VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

PLANNING AND ENVIRONMENT LIST VCAT REFERENCE NO. P623/2011

APPLICANT Richmond Icon Pty Ltd

RESPONSIBLE AUTHORITY Yarra City Council

RESPONDENT Ron Pinnell, Darma Yeomans, Belinda Jayne Donaldson, Philip Connole, Jan Sturzaker, Donna Dorow, Robyn Dunphy, Anne Duffield, Andrew Duffield, Lawrence Moloney, Peter Kollatos, Stephen Claney & Renee Rixon, Jennifer Grimwade, Stephen Duffield, Allan Harris on behalf of Save Dimmeys, Connie & George Katsabis, Michael Phillipson & Carol Pelham-Thorman, Department of Transport, Peter Tratt, Andrew Tratt & Jamie Tratt, Almost French (Pysit Chhor & Kry Kouch), Mary Drost, Douglas Cousins, Lloyd Reeves, Vic Roads - Metropolitan North West Region, James Pearce, Michael Fernon

SUBJECT LAND 140-160 Swan Street RICHMOND VIC 3121

WHERE HELD 55 King Street, Melbourne

BEFORE Helen Gibson, Deputy President

HEARING TYPE Practice Day Hearing

DATE OF HEARING 8 April 2011

DATE OF ORDER 12 April 2011

CITATION

ORDER 1 I direct that no parties may rely upon heritage related matters or make

submissions about heritage at the hearing. 2 I direct that objectors who are parties to the proceeding may be permitted to

make submissions about the permit application for buildings and works,

VCAT Reference No. P623/2011 Page 2 of 6

subject to the direction of the Tribunal hearing this matter, but may not call any witnesses on this issue.

Mediation 3 The mediation tentatively scheduled in this matter on 27 April 2011 at

2.15pm is vacated.

Hearing 4 The proceeding is listed for hearing on 30 May 2011 before two members,

with a time estimate of 5 days. 5 The applicant/permit applicant has foreshadowed that it may make an

application to substitute amended plans for the permit application plans in this proceeding. It shall be sufficient compliance with clause 11.1 of Practice Note PNPE1 – General Procedures if the applicant/permit applicant by no later than 2 May 2011 gives notice of its application to amend plans in accordance with the following: (a) File with the Tribunal and serve on all parties to the proceeding, and

the responsible authority the following documents:

• A Notice of Application to Amend Plans in the form of Form A to Schedule 3 of Practice Note PNPE 1 – General Procedures with the relevant details completed;

• A statement in writing describing the changes from the previous plans;

• Advice that copies of the amended plans can be inspected during business hours at the main office of the responsible authority and on the responsible authority’s website;

• Advice that a party may obtain a copy of the amended plans upon request to the permit applicant.

(b) File and serve the specified number of clearly readable scaled copies of the amended plans upon the following persons:

• file with the Tribunal 2 copies;

• serve 4 copies on the responsible authority;

• serve 1 copy on Maddocks;

• serve 1 copy on Allan Harris on behalf of Save Dimmeys;

• serve 1 copy on Vic Roads;

• serve 1 copy on Department of Transport;

• serve 1 copy on Ron Pinnell 6 The responsible authority shall make available for inspection at its offices

copies of the amended plans filed and served herein, and the permit

VCAT Reference No. P623/2011 Page 3 of 6

applicant shall upon request provide a clearly readable scaled copy of the amended plans forthwith to any party, objector or person notified of the permit application whether that request is made orally or in writing.

7 The permit applicant shall provide the responsible authority with a copy of the plans in electronic PDF form and the responsible authority shall publish the plans on its website as soon as practicable after receiving them.

Witness statements 8 It will be sufficient compliance with the requirements of Clause 4.2 of

Practice Note PNPE-1 General Procedures for parties to file and serve the specified number of reports or statements containing the evidence in chief of any expert upon whose evidence they intend to rely at the hearing upon the following persons (as relevant):

• file with the Tribunal 2 copies;

• serve 4 copies on the responsible authority;

• serve 1 copy on Maddocks

• serve 2 copies on the applicant/permit applicant

• serve 1 copy on Allan Harris on behalf of Save Dimmeys;

• serve 1 copy on Vic Roads;

• serve 1 copy on Department of Transport;

• serve 1 copy on Ron Pinnell Expert witness reports should be filed and served 10 business days before

the date of the hearing. 9 The responsible authority shall make available for inspection at its offices

copies of all the expert reports filed and served herein, and each party shall upon request provide a copy of its reports to any other party to these proceedings forthwith whether that request is made orally or in writing.

10 Where possible, parties shall provide the responsible authority with a copy of their expert reports in PDF electronic form and the responsible authority shall publish the reports on its website as soon as practicable after receiving them.

Helen Gibson Deputy President

VCAT Reference No. P623/2011 Page 4 of 6

APPEARANCES:

For Richmond Icon Pty Ltd Mr N J Tweedie of counsel, instructed by Best Hooper

For Yarra City Council Ms Susan Brennan of counsel, instructed by Maddocks

For Ron Pinnell Mr R Pinnell, in person

For Allan Harris Mr Harris, in person and Mr Rupert Watters of counsel, by direct brief

For Planning Backlash Inc Mrs Mary Drost

For Vic Roads – Metropolitan North West Region

Mr Noel Treacy, town planner

For Andrew Duffield Mr Duffield, in person

VCAT Reference No. P623/2011 Page 5 of 6

REASONS 1 This proceeding is an application for review under section 77 of the

Planning and Environment Act 1987 against the refusal by the council to grant a permit for a development of the famous Dimmeys Store in Swan Street, Richmond. There were many objections lodged with council and numerous people have lodged statement of grounds with the Tribunal who wish to be heard at the hearing.

2 The subject land is in a Heritage Overlay but no permit is required under the Heritage Overlay because a permit for the development has been granted by Heritage Victoria.1 The Tribunal will therefore not be required to consider heritage issues and as a result I will direct that any statements of grounds, which raise heritage issues, cannot be relied upon at the hearing. People appearing at the hearing may not raise or rely upon heritage issues.

3 A permit is required for the following aspects of the proposal:

• Under clause 32.01 for use and development in the Business 1 Zone.

• Under clause 52.06 to reduce or waive car parking spaces.

• Under clause 52.07 to reduce or waive loading bay requirements.

• Under clause 52.34 to reduce or waive bicycle spaces. 4 Very recently, the applicant has identified that the subject land is more than

30 metres from the nearest Residential 1 Zone. It is 31.6 metres from the closest land in a Residential 1 Zone. As a result, there are no third party rights of review in respect of the buildings and works component of the proposal. Clause 34.01-4 requires a permit to construct a building or construct or carry out works in the Business 1 Zone. It goes on to provide:

Exemption from notice and review

An application is exempt from the notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act. This exemption does not apply to an application for a building or works within 30 metres of land (not a road) which is in a residential zone or Business 5 Zone, land used for a hospital or an education centre or land in a Public Acquisition Overlay to be acquired for a hospital or an education centre.

5 At the time when the council required notice to be given of the permit application, it was not appreciated that the land was more than 30 metres from land which is in a residential zone. The question that now arises is whether those parties to the proceeding who have raised issues relating to the building and works component of the proposal should be excluded from

1 Under clause 43.01-2 of the Yarra Planning Scheme no permit is required to develop a heritage place which is included on the Victorian Heritage Register.

VCAT Reference No. P623/2011 Page 6 of 6

raising any issues about the building and works because they lack third party review rights.

6 The applicant contended that any third parties who have lodged statements of grounds should be limited to addressing objections in relation to the car parking dispensation sought under clause 52.06, and to the use permissions sought under the Business 1 Zone. I was referred to a number of cases, such as West Valentine Pty Ltd v Stonnington CC2, and Terminals Pty Ltd v Greater Geelong CC 3, where the Tribunal held that in situations where third party notice and review rights were exempt, third parties should not be joined as parties to a proceeding on the basis that there is a very explicit scheme in the Act to limit the scope of notice and review for certain classes of permit applications.

7 In the present case, there is a mix of rights. Third parties are not excluded completely from participation in the proceeding because they have rights of review in respect of certain aspects, which require a permit, such as use and carparking. This is not a situation where I am being asked to join as parties to a proceeding people who have no third party rights of review whatsoever. I do not intend to join people as parties who have filed statements of grounds in respect of the buildings and works component of this application. The planning scheme exempts this aspect of the permit application from third party review and I consider this should be respected. In this particular case though, I propose to allow people to make submissions about the buildings and works component of the proposal in addition to other aspects they may legitimately address as parties. Under section 98(1)(c) of the Victorian Civil & Administrative Tribunal Act 1998, the Tribunal may inform itself on any matter as it sees fit. I consider it would be appropriate for the Tribunal to allow people to be heard pursuant to this provision.

8 However, because I am not prepared to join objectors as parties in respect of the buildings and works component of the application, the opportunity to be heard will not be extended to enable them to call witnesses about any matter other than matters in respect of which they are parties, such as carparking. I will leave it to the members of the Tribunal hearing this matter to manage how they allow people to be heard.

9 Given the large number of parties, I consider this is an appropriate matter in which to make representative orders regarding the circulation of amended plans (if any) and witness material.

Helen Gibson Deputy President 2 [2005] VCAT 224 3 [2005] VCAT 265