land to sell and consume liquor pursuant to Clause 52.27.

Criteria for Decision in Application for Review

15. These reasons should be read in conjunction with the Reasons for Directions dated 6 May 2002.

* To the north east, on the same side of High Street, is a medical centre, offices, disused office furniture showroom, and motor repair shop. These buildings are generally single storey.

* To the north, on the opposite side of High Street, is a Retravision showroom, House of Zeus (interior decor), St Vincent de Paul (op shop), and Le Pine (funeral parlour).

* To the south west, on the opposite side of Wright Street, is a 2 storey office (AJ House). The building fronts onto High Street but has indented parking (about 11 spaces on-site) along the Wright Street frontage.

* To the south east, on the same side of Wright Street, are 4 new two storey units. The units are grouped into 2 pairs, with one Pair facing Wright Street and the other pair facing Normanby Road.

* 284 sqm or 58% of the gross floor area on the ground floor (484 sqm) being set aside for dining. The applicant later submitted a report stating that actual seating areas will be only 200 sqm, after deducting areas set aside for the "undersized" bar, and areas near the entrance and toilets. A proposed table layout was sought by Council, but was not provided by the applicant. The applicant has stated that the restaurant can accommodate up to 133 diners, based on an average density of 1.5 sqm to each diner.

* The remaining floor space being set aside for the kitchen, bar, cool room, ancillary office, storage and toilets.

* An 18 space car park at the rear of the site, 4 of which are available for the Restaurant use. The remaining spaces are leased to the Office on the first floor.

The restaurant will serve a la carte meals, principally during the evening. It will be open for business from 10:00am to 12:00 midnight. These trading hours appear to apply to all days of the week. The total number of restaurant staff is 6.

The total number of parking spaces that need to be waived is 76 spaces (based on a total parking demand for 80 spaces, derived by multiplying 133 seats by the Planning Scheme parking rate of 0.6 space per seat for a Restaurant use).

The applicant submitted a traffic report that concluded that further car parking was not required for the proposed restaurant. The conclusion was based on the following considerations:

* There are 18 parking spaces available on-site.

* There is sufficient parking capacity along public roads (High Street, Wright Street, Clyde Street and Normanby Road), at the Le Pine funeral parlour and at the Retravision store.

* The peak trading periods of the proposed restaurant not coinciding With the surrounding commercial uses.

* Many of the lunchtime customers will walk to the restaurant.

17. Mr Chow set out the planning history of the subject land as follows :

"The existing building was constructed under Permit no. 85/022 issued on 7 Nov 1985, for "an office and showroom and associated car parking". The permit was issued after an appeal (P85/0725) to the then Planning Appeals Board was determined by consent. The land was then zoned light Industrial under the MMPS.

Further permits were issued on 7 Sept 1989 for an illuminated pole sign (Permit no. 88/142; Appeal no. P89/0450) and on 4 Jan 1995 for part of the showroom to include office space and an assembly area (Permit no. 941220)."

18. The permit application was received by the Responsible Authority on 23 July 2001. Further information was sought from the Permit Applicant on 23 August 2001, and this further information was received on 1 October 2001. Notice was by means of a sign on site and notice by certified mail to owners and occupiers of adjoining properties. There were 29 objections.

19. The Permit Application was referred to VicRoads, which advised that it had no objection.

20. The Permit Applicant lodged an application for review of the failure of the Responsible Authority to grant a permit within a prescribed time on 29 November 2001.

21. The Responsible Authority advised the Tribunal by letter dated 28 March 2002 that, had an Application for Review against failure not been lodged, the Permit Application would have been refused on the following grounds :

1. The proposal will have a detrimental impact upon the amenity of the area.

2. The provision made for the accommodation of stationary vehicles is inadequate.

3. The proposal, if approved will tend to result in parking in nearby streets.

"The following matters were instrumental in persuading Council that the application could not be supported:

* The substantial size of the proposed restaurant, and the large number of car parking spaces that were to be waived.

* The grossly deficient on-site parking arrangements.

* The applicant's reliance on privately owned parking facilities which turned out to be unavailable for that purpose (Retravision and Le Pine).

* The limitations of traffic advice (the applicant's and Council's), which focused primarily on parking numbers and did not properly address likely customer parking behaviour and the amenity impacts.

* The strong likelihood that vehicles associated with the restaurant will park in nearby residential streets and on private car parks, causing unacceptable loss of amenity and convenience to the affected parties."

23. Mr Chow submitted with respect to the Business 3 zoning of the subject land :

"The Tribunal will recall that the one of the purposes of the Business 3 Zone is "to encourage the development of offices and manufacturing industries and associated commercial and industrial uses." It is submitted that a large a la carte restaurant is none of these things. It is not an office, it is not an industry, nor is it associated with these 2 uses. If the restaurant is to have any association, it is probably with a Business 1 Zone of the type found further to the west at the head of the Harp Village shopping centre.

It is acknowledged that this zone purpose does not stop the applicant from making an application for a restaurant on this site. However, it is also necessary to examine the other purpose of the Business 3 Zone, which is to implement the SPPF and LPPF, including the MSS and local policies. The planning scheme is very clear in this regard. The portion of High Street to the east of Kew is primarily intended as an employment centre, so that the broader objective of "100% self contained employment" can be achieved. The Commercial Framework Plan in the MSS even picks out this area for "mixed offices and industry."

There are relatively few areas in the municipality to which a Business 3 Zone has been assigned. The relative scarcity of this zone is due to the fewer sites that are suitably located for this purpose. There are only a handful of areas in Boroondara where a Business 3 zoning is applied: Canterbury Road in Surrey Hills, Whitehorse Road in Deepdene, and of course High Street in Kew East. It is therefore imperative that Business 3 zones be used prudently, and not regarded as an extension of the more common Business 1 and 2 zones.

A Restaurant use is permissible in many zones. It does not require location in a Business 3 Zone. It seems that the applicant has been drawn to this site partly because of the existence of a vacant floor in a commercial building. However, the same floor could just as easily be used for an office, with greater potential in overall employee numbers. An office would make a more suitable transitional use next to a residential area. Granted, any office use would still face similar parking problems, but it would create far fewer off-site amenity problems for nearby residents.

On this basis, Council submits that the proposed restaurant use is contrary to the purposes of the Zone and to the strategic outcomes sought for the area under Local policy."

24. Mr Chow assessed the carparking requirement under Clause 52.06, Carparking, and Clause 22.03 Local Carparking Policy. The Table at Clause 52.06-5, sets out a rate of 0.6 spaces per seat and Mr Chow assessed a requirement of 80 spaces. The Table to Clause 22.03 sets out a requirement of 0.5 spaces per seat at dinner time and 0.3 spaces per seat at lunch time. Mr Chow assessed the requirement as 66 spaces at dinner time and 40 spaces at lunch time. Mr Chow submitted :

"It can be seen that even with the parking concessions made under Local policy, the applicant is still 36 to 62 spaces short on this site (after allowing for the 4 on-site spaces).

The above parking calculations are based on full rather than reduced parking rates applicable to each use. The manner in which the Planning Scheme operates requires on-site parking to be provided on the full rate before a use can commence. A reduced rate, or a total waiver does not apply on an as-of-right basis, and can be permitted only after an applicant properly demonstrates that there are mitigating circumstances that suggest the unsuitability of full on-site provision.

The next assumption is that all vacant on-street parking spaces are of equal appeal to motorists seeking to park their vehicles. It does not account for human nature and the propensity for motorists to park in spaces that are closest to their intended destination. Motorists will not park in High Street if the most convenient spots close to the site are already taken, and there are vacant spaces in Wright Street that are closer to the restaurant. The same could be said for Normanby Road and Clyde Street. The availability of parking in High Street, up to 250m away from the site, does not imply that these spaces will be attractive to or be used by restaurant patrons.

The third assumption is that the applicant has a full entitlement to the use of any unfilled parking spaces in public streets. Taken to its logical conclusion, this type of argument rewards the "early birds" who can off-load their parking responsibilities simply by pointing to the existence of spare capacity in the public arena. It penalises applicants who apply for similar permits later, because there is no longer any slack in the public parking system. The long term outcomes for the community are not fair, orderly or sustainable - key qualities of the objectives of planning in Victoria."

25. Table 3 to Clause 22.03 sets out Criteria for Dispensations, and Clause 52.06-1 includes Decision guidelines for reduction or waiving of a carparking requirement assessed in accordance with the Table at Clause 52.06-5. Mr Chow assessed the proposal against Table 1 and the Decision guidelines and submitted :

"The above assessment is inconclusive, and on its own does not lend overwhelming weight to arguments for or against a waiver or reduction in parking. However, there is enough information to suggest that the area already experiences car parking problems at least during the day. Consequently it would be unwise to grant a reduction for a substantial number of spaces without examining other matters such as the impact on local amenity."

26. Mr Chow submitted with respect to impact on local amenity :

"The residents of Wright and other residential streets are already inconvenienced during the day because of patrons and staff of nearby businesses parking their vehicles in the street. The daytime situation has been addressed to some degree through parking restrictions, but it requires community vigilance for this to be policed effectively. The residents currently enjoy some relief at the end of the working day, when shoppers and workers depart with their vehicles and the street space is returned to those who live in the area.

There will be no such relief if the restaurant and parking waiver are approved. It would be naive to expect restaurant patrons and staff to park up to 250m or more away in High Street when there are much more accessible spaces in nearby streets. Residents can expect noise disturbance when restaurant patrons and staff depart in the late hours. No matter how well mannered the departures are, there are the inevitable last minute farewells, door slams, engine starts and noise of vehicles being driven away.

Residents therefore have a reasonable expectation that their road frontages, be used for purposes other than a de facto car park for the benefit of nearby businesses. They and their visitors are entitled to park in their own street, without having to compete for parking spaces with commercial traffic. They also are entitled to some peace and quiet during evenings and weekends, without being disturbed by the noise of departing patrons and their vehicles. This view is supported by the State and Local planning policies described earlier, which seek to minimise the intrusion of commercial activity into residential precincts.

While it is possible for Council to introduce evening parking restrictions into these areas, such restrictions have to be policed if they are to have any effect. All of this comes at a substantial cost to the ratepayers of the municipality, and none of it can be levied at the source of the problem.

The problems are unlikely to be confined to the residents only. Owners of nearby businesses, such as Henderson & Ball, and the tenants of AJ House, can expect to find their private car parks being used by some restaurant patrons during the evening. The only effective way to prevent the unauthorised use of private car parks is for the owners to erect entry barriers. Again, there is a cost to the owner which cannot be recovered.

Equity, as well as amenity issues, are at stake."

* The provision of adequate on-site parking is a fundamental planning principle. It should be applied fairly to all land uses and development proposals.

* The proposed restaurant is exceptionally large, has negligible on-site parking and relies heavily on facilities provided by others.

* The parking waiver sought is a substantial one, which if granted, will exacerbate existing amenity problems in adjacent residential streets.

* The proposed restaurant has little strategic justification in this location. It is contrary to the purposes of the Zone, the MSS and other Local policies.

28. Mr Tweedie spoke to a written submission for Henderson and Ball Solicitors, who occupy the upper floor of the building on the subject land, and other Respondents/Objectors. Mr Tweedie submitted :

"This proposal seeks to establish a restaurant underneath in an established office building, in an area which zoned Business 3 and, accordingly, is primarily intended for office and manufacturing uses and associated activities that are complementary and/or ancillary.

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To encourage the integrated development of offices and manufacturing industries and associated commercial and industrial use.

A stand alone restaurant is not a use which can properly described as being "associated with offices and manufacturing industries".

Nor can it be said that, in the circumstances of this case, that the proposal is for an "integrated" development. On the contrary, the use of the lower levels of the subject building for a restaurant is fundamentally incompatible with the current use of the upper level as a solicitor's office.

High Street is comprised of several distinct parts, which exhibit fundamentally different characteristics. There exists a clear distinction between uses closer to the High Street/Harp Road intersection (which can be properly categorized as a strip shopping centre), and those further down High Street to the north-east, where office uses predominate, and are increasing (note the new office/commercial developments further to the north-east).

The introduction of a restaurant with a minimum capacity for 130 persons will fundamentally change the nature of this interface. The proposed use will result inevitably in large number of patrons parking in surrounding residential areas, and in particular Wright Street. The extended hours proposed are such as to be likely to result in a high degree of amenity loss for those residential houses as a consequence of noise resulting from patrons coming and going from their cars, car engines starting, doors slamming, high spirited conversations etc.

Common sense compels the conclusion that large numbers of patrons will seek to utilize surrounding residential streets (and in particular Wright Street) for parking. Some will also park on High Street, but many will choose to park as close as they can to the restaurant.

Residential streets in immediate proximity to the subject site, and Wright Street in particular, currently enjoy a high standard of amenity. This is in large part because none of the present commercial uses operate to any significant degree outside of normal working hours, and all parking for customers or workers.

The proposal envisages a restaurant which will trade until midnight, 7 days a week. Activity at the site will continue for a significant time thereafter, as staff clean up, dispose of rubbish, and the last patrons leave the restaurant.

This increased level of activity at late hours will have a significant effect on the amenity of these areas. The surrounding areas have a number of higher density developments, and are built on blocks with minimal front setbacks. It is naive in the extreme to suggest that large numbers of people leaving the site late at night and travelling to their cars parked in these streets will not have a serious impact on amenity.

In the absence of a seating plan, or any proposed limit on numbers, the proposal should be assessed on the basis of its maximum likely impact."

29. Mr H Lee, a Respondent/Objector, of 5 Wright Street, spoke to a written submission. Mr Lee submitted that :

"... the proposal would more than likely result in the inundation of cars in the residential streets of the area".

30. Mr Lee conducted his own parking surveys, on Friday 9 November 2001, Friday 5 April 2002 and Saturday 6 April 2002. He compared carparking and supply with occupied carparking spaces within 100m of the subject land.

31. Mr Lee went on to assess parking implications of the proposal against the decision guidelines. Mr Lee also discussed the carparking analysis and the expert report prepared for the Applicant for Review/Permit Applicant. Mr Lee submitted :

"I now refer to the parking survey data I have collected.

Each of the three surveys indicates that free parking spots on Clyde Street are quite limited in the evenings, presumably because residents and their guests park on the street.

Considering also that Wright Street is the next-best alternative to parking on High Street in terms of visiting the proposed, site in the evening (if not the best alternative), we see that, more than likely, parking spots on Wright Street would be exhausted immediately were the restaurant to hit its peak occupancy.

Plainly put, if I came home one evening after 7pm or so, I would most probably have to find alternative parking away from my residence. A parking spot on Clyde Street is not equivalent to a parking spot on Wright Street for a Wright Street resident, and vice versa. And good luck if I tried to have a party on Friday or Saturday night!

Even ignoring this argument, we have the fact that in each of my surveys, I counted between 13 and 20 parking spots occupied within 100m of the site, out of the nominal supply of 68. This means that the expected available car parking spots within 100m of the site is really only between 48 and 55, so if the applicant's demand estimate is inaccurate (which I assert that it is), and if in fact the restaurant should have a provision of 0.5 car parking spaces per seat as required by the Local Provision for the Boroondara Planning Scheme, then the car parking requirement is 130 x 0.5 = 65 spaces, which is surely higher than the expected availability of car parking in the area.

Even if we discount the validity of the data I have collected and use the data provided by the applicant, which describes between 3 and 7 cars parked near the site, there would still only be between 61 and 65 expected available spaces, not enough to meet the Planning Scheme requirement, and without any evidence that the demand will be significantly less than the requirements, thereby really is no reason to grant a reduction in car parking requirements."

32. Mr R Wakelin, a Respondent/Objector, of level 1, 722 High Street, made an oral submission and spoke to his statement of Grounds. Mr Wakelin expressed concern about exhaust fans for cooking, signage on the building, rubbish disposal, traffic congestion and carparking. Mr Wakelin left following his submission and Mr Tweedie later advised that he was now appearing for Mr Wakelin, in addition to the other parties for whom he was appearing.

33. Mr Hooper called Mr J Date, the Letting Agent for the building on the subject land, as a witness. Mr Date was not sworn. Mr Date said that his firm had been agents for this property from 1992 or 1993, and the ground floor which was proposed for the restaurant had been vacant for 20 months. Mr Date said that there had been substantial advertising, including for an office, and regard had been had to the Business 3 zone provisions.

34. Mr Tweedie, in cross-examining Mr Date, put it that there had been difficulties between the landlord and Henderson and Ball, one of the client's of Mr Tweedie, who had found it necessary to take legal action against the landlord on two occasions. Mr Tweedie put it that such conflict was hardly likely to be attractive for a prospective tenant, and Mr Date responded that new tenants would be well received.

35. Mr Hooper called Mr M Ryan, a Consultant Planner, as a witness. It was the evidence of Mr Ryan that :

"The East Kew (or Harp Village) shopping strip is comprised of Business 1, Business 2 and Business 3 Zones. The primary part of the shopping 1 centre the Business 1 zone and it is located about 120 metres from the subject site to the west. The site is located in the Business 3 Zone, with the Business 2 Zone opposite, and is therefore in one of the 'peripheral, parts of the shopping centre but close to a primary part of the centre.

The East Kew Centre fulfils a local service centre function as well as providing, particularly in peripheral areas, for office uses and various low intensity retail uses such as home maker shopping. It therefore provides for the more intensive convenience shopping, including local services and various food outlets, and comparison shopping', which generates a lower parking rate due to the larger bulkier items and lower intensity activity.

The site is located in the peripheral area where the land holdings and premises are larger and the demand for carparking and the activity levels, of several of the operations are consequently lower.

The East Kew shopping strip is separate from, but has association with, the Kew shopping centre (Kew Junction) which is a higher order Community Service Centre. It fulfils a community role. It is an active strip centre with a wider range of community services and facilities such as a police station, financial facilities and a supermarket and large office areas and a range of good retail outlets. East Kew also has some of these facilities and services, however it is a lower order centre.

A restaurant is an appropriate and proper use for the site and for the centre and will increase choice and improve the level of service centre provides to locals. The proposal is an opportunity to secure a "use" that both compliments and attracts business to the centre, and to provide a new facility in an appropriate location, in a Strip Shopping Centre.

This development meets the objectives of the Planning Scheme and Local Policy framework in that it is appropriately located and strengthens the diversity of the centre. This centre is identified for additional Restaurants and the location has many advantages. It is a peripheral location, there is adequate on-street parking and the hours of operation are different than most other uses.

The applicant is seeking approval to contribute to the East Kew Shopping Centre, and to assist the Centre to perform its service function.

The proposal also achieves a balance in regard to its impact on residential amenity. The potential impacts, which are mainly related to car parking, are expected to be minimal due to the adequate supply of car parking in the commercial area, along High Street, that is available for patrons of the restaurant.

36. Mr Hooper submitted, with respect to the Officer Report, that it was significant that the Planning Officer did not think it appropriate to put forward strategic planning policy hurdles and there was no recommendation on that basis. He submitted that the case for the Responsible Authority was different in that a strategic planning policy case had been put for the Responsible Authority and also by Mr Tweedie. Mr Hooper submitted that the Tribunal should be cautious about relying on planning policy or the Business 3 provisions in deciding this matter.

37. Mr Hooper called Mr T Hardingham, a Consultant Traffic Engineer. Mr Hardingham spoke to a written report prepared by Ms D Donald, also a Consultant Traffic Engineer but who was unavailable, and supplementary material. Mr Hardingham adopted the report of Ms Donald. The report assessed parking supply and utilization based on parking surveys with respect to Clause 22.03. The report also said that the Department of Infrastructure undertook a review of carparking rates within the Victorian Planning Provisions in 1999, and recommended that the carparking rate for a restaurant should be reduced to 0.4 spaces per seat. This would lead to a requirement of 52 spaces for 130 seats. The report also made reference to an empirical assessment of carparking demand by the firm of which Mr Hardingham and Ms Donald are part, Andrew O'Brien and Associates Pty Ltd. The evidence was that based on the survey results and the location of the subject land, the restaurant would be likely to generate a parking demand of 0.30 spaces per seat in the day time and 0.35 spaces per seat in the evening, leading to a demand of 39 spaces during the day and 46 spaces in the evening. The evidence was that there was a minimum of an additional 60 vacant on-street spaces within 100 metres of the site and given that there were four on-site car spaces available, there would be more than adequate parking available.

38. The Responsible Authority and the Respondents/Objectors were concerned that the proposal was to establish a restaurant in an established office building in a Business 3 Zone. The Tribunal was reminded of the purpose of the Business 3 Zone. It was not contested that a permit for use of land as a restaurant can be granted in a Business 3 Zone, pursuant to Clause 34.03-1. A permit is also required for buildings and works in a Business 3 Zone, pursuant to Clause 34.03-4. That Clause also sets out Decision guidelines in addition to the Decision guidelines at Clause 65.

"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."

40. It was submitted for the Responsible Authority and for the Respondents/Objectors that a permit should not be granted for a restaurant in this part of High Street, but it would be more appropriate to locate a restaurant closer to the High Street/Harp Road intersection. This argument relied at least to some extent on reference to the following State and Local planning policies:

41. Mr Tweedie made reference to Table 1 to Clause 22.10, Future Roles for Shopping Centres. The Centre sets out the current role for the Harp Village Shopping Centre as a medium convenience retail centre. Under "Description & Activities" the Table reads:

"Large spread out centre with broad range of convenience goods and specialty shops, small supermarket facility, hotel and number of motor cycle sales and service facilities. Significant office development in area. Number of vacant or underutilised premises in the centre suggest the need to consolidate activities and reduce its overall size."

42. The Table sets out the future role of the Harp Village Shopping Centre as:

"Specialist motorcycle retailing, Restaurant and Business Support centre in addition to current convenience retailing role."

43. Mr Tweedie made reference to the Commercial Framework Plan, Table 21.3 at Clause 21.08, which he submitted:

"appears to nominate the intersection area as a "Main Secondary Retail Centre" and the area around the subject site as "Mixed Industry/Office".

44. Mr Tweedie also made reference to the different zonings, Business 1, 2 and 3, that have been applied to different areas of High Street.

45. I have had regard to the submissions for the Responsible Authority and the Respondents/Objectors, but I am not convinced that there are overwhelming strategic or policy reasons why a restaurant should not be allowed on the subject land. I consider, having regard to the Future Role for Harp Village Shopping Centre as set out in Table 1 to Clause 22.10, and the evidence of Mr Date regarding the difficulty of letting the subject premises, that it is appropriate to consider a restaurant for the subject premises.

46. An important issue with the respect to any restaurant proposal is provision for car parking. It was the evidence as set out in the written report of Ms Donald and the oral evidence of Mr Hardingham, that there was adequate on-street car parking available within 100 metres of the proposed restaurant. This evidence of supply of car spaces available had regard for kerbside parking restrictions and car spaces in side streets that were not in front of dwellings.

47. The Tribunal has held on many occasions that Officer Reports are one matter that it can consider. Mr. Marsden in Modern Living Design and Construction Pty Ltd v City of Box Hill, 1 AATR 166, at page 169, said:

"The question of officer reports, was considered by the Land and Environment Court in New South Wales in Porter v Lane Cover Municipal Council 18 APAD 417. The facts of that case are unremarkable and it is sufficient to quote from the headnote which states:

1. The local authority was not bound in any way by its officer's opinion or recommendation.

2. The fact that the officer at all material times had taken a favourable attitude to the proposed extension and had recommended approval are relevant factors for consideration.

Having considered the question both from the viewpoints of public interests and fairness, I agree with and adopt the above conclusion. However, I cannot over-emphasize that the opinion of the officer or officers is but one of the considerations which must be placed on the scales, and balanced. Neither the Council nor, on appeal, this Tribunal is in any way bound by the contents of an officer's report as will become apparent later in this determination.

That the Tribunal must take into account many conflicting matters is well illustrated in the present appeal where I have considered the following:

* all relevant statutory provisions of the Planning Scheme

* past decisions of the Planning Appeals Board and this Tribunal

48. The Officer Report quoted the response to an internal referral with respect to car parking as follows:

"The Boroondara Planning Scheme has been applied in assessment of the parking generation relating to the proposal. Clause 22.03-3 of the Local Provision indicated:

Standard Requirement: 0.5 spaces/seat at dinnertime

Application of the rates which are typical for restaurants in Boroondara indicate that the proposed restaurant will generate approximately 39 spaces at lunchtime and 65 spaces at dinnertime. Traffic does not object to the application on car parking grounds."

49. Mr Hooper tendered a copy of a report from the Traffic and Transport Section of the Responsible Authority. The report analysed the carparking demand in the context of Clause 22.03 and provided details of parking surveys. The report said under the heading "Possible Action/Conclusions" :

"Car parking utilisation surveys indicate that there is spare capacity along High Street to accommodate the majority of parking demand. This is however depended upon motorist choosing High Street as their first point of call. It is acknowledged that motorists may decide to park along residential streets south of High Street, in the vicinity of the restaurant, ahead of High Street and utilise High Street when parking supply along residential streets is exhausted.

Parking performance will be monitored over a period of time following the opening of the restaurant. Subject to extreme parking intrusion along residential streets, by restaurant diners in the evening, the following action is available to Council to address parking impact and contain parking along High Street.

* Consider the installation of short term parking restrictions or a "Resident Permit Zone" along residential streets abutting High Street in the vicinity of the proposed restaurant, following parking investigation and subject to resident support.

Furthermore, the option is available to the developer to enter discussions and an arrangement with the management of Le Pine Funeral Parlour, for use of their off street car park (50 spaces) during the evening."

50. The Officer Report included its own assessment of car parking against the Decision guidelines contained in Clause 52.06-1 and the Criteria set out at Table 3 to Clause 22.03. The assessment with the respect to the availability of car parking in the locality was:

"Although the report submitted with the application refers to the existing supply of car spaces in the area surrounding the proposed restaurant, upon further investigation not all are as available as the report suggests.

Although the site has 18 car spaces to the rear of the proposed restaurant, only 4 of these are for the sole use of the subject site, the remaining 14 are leased to the office on the first floor. The first floor office has made it clear that their 14 spaces will not be available for restaurant patrons as their staff often require after hours access.

The report refers to 32 spaces, which would normally be available at dinnertime; these are made up of 5 spaces at Retravision (733 High St) and 27 at Le Pine Funerals (741 High St). Both proprietors are in fact objectors and both individually state that they have not consented to the use of their car parks after hours. Further, Le Pine Funerals often hold evening ´rosaries' for grieving families further making the use of these spaces after hours not a possibility.

The report also makes reference to the availability of 11 parking spaces associated with an office block in Wright Street (directly opposite the proposed restaurant). The proprietor, also an objector, has indicated that the use of these spaces after hours is not a possibility, nor will they be made available, as his staff often require after hours access."

51. The Officer Report went on to assess car parking against Clause 22.03 and Clause 52.06 and concluded :

"Based on the above assessment according to the Criteria for Parking Dispensation alone, the proposal fails to rate satisfactorily in 8 out of the 9 criteria relevant in assessing whether this proposal is justified in failing to meet its on site car parking requirement.

In response to the grounds of objection received from 24 objectors, it is difficult not to agree with the potential impact such a proposal will have upon the residences within the sites' immediate surrounds. It cannot be ignored that the request to provide dispensation for between 35 and 61 car spaces will have a direct negative impact upon the parking in the area."

52. The Officer Report assessment of availability of car parking considered the car parking at the rear of the subject land, of which only four of those spaces would be available, and noted that car spaces at Retravision, Le Pine Funerals and an office block in Wright Street would not be available for this proposal. Neither the expert evidence nor the traffic and parking analysis have included the car spaces at the rear of the subject land or the car spaces on other private property in their analysis. The Officer Report makes the following comments with the respect to the expert evidence and the work of the Traffic and Transport Section of the Responsible Authority:

Two (2) separate empirical assessments of car parking in the vicinity Of the site have been presented with this proposal. One from an external body, commissioned by the applicant, the other an internal document sought upon request from Council's Traffic Engineering department. Both focus the technical side of the assessment; that is, the physical spaces of car parking within the area. Neither seriously addresses the impact upon the residences within the immediate surrounds of the proposed restaurant. Only Council's Traffic Report considers the impact upon neighbouring residences and only proposes a response should the worst-case scenario evolve."

53. I consider, having the regard to both the expert evidence and the analysis of the Traffic and Transport Section of the Responsible Authority, that adequate parking would be available for the proposed use, without relying on use of on-street car spaces in front of dwellings in side streets. I therefore consider it appropriate to permit a reduction in the parking provision rate set out at Table 1 to Clause 22.03, having regard to the Criteria in Table 3. I have come to this conclusion because I consider that adequate on-street parking is available along the site frontage and along nearby non-residential frontages.

54. I would have come to the same conclusion, ie. that a permit should be granted to reduce the number of car spaces required, pursuant to Clause 52.06-1.

55. Concern was expressed by the Responsible Authority and Respondents/Objectors that will be loss of amenity enjoyed by residents of Wright Street and other nearby residential streets. The residential interface in Wright Street is separated from the building of which the subject premises are a part by the car park at the rear of that building. I consider it likely that there will not be significant parking in front of the dwellings in Wright Street resulting from the use of the premises as a restaurant. I do not consider that there will be significant amenity impact on residents of Wright Street and other streets resulting from car parking or behaviour of patrons.

56. For the above reasons this application is allowed subject to conditions. It is appropriate for a permit to be granted, and I will so order.

57. Draft conditions were provided by Mr Chow for the Responsible Authority under cover of a letter dated 15 April 2002. Mr Hooper undertook to have further draft conditions prepared.

58. Mr Ryan provided further draft conditions and these were considered towards the conclusion of the hearing on Day 3. The parties made submissions, including draft conditions tendered by Mr Tweedie concerning the loading bay and noise. I have directed that a permit be granted subject to conditions, having regard to the draft conditions, the further draft conditions and submissions made thereon. I note that the draft conditions provided by Mr Chow made reference to the number of seats in the restaurant, including not more than 133 seats between 1.30pm and midnight on Sunday. The further draft conditions provided by Mr Ryan did not make reference to Sunday. I have adopted for Sunday the provisions contained in the draft conditions submitted by Mr Chow.

59. I directed at the end of Day 3 that Mr Hooper, within 7 days, file with the Tribunal and serve on Mr Tweedie any Application for Costs. I also directed that Mr Tweedie, within 14 days, file with the Tribunal and serve on Mr Hooper any response to that Application for Costs. Those Directions were satisfied, and no party requested that the question of costs be listed for hearing.

"The Permit Applicant, Vendee Properties Pty Ltd makes application pursuant to S. 109[3][b] of the VCAT Act for an order that Henderson and Ball, solicitors. and Mr. R. Wakelin, the parties represented by Mr. N. Tweedie, pay its costs incurred at the hearing unnecessarily and from its perspective, when it was ready to proceed with the case, wasted, by reason of the prolongation of the case by -

[i] Mr. Tweedie questioning the constitution of the Tribunal and requiring its consideration as a preliminary matter on the first day of the hearing;

[ii) Mr. Tweedie objecting to the amendment of the permit application so as to include permission under C1.52.27 of the Planning Scheme on the basis that this course was not legally open to the Tribunal.

Both these diversions were found to have no merit and inappropriately pursued as evidenced by the ruling of Deputy President Horsfall repeated in paragraph 13 of Directions and Reasons dated 6 May 2002 and his comments contained in paragraph 14 and as evidenced by the conclusions expressed by Mr. Byard in paragraphs 9, 10, 11 and 12 wherein he described Mr. Tweedie's arguments as producing an "absolutely absurd result," misconstruing the purpose and effect of Clause 64 and finally describing its purpose as providing a means of "avoiding obstructive points like those raised here by Mr. Tweedie."

It is also relevant that no "merits" argument was directed by these Objectors against the licensed aspect of the proposed restaurant thereby confirming that this latter point was obviously pursued as a technical device to defeat and/or delay the review application.

It is submitted that half a day was wasted in these unnecessary excursions and that without them the hearing would have been completed without the need for the extra two hour hearing on Friday 19 July.

The Permit Applicant seeks an order for the payment of $3,850 costs representing the payment of the following accounts [copies attached] of their Counsel and Consultant -

or for such. other amount as the Tribunal considers appropriate in the circumstances."

62. Mr Tweedie submitted on behalf of his clients:

"The Respondent Objectors submit that no award of costs should be made for the following reasons:

1. The issue raised as to the constitution of the Tribunal on the first bearing date did not result in a disadvantage to the Applicant, since as a consequence of the application the Tribunal extended the time for hearing on that day from 3 hrs to a full day.

2. In respect to the objections raise to the application for an permit application, the Tribunal will be aware that the application was made:

b. after the Responsible Authority and the Respondent Objectors had presented their cases, despite that fact that the applicant's ,representatives (including Senior Counsel) were aware, or should have been aware, that the application to amend was to be made;

c. as a consequence of the neglect of the Applicant and/or the Applicant's representatives in that

i. the Applicant's planning consultant had either not been instructed to seek planning permission for a licensed restaurant or had failed to properly draft the permit application or to have proper regard to the provisions of the planning scheme in doing so;

ii. the Applicant was represented by Senior Counsel who had either not been instructed that the proposed restaurant was licensed, or failed to have regard to the obvious fact that no permission had been sought under clause 52.27 of the planning scheme.

d. in the context of the hearing based upon a failure to decide an application, and not a refusal.

3. The making of the application necessarily resulted in the adjournment of the hearing to allow the applicant time to properly advertise the amended application.

4. As a consequence of the making of the application to amend the application on the first day of the hearing, the Tribunal wasted approximately one hour in hearing time on day one of the hearing in considering how to deal with the matter, and in making directions with respect to advertising, etc.

5. The making of the application put the Respondent Objectors to additional and unnecessary cost and inconvenience in that it was necessary for the Respondent Objectors' legal representative to give consideration to, mid approve, tile form of the proposed Notice of Advertisement.

6. The objections raised by the Respondent Objectors to the amendment were valid objections which were consistent with the approach adopted by other divisions of the Tribunal with respect to such application in the context of an application to review a failure to decide, and in particular the decision of Member Monk in Silvio Mazzei v Banyule City Council_, Appeal No 1999/047382, unreported, 24 November 1999 (a copy of which is attached)._

7. The Respondent Objectors objections to the amendment of the permit were based on both legal and discretionary grounds. Counsel for the Respondent Objectors prepared written submissions in respect of both grounds, and (having regard to issues of time) chose not to present any oral argument as to the discretionary matters, as he was entitled to do. In these circumstances it cannot be said that the time taken to deal with the objection was unreasonable.

8. The allegation that the objection was pursued as a "technical device to .. delay the review application" is without foundation. Regardless of the legal issues, there were, and are, sound discretionary reasons to deny any application to amend a permit application made in these circumstances.

9. It has not been alleged by the Applicant that anything done by the Respondent Objectors was "vexatious", which would require a finding that they were completely without merit, and doomed to failure. It would be completely inappropriate for the Tribunal to make an order for costs on the basis of unsuccessful submissions that are not alleged to be, and were not, "vexatious".

63. The provisions for costs are set out at Division 8 of the Victorian Civil and Administrative Tribunal Act 1998. Section 109(1) provides that, subject to Division 8, each party is bear its own costs. This is the normal practice of the Tribunal. Section 109(2) provides that the Tribunal may order that a party pay all or a specified part of the costs of another party. Section 109(3) provides that the Tribunal may make an Order under sub-section (2) only if satisfied that it is fair to do so, having regard to the matters set out in sub-section (3).

64. Mr Tweedie was not successful in either legal point that he raised. It is arguable however that there was an argument on both points, even if that argument was not ultimately successful.

65. I therefore consider that the normal practice of the Tribunal should apply, ie. that each party should bear its own costs as is provided for in Section 109(1).

Opinion of Mr Byard, which was quoted in Paragraph 7 of these Reasons (9 pages).

Vendee Properties Pty Ltd V Boroondara CC, Henderson & Ball & Others

1. This case involves an application under s 79 of the Planning and Environment Act 1987 (PE Act) to review the failure of the Responsible Authority to grant a permit within the prescribed time. It is a case being heard by Mr Gerard Sharkey, Member.

2. The proposal for which planning permissions are sought, as set out in the permit application and amended at a hearing of this case conducted on the 17 April 2002, is for the use and development of an existing building for the purpose of a restaurant with a reduction in the associated car parking required. The applicant, on the 17 April 2002, sought a further amendment to the purpose to include permission pursuant to clause 52.27 of the Boroondara Planning Scheme to use the land to sell or consume liquor under an on premises licence (restaurant) pursuant to the Liquor Control Reform Act 1998.

3. Mr Tweedie, barrister appearing for several respondent/objectors, objected to this proposed amendment, amongst other reasons, on the basis that the course was not legally open to the Tribunal. The questions of law thereby raised was not determined by Mr Sharkey, who is not legally qualified. Pursuant to Clause 66(1)(b) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) the question of law is to be determined in accordance with the opinion of myself as a member who is a legal practitioner nominated for the purpose by the President through his delegate. The question of law in relation to which I am to give an opinion is set out in paragraph 2 of the directions of an interim determination dated 6 May 2002 issued by Mr Sharkey and Mr Richard Horsfall, Deputy President following a hearing in which they participated on the 17 April 2002. The question is in the following terms:-

"The question of law is whether there is jurisdiction to amend a permit application pursuant to Clause 64 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, where the proceeding is an Application for Review of the Failure of the Responsible Authority to grant a permit within the prescribed time."

4. On the face of it the answer to this question is: yes, the Tribunal certainly does have power to amend the permit application pursuant to Clause 64 of Schedule 1 of the VCAT Act. That clause, so far as relevant, and with emphasis added by me, reads as follows:-

"64(1) This clause applies to the following proceedings -

(a) a proceeding for review of a decision under the Planning and Environment Act 1987 of the responsible authority in respect of an application for a permit or the failure of the responsible authority to grant a permit;

(2) At any time in a proceeding to which this clause applies the Tribunal may make any amendment it thinks fit to the application for the permit, ... the subject of the proceeding.

(3) Without limiting the generality of sub-clause (2) the Tribunal may make an amendment to an application for a permit under the Planning and Environment Act 1987 -

(a) as to use or development different from the use or development mentioned in the application;

(b) as to the land to the use or development of which the application relates.

(4) This clause is in addition to, and does not limit or affect section 127."

5. The case being heard by Mr Sharkey was part-heard on the 17 April 2002. It was adjourned for further hearing on the 26 June 2002, but on the basis that I would hear the representatives of the parties in relation to the question of law at the beginning of the hearing on that day.

6. In the course of the hearing before me s 127 VCAT Act was not discussed. On the contrary, the discussion was in terms of Clause 64 referred to above. Section 127 provides the Tribunal with a general power to amend any document in a proceeding, either on its own initiative or on the application of a party. Whilst I see no reason to doubt that s 127 would authorise the Tribunal to make the amendment to the permit application sought by the applicant, I considered and gave my opinion at the hearing in terms of Clause 64. It can be noted, by reference to the words emphasised in the above quotation of the terms of Clause 64, that it deals separately with the review of "a decision" of the responsible authority on the one hand, and "failure" of a responsible authority to grant a permit on the other.

7. This distinction recognises a distinction that exists in Division 2 of Part 4 of the PE Act. That division deals with various types of reviews by the Tribunal. A number of them enable parties, in various circumstances, to apply to the Tribunal for a review of a "decision" of the responsible authority. Without making an exhaustive list here, ss 77 and 82 provide examples. The former enables a permit applicant to apply to the Tribunal for a review of "a decision" by a responsible authority to refuse to grant a permit. The latter enables an objector to the grant of a permit to apply to the Tribunal for review of "a decision" of the responsible authority to grant a permit. These provisions can be contrasted with s 97. That section enables an applicant to apply to the Tribunal for a review, not of a decision of the Tribunal, but "of the failure of the responsible authority to grant a permit within the prescribed time". It is common ground that the prescribed time under s 79 (save for some qualifications that need not be discussed here) is 60 days.

8. Thus Clause 64(1)(a), by the words that I have put in bold in paragraph 3 above, makes it explicitly clear that the Tribunal has power to amend the permit application, not only in relation proceedings to review "decisions" under provisions like ss 77 and 82 PE Act, but also in relation to proceedings to review a "failure" under s 79.

9. The proposition that the Tribunal has such power under that provision is so obvious and so explicit that I have found it rather surprising to have this particular question of law referred to me for an opinion. I would have thought the matter was perfectly clear and obvious. Nevertheless, Mr Tweedie mounted an ingenious, if somewhat tortuous and convoluted, argument to the contrary.

10. As a matter of fact, he did not spend much of his time or energy on attempting to contradict the plain words of Clause 64 to the effect the Tribunal does have power to make such amendments to the permit application. Rather he mounted an argument in support of a slightly different legal question to the one referred to me. He maintained that if the Tribunal was to exercise a power under Clause 64 to amend the permit application in relation to which a failure review has been brought under s 79 PE Act, the result of exercising that power is to destroy the jurisdiction of the Tribunal to consider and determine the s 79 review proceedings.

11. I must say, with due respect to Mr Tweedie, that this would be a completely absurd result. There is absolutely no point in amending a permit application that has given rise a s 79 failure review if the result of doing so is to destroy the review proceedings. There is also no point in having the power to do so, if that is the result of its exercise. If that was the intended result it would have been more appropriate for Clause 64(1)(a) to specify that the power of amending a permit application that it gave is confined to proceedings that review "a decision", to the exclusion of a review of a "failure". If the intention was as Mr Tweedie contends, then Parliament in enacting the Clause 64, instead of saying "or the failure of the responsible authority" should have said "but not the failure of the responsible authority to grant a permit". At least the enactment should have spelt out, if that was the intention, that any exercise of the power in relation to a failure review would take away the jurisdiction of the Tribunal to proceed further with the matter.

12. Of course the reason why the clause does not say these things is that Mr Tweedie has completely misconstrued both the purpose and the effect of Clause 64. The purpose of the clause, and indeed its predecessor which was s 53 of the Planning Appeals Act, is not to prevent the Tribunal from dealing with planning proceedings of this sort, but to enable it to do so and to give it the means of avoiding obstructive points like those raised here by Mr Tweedie. The intention is, and always has been since the predecessor provisions were enacted, to give the Tribunal the means of dealing with the real proposal and the real matters in dispute in relation to the proposal without being prevented from doing so by technical arguments or by slips or errors or omissions in the preparation of the permit application.

13. In support of his argument to the contrary, Mr Tweedie took me to ss 41 and 42(1) VCAT Act. Section 40 of that Act provides that the Tribunal has two types of jurisdiction namely original jurisdiction and review jurisdiction. These two categories comprehend the entire jurisdiction of the Tribunal so far as Division 1 of Part 3 of the VCAT Act is concerned. Section 41 provides that the original jurisdiction is the jurisdiction of the Tribunal other than its review jurisdiction. Thus every item of jurisdiction that does not come within the review jurisdiction is original jurisdiction. The review jurisdiction, in accordance with s 42(1), is jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision-maker [emphasis added]. I note the reference to "decision" and the lack of inclusion of "failure".

14. On this basis a review of a failure, as opposed to a review of a decision, would appear to be in the original jurisdiction of the Tribunal.

15. I might add, that it is common ground that the PE Act is an enabling enactment for the purposes of s 42(1) and the VCAT Act generally.

16. As I understand it, Mr Tweedie's argument fails if a s 79 review is original jurisdiction rather than review jurisdiction. In any event, a particular proceeding provided for in an enabling enactment does not become part of the "review jurisdiction of VCAT simply because the word "review" may appear in the enabling provision. Section 42(1) refers to "review of a decision" as coming within the review jurisdiction, and not other proceedings such as review of a failure or any other proceedings that is not a review of a decision of the "decision-maker".

17. Mr Tweedie's next step was to take me to s 4 VCAT Act. Section 4(1) provides, amongst other things, that, for the purposes of the VCAT Act or an enabling enactment, a person makes a decision if the person makes, suspends, revokes or refuses to make a decision". Furthermore, Section 4(2) provides that a decision is made under an enactment if it is made in the exercise or purported exercise of a function conferred by or under that enactment. A decision that purports to be made under an enactment is deemed to be a decision made under the enactment, even it is beyond the power of the decision-maker. A refusal by the decision-maker to make a decision under the enactment because the decision-maker considers that it cannot lawfully be made is also deemed to be a decision to refuse to make a decision. This much of s 4(2) merely sets the scene and provides the forerunners of the provision Mr Tweedie wishes to rely upon. That is s 4(2)(d). It provides, for the purposes of VCAT Act an enabling enactment:-

"(d) A failure by a decision-maker to make a decision under an enactment within the period specified by that enactment is deemed to be a decision by the decision-maker at the end of that period to refuse to make the decision."

18. On this basis Mr Tweedie argues that the failure of the responsible authority, in terms of s 79 PE Act, to grant a permit within 60 days from the lodgement of the permit application is a failure within s 4(2)(d) and is thus "deemed" to be a decision to refuse to make a decision. Pursuant to s 4(1)(a) a person who refuses to make a decision thereby makes a decision. Thus there is a deemed decision not to make a decision. Mr Tweedie then returns to s 42(1). Because the failure to grant a permit within 60 days is "deemed" by s 4(2)(d) to be a refusal to make a decision, and because a refusal to make a decision under s 4(1)(a) is making a decision, therefore such a review is, after all, a review of a decision by a decision-maker and thus an item of jurisdiction within the review jurisdiction in accordance with s 42(1).

19. On this basis Mr Tweedie takes it that a review of a failure pursuant to s 79 PE Act is, after all, deemed to be a review of a decision and thus within the review jurisdiction of the Tribunal as opposed to the original jurisdiction of the Tribunal. There can be no failure and thus no deemed refusal and thus no decision by the responsible authority if the question in issue has never been before the decision-maker (in this case the responsible authority). The application for permission to use and develop the existing building for a restaurant had been before the responsible authority and so have the question of whether permission should be granted for a reduction in the parking requirement, but the question of granting permission under Clause 52.27 of the Boroondara planning scheme to use subject land to sell or consume liquor has not. If the question of granting that permission was to be now raised by the proposed amendment inserting it into the permit application. The Tribunal cannot determine the question because the responsible authority has never considered it and has never made a decision or a deemed decision that can be reviewed under the Tribunal's review jurisdiction.

20. It makes no difference, so far as Mr Tweedie's argument is concerned , that the responsible authority and other parties have had, or can be given, ample notice and ample opportunity to consider and prepare their cases in relation to such a question. No application in relation to that question has been received by the responsible authority, the prescribed time has not run, no decision has been made and there has been no failure to decide within the relevant time therefore no refusal or deemed refusal or decision.

21. I note, as mentioned at the hearing, that the forerunner of Clause 64 was s 53 of the Planning Appeals Act. That section, at the time of its repeal with the advent of the package of VCAT legislation whereby this Tribunal replaced the Administrative Appeals Tribunal as the planning tribunal in Victoria, read:-

"52(1) At any time in the course of hearing an appeal under the Planning and Environment Act 1987 in relation to a decision of a responsible authority in respect of an application for a permit or a failure of the responsible authority to grant a permit the Tribunal hearing the appeal may, if it considers it desirable to do so, make such amendment to the application for the permit (including an amendment as to a use or development different from the use or development mentioned in the application and as to the land to the use or development of which the application relate) as it thinks fit and such amendment may be made upon such terms as to the giving or publication of notice of the amended application (including the giving of notice to the responsible authority) or otherwise as the Tribunal thinks just in the circumstances.

(2) Where the Tribunal makes an amendment under sub-section (1) to an application for a permit it may adjourn the hearing of the appeal subject to such terms as to costs or otherwise as it thinks just in the circumstances."

22. It can be seen how similar that provision is to Clause 64 except that the specific powers in relation to giving notice, adjournments, costs and the like do not appear in Clause 64. That is because those powers are amply given in general provisions elsewhere in the VCAT Act. For example, s 130 provides that a power of the Tribunal to make an order or other decision includes a power to make it subject to conditions or further orders as the Tribunal thinks fit including adjournment, costs, notice, undertakings or any other conditions that the Tribunal considers necessary or desirable.

23. I find it ironic that Mr Tweedie should cite the case of Addicoat v Fox (No.2) 1979 VR 247 in support of his argument. He said, commencing at paragraph 20 of his written submission:-

"20. But clause 64 does not suggest that an amendment to an application which fundamentally changes the nature of the use or development for which permission is sought does not result in a "transformation" of the application, such that the application becomes, in reality, a new and different application to the one that was considered by the Responsible Authority, within the terms of the principles discussed in Addicoat v Fox (No.2) 1979 VR 247.

21. What is now sought is not "the permit applied for with modifications, but ... a different permit" (Addicoat at p 363).

22. This would, of course, not apply to circumstances where the amendment does not transform the application, for example, where what is sought is an amendment to the name of the applicant.

23. It is submitted that, if the application for amendment is permitted, this Tribunal will thereafter be dealing with a different application, and, importantly, one which has never been "received" by the responsible authority, or which they have ever had an opportunity to consider.

24. It follows that no "decision" has been made by the responsible authority with respect to this new application. There exists no right at the present time [emphasis in the original] for a review of any amended application under s 79 of the P & E Act, and no basis upon which this Tribunal could properly exercise its review jurisdiction under the VCAT Act."

24. The irony is that Clause 64, or rather its predecessor, was enacted specifically to overcome the decision in Addicoat v Fox (No. 2). The provision is not limited to amending the name of the applicant. It specifically allows an amendment to the application to include a use or development different from the use or development mentioned in the application. It even enables an amendment to the land. In allowing a different use and/or a different development it allows quite radical changes which might well amount to transformations in terms of Addicoat v Fox No. 2.

25. This does not mean that any "transformation" will be granted just because is it asked for. It is a matter of discretion for the Tribunal to decide whether any such amendment is granted and also to decide upon what terms, if any, it will be granted in relation to notice, adjournment, costs and the like. The width of this power has been recognised by the Victorian Court of Appeal in Returned Services League of Australia (Victorian Branch) Inc., Glenroy Sub-Branch v Moreland City Council and The Carlton Cricket & Football Social Club & Ors [1997] 19 AATR 107, see also Metrospan Developments Pty Ltd v Whitehorse City Council, Stafford & Ors [2000] VCAT 2068.

26. This power was and is given to the Tribunal to be used in appropriate circumstances, including in relation to s 79 review proceedings. The current proceedings may be viewed as a case in point.

27. At any event, I am far from satisfied that the proposed amendment would be a "transformation", even in terms of Addicoat v Fox (No. 2). In that case there was a transformation as dramatic as a change from a factory to a shop where there was no provision or power, in those days, in the Tribunal to deal with the situation that would then result by means of notice, adjournment, costs and the like. One of the plagues upon planning litigation in Victoria resulting from the Addicoat v Fox (No. 2) decision is that people repeatedly refer to its prohibition of transformations without regard to the legislative amendments that overcame that prohibition. Furthermore people frequently also ignore the dramatic nature of the changes required, under Addicoat v Fox (No. 2), to constitute a transformation. Very minor changes are frequently alleged to be transformations and thus prohibited as though these submissions were made on a basis of ignoring Clause 64 and its predecessors.

28. In the current case there is no such dramatic change as was discussed in Addicoat v Fox (No. 2). There is a proposal for a restaurant. There is a related matter arising in relation to it but for which permission is required namely a reduction in the parking requirement. The applicant apparently overlooked that, to have a licensed restaurant, a further permission under Clause 52.27 would also be required. The so-called "transformation" would be from a restaurant to a restaurant that could be a licensed restaurant. This is not the sort of thing described in Addicoat v Fox (No. 2) as being a transformation.

29. There is one further aspect of Mr Tweedie's argument which troubled me. If, as he argued, the application of s 4(1)(a) and 4(2)(d) VCAT Act is that a failure in terms of s 79 PE Act is "deemed" to be a refusal, what then is the purpose of s 79? If the circumstances to which s 79 apply are deemed to be a refusal, then the applicants remedy is to apply for a review of that refusal under s 77 PE Act. There will never be a s 79 review because, the moment the circumstances enabling it arise, it will become, or be deemed to be, a refusal in relation to which relief must be sought under s 77 rather than s 79.

30. Mr Tweedie cavilled a temporised about this argument to the point where I felt the need to ask him what is meant by the word "deemed". He was also equivocal on that point. I am afraid I suspect that this was because he feared that a frank admission of the true meaning of the word would be destructive of his argument. I suffer from no similar constraint. As far as I am concerned deemed, in this context, means that something is to be treated as if it were so (that is as it is deemed to be) whether that is literally true or not. It is to be treated, for all purposes, as if what is deemed is in fact true notwithstanding that it may, in fact, be untrue.

31. The PE Act predates the VCAT Act and the various forms of proceeding described as applications for review in such PE Act sections 77, 79 and 82 predate the VCAT Act, although they were previously referred to as appeals rather than applications for review. The complex set of legislation whereby the previously existing Planning Division of the Administrative Appeals Tribunal became the Planning List of VCAT as Victoria's planning tribunal may have led to some drafting inelegancies or even inconsistencies. Nevertheless, I do not think that the re-arrangements occasioned by the enacting of the VCAT legislation was intended, or had the effect of making s 79 PE Act redundant. Many many examples are to be found in the VCAT package of legislation where redundant provisions in enabling enactments like the PE Act were repealed and where other alterations or additions were made. I do not believe that, if it was intended that s 79 PE Act was to become redundant in accordance with the arguments contrived by Mr Tweedie, that it would have remained unrepealed in the PE Act.

32. Although Mr Tweedie's argument are ingenious and interesting, and whatever superficial appeal it has by being seemingly logical in some respects, I am more than satisfied that they are misconceived and wrong.

33. My opinion, in relation to the question of law referred to me, is that the Tribunal does have power under Clause 64 of Schedule 1 of the VCAT Act to amend the permit application giving rise to this proceeding, notwithstanding that it is an application for review of a failure to grant a permit under s 79 PE Act. Furthermore, it is my opinion that the Tribunal has power, pursuant to that clause, to make the amendment sought to include in the permit application reference to permission being sought under Clause 52.27 of the planning scheme for permission to use the land for the sale and consumption of liquor in the proposed restaurant. It is legally able to make such amendment. Further again, if it makes such an amendment it will have jurisdiction to determine the question of whether such planning permission under Clause 52.27 should be granted, just as it will have power to determine whether permission should be granted for the use and development of the land for the restaurant and whether permission should be granted for a reduction in the parking requirement that would otherwise apply. It is a matter of discretion to be exercised by Mr Sharkey as to whether the amendment sought should be granted. It is also a matter of discretion to be exercised by Mr Sharkey, bearing in mind the needs of procedural fairness, as to whether it is necessary or desirable in the circumstances that such amendment should be granted only on the basis of the giving of further notice or of there being an adjournment, with or without an order as to costs and the like. Whether such ancillary requirements should be imposed will, of course, depend on the circumstances including whether they are necessary or useful having regard to such notice as has already been given.