I consent to the use and development of the land, as shown on the endorsed plans pursuant to Permit No TP02/672 dated 9 April 2003, being altered, provided that the use and development is in accordance with the plans prepared by Demaine Partnership Pty Ltd Project No 02020, Drawing Nos TP001, TP002, TP101, TP102, TP103, TP201, TP202, TP203 and TP301 dated 2 December 2004.

1 In March 2003 the tribunal, constituted by Senior Member Gerard Sharkey and Mr Nicholas Hadjigeorgiou (both town planning members), granted a permit pursuant to the Melbourne Planning Scheme for land at 153-155 Domain Road, South Yarra to be used and developed for a "five storey residential building exceeding 12 metres above ground level, a basement car park, and demolition of the existing single storey dwellings", subject to certain conditions. The approved development consisted of a basement car park and nine small apartments, having a height of about 19 metres above ground level. The permit was issued on 9 April 2003 and, unless extended, will expire on 9 April 2005 if the development does not commence before that date.

2 Condition 1 of the permit required amended plans to be submitted, generally in accordance with the application plans but modified in certain respects, for approval. The required modifications included a modification to implement certain recommendations of a traffic engineer in relation to the layout of the basement car park.

3 Condition 2 of the permit, which was in a common enough form, provided:

2 The use and development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

This condition limits the nature of the development to that shown on the endorsed plans. But it also allows the responsible authority to give its written consent to the development being altered from that shown on the endorsed plans. Such an interpretation is consistent with the practice in Victoria over the last 15 years or more; and it introduces necessary flexibility into the planning process.

4 It would seem that the owner of the land has now concluded that the approved development is not optimal from its perspective. This may be the result of the cost of the basement car park, or the prices expected to be obtained from small apartments, or a combination of these factors. In any event the applicant has embarked upon a process to modify the approved development so as to be able to construct three large apartments, without a basement, using a similar three dimensional envelope to that approved in relation to the nine small apartments.

5 When the tribunal granted the permit in March 2003 the subject land was affected by a Design and Development Overlay; and in particular by schedule 15 of that overlay. This schedule provided specific controls in relation to land near to the Royal Botanic Gardens, designed to protect the importance and ambience of the gardens. The controls then imposed a discretionary height limit of 12 metres. In 2004, this control was altered so that the 12 metre height limit became a mandatory height limit. A consequence of this change is that it would no longer be possible to grant a permit for the development of the land with a building having a height of more than 12 metres.

6 Plans, prepared in accordance with condition 1 of the permit, were approved and endorsed by the responsible authority on 13 January 2005. I infer that the principal reason for these plans being submitted was to enable a subsequent application to be made to amend those plans or to obtain consent for the development, as shown on the endorsed plans, to be altered.

7 Indeed, a request was made to the council as soon as 13 January 2005. The request is expressed to be a request for an amendment to the endorsed plans under section 62(3) of the Planning and Environment Act 1987. A legal opinion, prepared by Mr Jeremy Gobbo QC, was attached to the request. Mr Gobbo canvassed various means by which the applicant's preferred development could be approved, but identified the only realistic options as an amendment pursuant to section 62(3) of the Act or the grant of a consent to alterations of the endorsed plans pursuant to condition 2 of the permit. The council refused to amend the plans under section 62(3) of the Act. It is somewhat surprising that no specific request was made to the council for consent pursuant to condition 2 of the permit. However I infer from the circumstances that the council was effectively asked to give such consent; and having had an opportunity to give such consent, failed to do so. Indeed, if the council had turned its mind to it, it would not have given such consent.

8 The applicant has now applied to the tribunal under section 149(1) of the Act for the review of the decision of the council. (I take this application to embrace the failure of the council to make a decision within a reasonable time).

Relevance of section 62(3) of Act

9 The primary focus of the submission by the applicant focused upon section 62(3) of the Act. This focus required attention to be given to whether the amendment was consistent with the planning scheme currently applying to the land and whether the amendment was consistent with the permit.

10 In Cope v Hobsons Bay City Council [2004] VCAT 2487 the tribunal was required to consider an application wherein a person sought to review a council decision to refuse to make an amendment pursuant to section 62(3) of the Act. In that case the tribunal said:

But, as the applicant has conceded, there is no power for the tribunal to review a decision of a responsible authority in relation to the amendment of plans pursuant to section 62(3) of the Act.

The applicant in that case was represented by an experienced member of senior counsel. The reference to "review" in this context meant review on the merits, not judicial review under section 149B of the Act.

11 Unfortunately the Cope decision did not pass through my mind until after the hearing in the present case and it would seem that neither Mr Tweedie nor Mr Pitt were aware of it. I did contemplate seeking further submissions in relation to the availability of review of a decision pursuant to section 62(3) of the Act, but ultimately I have not regarded it as necessary in the circumstances.

12 I see no reason to depart from the conclusion expressed in Cope.[1] Certainly the words of section 149(1) of the Act are not wide enough to embrace a decision made pursuant to section 62(3). I am not aware of any other power that would permit a merits review of such a decision.

13 This leaves the application for consent pursuant to condition 2 of the permit.

14 A key principle is that the giving of such consent must not effect a transformation of the approved development. As the three dimensional form of the proposed building is similar to that of the approved building, no transformation could be said to arise in this case. Further, the deletion of the basement does not effect a transformation: compare the analysis a somewhat similar facts in Solid Investments Australia Pty Ltd v Greater Geelong City Council [2004] VCAT 2356.

15 Mr Tweedie submitted that the secondary consent condition depends upon satisfying the same criteria as those contained in section 62(3) of the Act. As a matter of principle, I cannot accept that this is necessarily so. Specific conditions which may be included in a permit are specified in section 62(2)(i) and (j) of the Act as follows:

(i) a condition that plans, drawings or other documents be prepared by the applicant and lodged with the responsible authority for approval before the use or development or a specified part of its starts; and

(j) a condition requiring changes to be made to any plan or drawing forming part of the application for the permit.

But a permit may also include any condition that the responsible authority (or, on review, the tribunal) thinks fit. Hence a permit could contain a condition that plans be prepared by the applicant and lodged with the responsible authority for approval before the development starts and also provide that the responsible authority may then consent to the development as shown in such plans being altered. In such a circumstance, a constraint will be imposed by a word such as "alter" - which would not allow plans to be transformed into some new type of development or new type of permission - but there would be no reason to automatically invoke requirements applicable to another process designed to achieve the same end.

16 Could it be said that section 62(3) of the Act in some way constrains the power to include a condition in a permit that allows development to be altered from that approved under a permit? Certainly the terms of section 62(6) constrain the power in section 62(2). But section 62(6) is cast in limiting, not empowering, terms.[2] In my opinion this is a significant difference, with the result that the empowering provision contained in section 62(3) does not limit the ability of the responsible authority to grant a permit subject to a condition that development may be changed from the plans endorsed under a permit.

17 This does not mean that any non-transforming change to the endorsed development could be approved by the responsible authority pursuant to a condition such as condition 2. Such a change must also be consistent with the permit: not because this is a requirement of section 62(3)(a)(ii), but because it would be illogical for a secondary consent to produce an outcome inconsistent with the primary consent (the permit) which created the right to give secondary consent. The same logic does not apply to the current planning scheme because an unexpired permit continues to speak even if the scheme has been changed so that such a permit can no longer be granted.

18 When it comes to determining consistency with a permit, it is necessary to consider not only the words used in the permit, but also the conditions of the permit.[3] In the present case, these conditions include condition 2. Hence this permit envisages that, once plans have been endorsed under condition 1, the development may be altered from that described on those endorsed plans if the responsible authority consents in writing. No doubt a point will be reached when the changes result in development that is outside the scope of what was contemplated by the permit and its conditions, but that point is not reached simply because the changes result in development that is not in accordance with the endorsed plans or, for that matter, that is not in accordance with plans which might be endorsed under condition 1.

19 The alterations sought in this application are consistent with the permit. Where a permit is granted for a "five storey building exceeding 12 metres above ground level, a basement car park, and demolition" it is not inconsistent with that authorisation for the demolition to occur without being followed by the construction of the building. Indeed, this is why condition 3 of the present permit was imposed: this condition requires the responsible authority to be satisfied that substantial progress has been made in obtaining the necessary building permits, and entering into a bona fide contract for the construction of the development, before the demolition occurs. Similarly it is not inconsistent with this authorisation for a five storey building to be erected without a basement car park. Where a permit is granted for more than one purpose, the applicant can act on the permission in respect of one purpose only, unless the permit as a whole indicates the contrary. In any event, and this is more relevant, the authorising words must be read in the context of the conditions, including the words of condition 2. These words provide elasticity: including the ability to allow development to be altered in a way which would authorise an inconsequential departure from some of the authorising words in circumstances where those words were not central to the permission which the planning scheme required to be obtained. In the present case the expression used in the authorising words "a basement car park" is not central to the required permission. Of course, the exercise of the power retained by the responsible authority by condition 2 would not allow it to consent to alterations that transformed the permission or transformed the authorised use or development. (Although section 62(3) is not presently relevant these comments also apply in relation to section 62(3)(a)(ii).)

20 It follows that the tribunal has a discretion as to whether or not to consent to an alteration of the development as shown on the endorsed plans so as to permit the new proposal involving three large apartments.

21 Even if the requirements in section 62(3)(a)(i) applied in relation to an application for review concerning consent under condition 2 of the permit, I would reach the same conclusion. Mr Pitt contended that the effect of the alteration to the plans was that the height of the building would be the same as that shown on the endorsed plans. There is to be a modest reduction in the setbacks, particularly from the southern boundary, which would effect some slight reduction in the bulk of the building, but the overall impression is the same. There is no doubt that the proposed building will not be consistent with the planning scheme currently applying to the land as it is to be 19 metres high in the face of a mandatory 12 metre height limit. But the test in section 62(3)(a)(i), if relevant, is that "the amendment" (to the plans) be consistent with the current planning scheme, not that the development authorised by an amended permit be so consistent. Hence if the effect of an amendment was to turn a development from one which complied with the current planning scheme provision to one which did not then that amendment would not be consistent with the current control. There are parallels in this case with the decision of the Supreme Court of New South Wales, taken in the context of restrictive covenants, in Lawton v SHEV Pty Ltd (1969) 89 WN (Part 1) NSW 635, but it is unnecessary to take this matter further.[4]

22 In order to assess the merits of the proposed change I conducted an inspection on Monday 4 April 2005 between 1:00pm and 2:00pm. I inspected the subject land from both sides of Domain Road. I viewed the surrounds from the rear of the subject land. I walked down a lane behind the businesses facing Domain Road. I made observations from the second level of the stairs serving the rear of the apartments to the west of the subject land. I walked down Millswyn Street and Millswyn Place, viewing the apartments there, the open space serving those apartments and the swimming pool. I also walked through the Botanic Gardens and made observations from various points, including Gate D, the Southern Lawn, the Eastern Lawn, Gate C, the Eucalypt Lawn, the Guilfoyle Lawn, the Australian Rainforest Walk and Gate E.

23 Although the secondary consent condition does not depend upon the criteria contained in section 62(3)(a)(i) of the Act, it is relevant (but not decisive) that the current planning control does not permit a permit to be granted for a building exceeding a height of 12 metres. In particular, this reflects a strengthened intention that the landscape qualities and amenity of the Royal Botanic Gardens be protected. In these circumstances, I would not consent to the alteration of the plans if the resulting building was likely to overshadow or visually intrude into the gardens.[5]

24 Another important factor is that consent is sought to alter development, not by increasing its height or bulk, but by maintaining the height and making modest reductions in bulk. The nature of the use and the façade treatments are largely unchanged. It would still be open for the applicant to construct the approved development; hence what is sought could be regarded as an improved outcome when compared with that development.

25 It is true that the current proposal involves the deletion of the basement car park. However this will not have any adverse visual impact. Nor will this change result in insufficient car spaces being provided. Indeed, the current plan proposes to increase the number of car spaces per dwelling (to a ratio of three per dwelling) as well as providing generous storage spaces. I conclude that the deletion of the basement does not provide any reason to refuse to consent to the alteration of the plans.

26 A consequence of providing parking at ground level, rather than at basement level, is that the northern façade of the building, at ground level, will change. However this change will not result in an unattractive façade. It is true, as Mr Tweedie pointed out, that in obtaining the initial approval for the development stress was placed upon the "active" interface between one of the apartments and the street; and, in the design of the three large apartments, there is no such "active" interface at ground level. I am far from convinced that in the context of an apartment building in this location the creation of an active interface at ground level is particularly important. Nor am I convinced that the change will make any real difference in the amount of "activity" at the ground level interface. The proposed northern façade, at ground level, is tasteful and appropriate. There is no reason to refuse consent by reference to this factor.

27 The change sought by the applicant does alter the position of light wells facing east and west and the potential implications of these changes require assessment. The applicant submitted a plan which illustrated these changes. On the eastern elevation the light well will be moved to the south, which may have a modest impact upon the rear upper window of the adjoining building. But this window will still be set back about 2 metres from the property boundary. The truth is that the amount of light available through this window will be diminished by the construction of the approved development whether the design is permitted to be changed or not. The effect of the change is not significant. In any event, the land to the east of the subject land could be thought to be ripe for redevelopment, being in a Business Zone and having high site value. Hence the change in the position of the light well is not a reason to refuse consent.

28 The change in the location of the light well facing the western boundary also moves the light well to the south. This will change the effect of the light well upon external access stairs and upon some windows facing onto those stairs. However in net terms the change will not be adverse.

29 In its decision to grant a permit for the approved development in March 2003 the tribunal observed that it had carried out an inspection from the pathway within the Botanic Gardens and was satisfied that the proposed building would not adversely impact on views from the Botanic Gardens. It observed that there would be views of the development from the garden, particularly in winter when deciduous trees have lost leaves, but the view that would be gained would not be detrimental to the gardens or the Domain Road streetscape. Having conducted my own inspection I have formed a similar conclusion. Even in winter the proposed building, whether changed from the approved plans or not, would not visually intrude into the Botanic Gardens. There are a substantial number of non-deciduous shrubs and substantial trees, with elaborate branch structures, between viewpoints in the gardens and the proposed building. Being well to the south of the gardens, there is no question of overshadowing.

30 The construction of the proposed building, whether in its approved form or as changed, will have some detrimental impact upon the occupants of apartments generally south and south-east of the subject land. Although applications to the tribunal pursuant to section 149 of the Planning and Environment Act are two party matters, I did hear from some residents of these apartments to ascertain the nature of their concerns. What can be said with certainty is that the changes now sought actually improve the position of these persons compared with the approved development. In particular, the setback of the upper levels of the proposed building from the southern boundary will be greater if the changes are approved than if they are not approved. In my opinion, the correct approach ought be to compare the building as changed with the approved building, rather than to compare it with the present situation. On the basis of such a comparison, there is no discretionary reason to refuse to consent to the change by reason of impacts upon occupants of apartments to the south or south-east.

31 As the proposed changes sought by the applicant slightly reduce the bulk of the building and increase setbacks from the southern boundary, the changes would normally be granted without argument. The real case mounted against the changes is that the planning scheme has been altered so that a permit cannot now be granted to erect a building higher than 12 metres. But the planning scheme, as amended, does not prevent consent being given to change plans for a development, already approved under a permit, which exceeds 12 metres in height. Nor does the change - or for that matter the development as changed - adversely impact upon the Royal Botanic Gardens, which seems to be the driving force for the mandatory height control.[6] Hence it is appropriate that I consent to the development being changed from that shown on the endorsed plans.

[1] The tribunal reached a similar conclusion in Interbuild Pty Ltd v Whitehorse City Council [2004] VCAT 1514 at [14].

[2] See Curry v Shire of Melton (2000) 7 VPR 109.

[3] Gant v Greater Geelong City Council (2003) 15 VPR 230.

[4] See also Saric v Hobsons Bay City Council (2000) 9 VPR 107, Beaufonte v City of Yarra (1995) 17 AATR 233 and Seventh Columbo Pty Ltd v Melbourne City Council [1998] VSC 7; (1998) 22 AATR 325. These cases highlight the distinction between the grant of a permit and the amendment of a permit and how different principles may be applicable.

[5] I note that the control does not apply after 31 August 2006. One inference that can be drawn is that it is intended to undertake further planning studies which might lead to the replacement of the somewhat blunt instrument of an areal mandatory height control with a more sophisticated control that was site specific. This observation lends support to my approach of regarding the current control as relevant, but not decisive.

[6] I acknowledge that the control is also designed to protect residential amenity, but it is evident that the primary reason for the control is to protect the Royal Botanic Gardens.