CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P303/2021
Permit Application no. WH/2020/916	
CATCHWORDS	
Medical Centre; Building and works within 4 metres of protected trees; General Residential Zone; Site at edge of residential and commercial land uses, midway along residential street; Consistency with neighbourhood and landscape characteristics; Use inconsistent with its location and fails to respond to local Non-Residential Uses policy; Relevance of Kanzburg v Bayside CC; Reimbursement of application fee pursuant to section 115CA of VCAT Act.  	

Applicant	Maple Ivory Developments Pty Ltd	

Responsible Authority	Whitehorse City Council	
Respondent	Mr N Holm	
SUBJECT LAND	62 Maple Street, Blackburn	
HEARING TYPE	Hearing	
DATE OF HEARING	25 August 2021	
DATE OF ORDER	28 January 2022	
CITATION	Maple Ivory Developments Pty Ltd v Whitehorse CC [2022] VCAT 106	

Order
Amend permit application 
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
Prepared by:	Apex Building Design Studio	
Drawing numbers:	TP0.01, TP1.01, TP1.02, TP2.01, TP3.01 & TP3.02.  All Rev A	
Dated:	13/07/2021	
No permit granted
2	In application P303/2021 the decision of the responsible authority is affirmed.
3	In planning permit application WH/2020/916 no permit is granted.
Order for reimbursement of fees
4	Pursuant to section 115B and 115CAof the Victorian Civil and Administrative Tribunal Act 1998, Whitehorse City Council is ordered to reimburse the applicant, Maple Ivory Developments Pty Ltd, the whole of the application fee paid by the applicant in the proceeding, namely $1,392.10, within 30 days of the date of this order.

Rachel Naylor
Senior Member			

Appearances
For applicant	Mr J Sumner, planning consultant of Apex Town Planning	
For responsible authority	Mr G Simkus, planning consultant of Direct Planning 	
For respondent	Mr N Holm	

Information
Land description	The site is located mid-block along Maple Street, is rectangular with a 15.24m frontage and a length of 45.06m creating a total site area of 686sqm.  
The land has a very mild fall from the frontage of 940mm along the north side boundary and 1.03m along the south side boundary.  There is a canopy tree in the front garden (tree 4 is a Camphor Laurel) and a canopy tree in the rear garden (tree 5 is an Australian native lemon-scented gum).  
The site contains a weatherboard single storey house with a driveway adjacent to its southern side.	
Description of proposal	Buildings and works to the site including an extension to the house to create a floor area of 192.85sqm for use as a medical centre containing 5 consulting rooms, a meeting room and ancillary administration and facilities.  The site will contain a disabled car space in the front setback and a rear car parking area with six spaces.  It will also have an illuminated business identification sign near the front boundary.
The medical centre use will have up to 5 practitioners with usually only 3 on the site at any one time.  The medical practitioners proposing to operate from the centre are psychologists.  The hours of operation are proposed to be 8am to 8pm Monday to Friday and 8am to 5pm on Saturday.	
Nature of proceeding	Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time.  
The Council subsequently decided that it would have refused the proposal.	
Planning scheme	Whitehorse Planning Scheme 	
Zone and overlays	General Residential Zone Schedule 1 (GRZ1)
Significant Landscape Overlay Schedule 9 (SLO9)	
Permit requirements	Clause 32.08-2  To use the land for the purpose of a medical centre because it does not meet one of the three conditions, being that it does not adjoin or have access to a road in a Transport Zone (formerly known as a Road Zone) in GRZ1.  This means the land use is described in the planning scheme as a section 2 (permit required) use.  
Clause 32.08-9  To construct a building and to construct or carry out works for this medical centre land use (as a permit is required for the land use) in GRZ1.
Clauses 32.08-14 & 52.05-2  To construct and put up for display an internally illuminated business identification sign in a category 3, high amenity area.
Clause 42.03-2  To remove a protected tree (tree 5 in this proposal) and to construct a building and construct or carry out works within 4m of a protected tree (trees 3, 4, 6 and 7 in this proposal) in SLO9. 	
Procedural matters	Following the hearing, an interim order was issued allowing the applicant to provide a further arboricultural statement and allowing the other parties to respond to that.  The order also allowed the applicant to lodge an application for fee reimbursement and for the Council to respond to that.
A final decision on this matter was delayed due to Covid-19 lockdowns and restrictions preventing a site inspection for some time.  	

Reasons
Overview
1	Maple Ivory Developments Pty Ltd (the applicant) seeks a review of Whitehorse City Council’s (the Council) failure to grant a permit within the prescribed time for the site at 62 Maple Street, Blackburn.  The proposal is for the development and use of a medical centre with tree removal and buildings and works within 4 metres of protected trees.  

2	During the Council’s processing of the application, it received 24 objections primarily from residents of Maple Street.  Mr Holm resides next door and has joined this review application as a party.  The Tribunal received four other statements of grounds from objectors residing in Maple Street who have chosen not to be a party and participate in the hearing.  
3	After lodgement of this review application, the Council decided that it would have refused to grant a planning permit for reasons that are summarised below:
•	The proposal is contrary to various local planning policies and the municipal strategic statement relating to neighbourhood and landscape character, advertising signs, tree conservation and non-residential uses in residential areas;
•	The use is inconsistent with its location and fails to respond to the non-residential uses in residential areas local policy;
•	The built form, paved surfaces, loss of a significant tree and landscaping opportunities are inconsistent with the neighbourhood character;
•	The sign is inconsistent with the residential character and fails to meet the advertising signs local policy; and 
•	The significant impacts on the health and stability of trees 3, 4, 6 and 7 fails to meet the objectives and decision guidelines of SLO9.
4	Whilst a medical centre is a non-residential use that can often be found in a residential area, the merits of the location, design and operation of the medical centre in light of the physical and planning policy contexts are influential in determining whether a permit should be granted.  Clause 71.03-2 of the planning scheme explains that:
Because a use is in Section 2 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 Municipal Planning Strategy, the Planning Policy Framework, the purpose and decision guidelines of the zone and any of the other decision guidelines in Clause 65.
5	In this case, the acceptability of the proposed location of a non-residential medical centre land use is influenced by the acceptability of the nature of the use, the built form, amenity impacts and landscape impacts.  Retaining and extending the existing house is beneficial as it can assist to maintain a residential scale and appearance to the built form.  However, the retention of the house also means the car parking needs to fit around it which, in turn, impacts on trees that are protected by SLO9 and the landscaping opportunities.  In terms of the land use, the scale of the medical centre and its hours of operation all contribute to whether a non-residential land use is acceptable in a residential area.  I am not persuaded that the context of this site, the details of the proposal and the impacts that arise in this case are acceptable.  
The relevant considerations
6	At the start of the hearing, the parties made submissions about the relevance of the Tribunal ‘red dot’ decision in Kanzburg v Bayside CC (Kanzburg).  This decision was about a proposed medical centre where the only condition specified in the relevant residential zone that was not met was the provision of car parking as planning permission was being sought in that case to reduce the standard car parking requirement.  As such, the Tribunal found the adequacy of the proposed parking provision was the only relevant consideration.  

7	In this case, the parties all agree that this proceeding should involve a consideration of the whole of the proposal rather than limiting the consideration to the one condition not met.  This condition is that the site does not adjoin or have access to a road in a Transport Zone (formerly known as a Road Zone at the time of the hearing).  
8	The applicant and the Council referred to three other Tribunal decisions where a similar approach has been taken to consider the whole of a proposal for a medical centre:
i	In Rafeek v Knox CC, two of the conditions attached to a medical centre land use were not met and the parties all agreed that these circumstances brought into consideration all aspects of the acceptability of the land use and the proposed buildings and works other than car parking provision as the standard car parking requirement was provided in the proposal.  
ii	In Kariyawasam v Boroondara CC, two of the conditions attached to a medical centre land use were not met.  There is no mention of Kanzburg in the decision, and the Tribunal considered the whole of the proposal.
iii	In Gorenstein v Boroondara CC (Gorenstein), the condition about car parking provision for a medical centre was not met (which is the same circumstance as in Kanzburg).  The decision notes the parties agreed that it was open to the Tribunal to consider the wider aspects of the acceptability of the land use and development.  
9	The Council considered the whole of the proposal during its processing of the permit application.  The applicant submits the proposed land use falls into being a section 2 permit required land use in GRZ1, which in turn means that planning permission is also required to construct a building and to construct and carry out works for the proposed land use.  In addition, there is planning permission required for tree removal and for building and works in proximity to protected trees under SLO9.  Hence, all parties agree that it is appropriate in this case to consider the merits of the whole of the proposal.  
10	Having regard to the detail of the proposal, the issues of concern raised and the relevant policies and provisions of the planning scheme, the applicant submits the three key considerations are:
•	Whether this site is an appropriate location for this proposal;
•	Whether the proposal will result in unreasonable amenity impacts; and
•	Whether there will be adequate compliance with the applicable planning controls.  
11	I would not use the turn of phrase in the last dot point.  The relevant consideration is more aptly described as whether the proposal is acceptable having regard to the relevant planning policies and provisions.  I have considered this issue as part of considering the first two key issues identified by the applicant.  I have decided that no permit should be granted having regard to these key considerations.  The reasons why I have reached this decision are explained below.  
The location of a medical centre land use in a residential area
12	The GRZ1 purpose includes allowing community uses and a limited range of non-residential uses to serve local community needs in appropriate locations.  A medical centre is a land use that can occur without needing any planning permission if it meets the following conditions:
•	The gross floor area of all buildings must not exceed 250 square metres.
•	Must not require a permit under Clause 52.06-3.
•	The site must adjoin, or have access to, a road in a Transport Zone 2 or a Transport Zone 3.
13	In this case, the site does not adjoin or have access to a road in a Transport Zone 2 or a Transport Zone 3.  
14	Maple Street itself is contained in a General Residential Zone, as are the properties along each side of the street.  This includes the existing child care centre, medical consulting rooms and car parking areas (public and private) that are located to the west (rear) and the south (side) of this site.  The extract of the zoning plan on the following page illustrates this.  

Black arrow points to the site, 
the long narrow lot to the (west) rear of the site is used for private/public car parking, 
the land generally to the south of the site is used for public car parking, then a child care centre and then medical consulting suites, and 
the PUZ2 land further to the west is a primary school with no direct access to any of the car parking areas mentioned above.

15	So, there are already some non-residential land uses on the west side of this residential street at its southern end, including at the intersection with Whitehorse Road.  At present time, the car parking generally located to the west and south of this site and the west side of other residential properties on the west side of Maple Street creates a physical edge to the extent of the non-residential activity.  
16	This means this site has one residential abuttal, which the applicant submits is a positive aspect of the location as this site only has one sensitive interface.  However, the ‘sensitivity’ is not limited to this one property as there are residential properties on the other (east) side of Maple Street as well, including between this site and Whitehorse Road.  At present, this site effectively forms the start of the residential land uses on the west side of Maple Street.  

Extract of Council’s aerial image with the site highlighted 
It identifies the existing car parking areas to the rear and south of this site and other residential properties.  The green umbrellas and light cream roofed building to the south of the car park is the child care centre and the grey roofed building further south that extends down to Whitehorse Road contains the building containing the medical consulting suites.  

17	The decision guidelines for non-residential use and development in GRZ1 include considering:
•	Whether the use or development is compatible with residential use.
•	Whether the use generally serves local community needs.
•	The scale and intensity of the use and development.
18	The Non-Residential Uses in Residential Areas local planning policy at clause 22.05 includes the following locational policies:
•	Non-residential uses are encouraged to be in convenient walking distance to shopping centres or other non-residential land uses or zones.
•	Non-residential uses are discouraged from locating in residential zones if there are suitable sites in nearby commercial centres.
•	Non-residential uses are encouraged on a corner site and abutting a Road Zone Category 1 and 2.
•	Non-residential uses are encouraged to be in a location where there is a demonstrable need for the proposed facility or service
Land use issues
19	The Council and Mr Holm are opposed to the proposed location of this medical centre.  They consider this proposal is attempting to establish itself in the heart of a residential street.  The Council calculates this site is located approximately 128 metres from a main road.  
20	The car park surrounding this site is all utilised by the medical consulting suites building and the child care centre based on Mr Holm’s submissions.  The traffic in the street is being actively managed by the Council as there is a 40km speed limit, a speed hump, a children’s crossing in school drop off and pick up times to the south of this site, and no standing restrictions out the front of this site and Mr Holm’s property.  The Council’s traffic engineers have advised these restrictions will not change as a result of this proposal.  
21	The Council and Mr Holm feel the car parking and the building and works together with the broad nature of a medical centre land use and its intensity of proposed activities will have unacceptable amenity impacts, particularly upon Mr Holm’s property.  
22	I was told during the hearing that the applicant has purchased this site with the intention of operating a psychology practice.  So, the applicant’s submission emphasises that a psychology practice is not a typical medical practice, citing differences that include:
•	Usually only three practitioners will be on site and seeing patients at any one time, but the applicant wants the flexibility for all five practitioners to be there at the same time;
•	Aiming to provide a service predominantly to the local community;
•	Sessions for 50 minutes and practitioners will work differing hours so there is likely to be little crossover of patients meaning the waiting room will not be full of patients;
•	Each practitioner is likely to see between 5 and 7 patients per day.  So, having regard to the earlier dot points, the overall number of patients per day could be in the order of 15 to 21 patients (i.e., 3 practitioners x 5 to 7 patients).  If all 5 practitioners operated throughout the day, the overall number of patients would increase to 25 to 35; 

•	Some appointments are now conducted by Telehealth, which allows for remote consultations.  The applicant explains this has proven popular and is likely to continue with an estimate of around 20% of patients utilising this service; and
•	The hours of operation are 8am to 8pm Monday to Friday and 8am to 5pm Saturday.  The applicant submits the intent of later hours is due to some appointments needing to be in the evening and on weekends.  The applicant acknowledges the hours of operation are quite long and submits the 8pm closing only needs to occur on one weekday per week.  Toward the end of the hearing, the applicant offered to accept operating hours of 8am to 7pm Monday to Thursday, 6pm finish on Friday and 5pm finish on Saturday.  The applicant submits these closing times would be similar to the child care centre that closes at 6.30pm Monday to Friday.
23	The applicant acknowledged during the hearing that a planning permit granted for a medical centre is generally generic as a ‘medical centre’ is the recognised land use term in Victoria’s planning schemes.  In other words, a planning decision to grant a permit means the decision has been made that the land is suitable for use for the range of permitted medical services identified in the medical centre land use term regardless of what type of medical service it is.  Planning permits are not generally specific to the type of medicine being practiced, e.g., a general practice, specialist, physiotherapist, chiropractor, etc.  Whilst the description of what the permit allows could be written as, for example, ‘medical centre (psychology)’, the permit is for a medical centre and the range of medical services can change over time.  
24	What planning permits for medical centres often contain in order to restrict or curtail how the medical practice operates are conditions that limit how patients are seen and how many patients are seen.  For example, in the Gorenstein decision, the Tribunal imposed conditions limiting the number of practitioners to two, specifying the hours of operation and including the following ‘restrictions on appointment times etc’:
16	Each practitioner may conduct no more than one appointment in any one hour period, to the satisfaction of the Responsible Authority.
17	Appointment times must be staggered such that each practitioner’s appointments are not commenced or completed within 20 minutes of one another, to the satisfaction of the Responsible Authority.
18	Consultations must be by appointment only, to the satisfaction of the Responsible Authority.
25	The applicant submits it would be agreeable to conditions 16 and 18 being imposed on any permit issued.  I am not persuaded that the imposition of conditions in this case will acceptably restrict the proposed intensity of the medical centre practice to the extent that it is an acceptable non-residential land use in this residential neighbourhood.  The floor plan on page 5 of these reasons illustrates that there are five consulting rooms and a meeting room, so five practitioners can be operating on the premises at any one time.  The hours of operation, even with the modifications offered by the applicant during the hearing, are expansive, including allowing for early evening use as well as all day Saturday use.  In contrast, it is not generally the case that a child care centre non-residential land use operates on a Saturday.  The telehealth appointments may reduce the number of patients attending the premises, but that is acknowledged by the applicant to be a covid-19 consequence and there is no certainty whether that situation will continue long term or at what proportion it may continue.  Furthermore, imposing a condition requiring a proportion of telehealth appointments is a level of restriction that would not normally be considered for imposition as a planning permit condition.  
26	For all of these reasons, I am not persuaded that the proposed land use is acceptable for this site.  
Building and works issues, including impacts on trees 
27	In addition to the land use concerns, the proposal involves extensions to the existing house and the creation of car parking in the front and rear of the site in order to provide the standard car parking required by the planning scheme.  This in turn requires the removal of a tree at the rear of the site and buildings and works within four metres of four other trees.  
28	The proposal includes an addition of 71.89 square metres (coloured yellow in the extract on the following page) to the existing house with a floor area of 120.95 square metres.  Originally this addition was larger and was proposed to be constructed along the common title boundary with Mr Holm’s property, but the substituted amended plans have set it back one metre as shown in the extract on the following page.  This is an acceptable design response.  The Residential Development local planning policy encourages the maintenance of the regular pattern of front and side setbacks as well as a sense of openness along the streetscape.  The Non-Residential Uses in Residential Areas local planning policy encourages existing houses to be retained and converted to suit the use.  This proposal achieves these outcomes.  

29	The courtyard adjacent to Mr Holm’s boundary is intended to be used for staff purposes only.  Mr Holm’s house has five windows facing this common title boundary including a study, family room and bedroom windows.  He is concerned about the courtyard use.  The applicant submits it is not intended to be heavily utilised.  Given the hours of operation and the number of practitioners with presumably some support staff, it would be appropriate to limit the use of the courtyard if I had been of a mind to grant a permit.  The key limitation that springs to mind would be that it is not used outside of normal business hours, e.g., 9am to 5pm.  
30	The proposal provides the seven car spaces that were required by the planning scheme for the larger addition contained in the permit application plans.  The substituted amended plans contain a smaller floor area, so the car parking requirement has been reduced to six car spaces but a total of seven spaces continue to be provided.  A disabled car space is proposed to be located in the front garden with the balance of the car spaces at the rear.  During the hearing, the applicant acknowledged that a car space could be deleted.  Later in the hearing, the applicant suggested that the staff car space on the south side at the rear could be deleted in order to move the car parking on the north side further away from Mr Holm’s property.  
31	The proposed layout of the seven car spaces necessitates the removal of one tree (tree 5) and building and works within the tree protection zones (the TPZs) of four protected trees that are adjacent to the site, being tree 2 (street tree to the east), tree 3 (tree in No. 195 leased land to the southeast) and trees 6 and 7 (in the car park to the west or rear of the site).  The extent of encroachment into the TPZs is depicted in the extract below from the applicant’s arborist report.  This extract also shows the land to the south of the driveway on the site that is owned by No. 195 Whitehorse Road (the medical suites), and which is leased by private agreement to this site.  During the hearing, I advised the parties that I am making my decision on the basis of the site area itself as this lease agreement is a private agreement that can end at some point in the future.  Furthermore, the planning application form is for this site only and does not include the leased land.  

Extract from page 9 of the Construction Impact Assessment report prepared by Urban Forestry Victoria dated 18/08/21

32	On the basis that the leased land does not form part of the planning application, the proposal illustrates a significant amount of car parking, driveway and turning areas dominating the front garden, the south side of the site and the majority of the rear of the site.  
33	Tree 4 in the front garden does not require planning permission to be removed as it is within three metres of a wall of the existing dwelling.  The applicant submits, despite this, it has chosen to retain it.  Whilst the applicant’s arborist report supported its retention and the extent of encroachment, after the hearing I issued an interim order requesting that the arborist revisit their recommendations given the works that have occurred on the site since the report was prepared.  The applicant’s arborist now considers tree 4 has declined and recommends that it not be retained.  As it is not protected by SLO9, no planning permission is required to remove it and it is up to the applicant to decide whether to remove it (regardless of this proposal).  
34	The Council’s arborist reviewed the substituted amended plans and is concerned about the extent of encroachment into the TPZs of trees 3 (31%) and 4 (46.2%).  The arborist is also concerned that the extent of encroachment into the TPZs of trees 6 (18.1%) and 7 (12.7%) to the rear cannot be made up, so the level of encroachment above 10% is not supported.

Extracts of photos from the applicant’s arborist report

35	The extent of paving in the front garden is not an acceptable design response.  A disabled space provided on the site is a preferable land use outcome given that on-street parking is restricted outside of this site and Mr Holm’s property.  However, the extent of paving in the front garden detracts from the well established garden character evident along both sides of Maple Street, particularly from this site headed in a northerly direction.  Having inspected the site and surrounds, I note there are a couple of residential examples of paving for car parking in the front setbacks, but overall, they are balanced with quite well established front gardens in the balance of these frontages and these paved areas are not dominant elements in the streetscape.  
36	Tree 5 cannot be retained with the extent of driveway and car parking proposed around it.  The applicant and Council arborists agree this tree has a good health and structure, and is of high significance.  The Council’s arborist considers it makes a significant contribution to the landscape character.  

Extract of Council photo taken in car park adjacent to the rear of the site showing tree 5 with trees 6 and 7 in the foreground (in front of the paling fence)

Extract of photo from the applicant’s arborist report
37	The Council does not support the removal of tree 5 having regard to the landscape character related objectives and decision guidelines of SLO9 and the Neighbourhood Character Study Guidelines for Garden Suburban Precinct 13 that seek to avoid the removal of large, established trees and the loss of established vegetation.  
38	The applicant submits the preferred character identified in the planning scheme focuses on trees at the front of sites, not at the side or rear of sites.  The Garden Suburban 13 preferred character statement talks about dwellings in spacious garden settings with a backdrop of large native and exotic trees.  As such, despite other sentences that talk about front and side setbacks and garden character, I cannot conclude that the reference to spacious garden settings and a backdrop of large trees does not contemplate that there are trees in the back gardens that make a landscape contribution to the neighbourhood character.  In addition, the Tree Conservation local planning policy is also relevant to this proposal.  It seeks the retention of trees that are significant for (amongst other reasons) aesthetic and neighbourhood character reasons.  
39	I agree with the applicant’s submission that the retention of tree 5 ‘is simply not possible as a part of this proposal’.  That together with the arborist report recommending its removal because of the proposed development form the substance of the applicant’s position in support of its removal.  The SLO9 decision guidelines include:
•	Whether there is a valid reason for removing the tree and whether alternative options to removal have been fully explored.
•	If retention cannot be achieved, or a tree is considered appropriate for removal, consider whether the site provides adequate space for offset planting of indigenous or native trees that can grow to a mature height similar to the mature height of the tree to be removed.  If it is not appropriate to select an indigenous or native tree species, the selected species should be drought tolerant.  
40	The only ‘valid reason’ for removing this tree is to provide the required car parking for this proposal.  Given that I have already determined there are unacceptable aspects of the proposed land use including the proposed scale and intensity of the land use with the number of practitioners, patients and hours of operation, I am not persuaded that this medical centre proposal is a valid reason in this case to support the removal of this tree.  
41	If a similar proposal for a medical centre and car parking is sought in the future on this site, it should also address the last dot quoted above.  It is not evident that this proposal has considered as part of its design whether it can provide any offset planting.  The applicant’s submission acknowledges there are limited opportunities for landscaping on this site.  Given the landscape characteristics recognised in SLO9 and the preferred neighbourhood character aspirations, development on this site needs to be balanced with landscaping opportunities.  The proposed car parking and driveways with minimal setbacks from side and rear boundaries does not achieve an acceptable balance.  The site plan of this proposal also makes it clear all planting shown on it is conceptual only and it contains no detail of whether new indigenous or native trees can be included.  
42	In regard to the extent of encroachment into the adjacent trees’ TPZs, the acceptability of this will need to be considered afresh if there is a future planning application for development on this site.  
Whether the proposal will result in unreasonable amenity impacts
43	Mr Holm is concerned about noise and fence damage from the car parking at the rear of the property.  During the hearing, the applicant suggested a higher (1.8 metres) standard paling fence could be installed, bollards could be added at the northern end of the car spaces, and the setback from Mr Holm’s boundary to the car spaces increased with greater landscaping opportunities if the southern staff car space was removed.  All of these measures would assist to minimise amenity impacts, but they should have been considered as part of the overall proposal.  Whether they are sufficient to achieve an acceptable outcome would need to be considered afresh if any future planning application for this land use is proposed on this site.   
44	Mr Holm questioned the intended use of the meeting room shown on the plans, such as whether group classes would be run.  The applicant advises that is not the intention, and it will not be used for group therapy or counselling.  If I had been of a mind to grant a permit, I would have included a condition to ensure that meeting room was not used for those purposes.  
45	Mr Holm questioned the extent of waste collection, i.e., when and how often it will occur.  The applicant acknowledges that greater waste is generated now as a result of covid-19 cleansing requirements.  It is not suggested however that a commercial waste collection is required for this particular type of medical centre.  Given the details of this proposal, I would not have imposed any particular conditions on any permit that issued about waste collection.  
46	Mr Holm submits the car parking areas should be secured at night through the inclusion of a gate or other preventative measure at the front of the site.  He also expressed concern about glare from security lighting.  These are matters that could be dealt with by permit conditions if a permit was to issue.   
Conclusion
47	This proposal has not acceptably responded to the relevant planning policies, planning provisions and controls.  A medical centre in this location is a challenge in terms of its scale and intensity in a residential street as well as in terms of its layout given the neighbourhood and landscape characteristics.  
48	For the above reasons, the decision of the Responsible Authority to refuse to grant a permit is affirmed.  
Application for fee reimbursement
49	Section 115B of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) allows for the Tribunal to make an order that a party to a proceeding reimburse another party the whole or part of any fee paid by that other party in the proceeding.  Section 115CA of the VCAT Act states that an applicant under section 79 of the Planning and Environment Act 1987 (P&E Act) is entitled to seek an order under section 115B that the Responsible Authority reimburse the whole of any fees paid.  In this case, the applicant seeks an order that the Council reimburse it for the whole of the application fee paid, being $1,392.10.  
50	Section 115CA(1) of the VCAT Act explains that this entitlement to an order for fee reimbursement is subject to subsections (2) and (3).  
51	Section 115CA(2) of the VCAT Act states that if different fees are payable under section 79 of the P&E Act depending on the election of the applicant, the entitlement for an order for reimbursement is of the amount of the lowest of those fees.  In this case, the applicant opted to pay the standard application fee rather than the major cases fee, hence it is the lowest fee.  
52	Section 115CA(3) of the VCAT Act states the entitlement for an order for reimbursement does not apply if the Council satisfies the Tribunal that there was reasonable justification for the Council to fail to grant the permit having regard to:
(a)	the nature and complexity of the permit application; and
(b)	the conduct of the applicant in relation to the permit application; and
(c)	any other matter beyond the reasonable control of the responsible authority.
53	In summary, the applicant advises:
i	The planning application was lodged on 14 September 2020;
ii	A request for further information was received on 7 October and a response was provided on 17 November;
iii	Advertising was requested on 7 December and was finalised on 8 January 2021; and
iv	There was then almost a 7 week period to the Council decision with no valid reason for such a delay, particularly given the Council advised shortly after completion of the advertising that they would not be supporting the application.  
54	In summary, the Council advises:
•	It advised the applicant as part of the request for further information that it would not support the application as it was not persuaded the proposal was acceptable when assessed against the planning scheme and the site context and did not represent a net community benefit.
•	The further information request required matters to be addressed before 23 October 2020 including payment of the correct planning application fee.
•	The applicant requested an extension of time on 8 October and on 9 October Council extended the due date to 6 November 2020.  The applicant then requested a further 4 weeks on 5 November and the Council extended the due date to 7 December 2020.
•	The response received from the applicant on 17 November 2020 included the payment of the correct application fee, but the Council submits the response was incomplete as it did not include an arborist report or an acoustic report.  The Council submits the planning officer verbally agreed that the acoustic assessment could be submitted by permit condition if a permit is granted.  There is no information provided about the date of this verbal agreement.  
•	The Council decided the 60 day clock began on 17 November as the correct application fee had been paid on/by that day.  The Council also decided to give notice of the application without an arborist report.
•	Notice of the advertising period formally ended on 8 January 2021.  The Council received 24 objections and sought consent from the Ward Council that an officer be delegated to make a decision (as an application with more than 12 objections needed to be decided at a General Council meeting).  The Appendix H document provided by the Council about this is dated 25 February 2021.  The email content includes the officer advising the ward councillor that they were aware of the applicant ‘attempting to lodge a section 79 application’, so the email wanted to know if officers could refuse the application without the application being considered at a General Council meeting.  
•	The applicant notified Council on 1 February 2021 of the section 79 application.  The Council’s submission considers this application contains an incorrect calculation of the elapsed 60 day clock because the acoustic report was never submitted, and the arborist report was not submitted to the Council before its decision date on 28 February 2021.
55	The Council’s submission is that it decided on the application within the prescribed time and provided Appendix I of its calculation of the elapsed days written over the top of the applicant’s submitted calculation in its section 79 review application (an extract of this is on the following page).  

Extract of Council’s elapsed days written over the top of the applicant’s version 

56	At no stage until now as part of this fee reimbursement application has the Council ever suggested that this section 79 review application had been lodged prematurely.  The Tribunal’s records indicate the Council sought confirmation from the Tribunal on 24 February 2021 that a section 79 application had been lodged.  No concern was expressed at that time.  The Council’s PNPE2 material lodged in response to the review application did not raise any concern that the application had been lodged prematurely.  The Council’s representative at the hearing of the merits did not raise any concern about the validity of the review application.  
57	The Council’s submission states it considers the start date for the planning application was 17 November 2020 because that was when the correct application fee was paid.  Regardless of the failure to provide acoustic or arborist reports, the Council decided to give notice of the application after 17 November.  The Council’s submission does not identify any further correspondence from it to the applicant questioning or raising concern about the failure to submit an arborist report.  Therefore, the applicant was entitled to presume that, at the point it was told to give notice of the application, the Council was satisfied with the material contained in the application, including the lack of an arborist report.  
58	The Council’s calculation of elapsed days provided in its Appendix I (extracted earlier) is clearly incorrect as it does not acknowledge the start date was 17 November 2020.  Therefore, the applicant’s dates in Steps 2, 3 and 4 appear to be correct and more than 60 days have elapsed.  In any event, I reiterate that at no stage through the Tribunal’s entire processing of the review application did the Council challenge the validity of the lodgement of the review application.  
59	The Council submits the applicant’s conduct in submitting an incomplete application added to the complexity of the application.  Given the 60 days only began from the date of the completed application fee payment and submission of the requested information (other than the acoustic and arborist reports), I am not persuaded this has added to the complexity.  I repeat that the Council decided to proceed to give notice of the application on 17 November 2020, and the Council’s submission states that it did so knowing that it had not changed its preliminary view that it would refuse the proposal.  
60	The Council submits the applicant’s conduct in not submitting the arborist and acoustic reports contributed to any delay in the Council’s processing.  This is not evident in the documentation or timeline provided by the Council.  Again, the Council decided to give notice of the application and effectively process the planning application without receipt of this material.  The Council has provided no correspondence to suggest that it followed up or questioned the lack of an arborist report.  The Council states it verbally agreed to the acoustic report not being submitted with the permit application.  
61	The Council submission identifies that it was Council’s intention to refuse the proposal as early as when it made the request for further information.  The Council’s submission makes it clear that this intended outcome never changed throughout the processing of the application.  It appears from the Council’s submission that this intention was told to the applicant in writing and verbally as the application was being processed.  There is no reason why a Council officer report assessing the merits of a proposal cannot begin whilst an application is being processed.  So, preparation of a report with intention of refusing the proposal could have begun any time after the start date of 17 November.  The outcome of this proposal from the Council’s perspective has been clear from the start.  Hence, there is nothing in the detail of the processing of this application that suggests any complexities or difficulties or any other relevant matters as to why this planning application could not have been finalised within the 60 day timeframe.  
62	For these reasons, I find the entitlement for an order for the reimbursement of the application fee does apply and accordingly I have issued the order.

Rachel Naylor
Senior Member