(b) Condition 1 is amended to refer to the plans that form part of this application, as follows:

Before the development and/or use 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 entitled Charsfield - 18 levels, Project No. 214172, Drawing Nos. TP 00.00, TP 00.01, TP00.02, TP00.03, TP00.04, TP00.05, TP00.06, TP 01.00, TP 01.01, TP 01.02, TP 01.03a, TP 01.03, TP 01.04, TP 01.05, TP 01.06, TP 01.07, TP 01.08, TP 01.09, TP 01.10, TP 01.23, TP 01.24, TP 01.25, TP 02.01, TP 02.02, TP 02.03, TP 02.04, TP 03.00, TP 03.01, TP 03.03, TP 03.04, TP 04.01, all dated 6 November 2015, Materials Selection undated, all prepared by Rothe Lowman Architects, and Landscape Schematic Design Landscape Plan, dated 17 August 2015, prepared by Jack Merlo Design, but modified to show:

(c) Condition 1(a) is deleted.

(d) Condition 1(d) is amended to read:

The provision of at least l77 on-site car parking spaces of which 8 are to be allocated to the offices and 2 are to be allocated for visitor and maintenance parking.

(e) A new part in Condition 1 is added as follows:

Modifications to the layout of Basement 4 contained in Section 7.5 of the statement of evidence of Mr J Walsh, dated 5 February 2016, in Application for Review P2357/2015.

Without the further written consent of the Responsible Authority, no more than one hundred and fifty eight (158) dwellings and sixty nine (69) serviced apartments may be constructed on the land.

1. The Responsible Authority is directed to amend the permit and issue an amended permit to the owner of the subject land pursuant to Section 91 of the Planning and Environment Act 1987.

Mr J Gobbo QC with Ms T Acreman of Counsel, instructed by Norton Rose Fulbright.

• Mr A Biasci, town planner.
• Mr M Sheppard, urban designer.
• Mr J Walsh, traffic engineer.

Xiaojian Ren and Qian Li, Osanan Barros, Jack Thomas Walden, Donald B Jones, Ken Chou, Malcolm Watson, Jennifer Watson, Paul Kazakis, Wen Yu, Xu Yun Xia, Xu Lan Lin, Christine Lolas, Sam Gandolfo, Adelime Chong, Janis P Rogers, Lesley Dane Hale, Sheila Robertson, Candice Yu, Andrea McPherson, Carey Forrest, Andrea Chong, Weijun Dai and Yun Pang.

Permit No. 601/2013 allows demolition, buildings and works for an 18 level building, plus 4 basement levels. It involves the retention of the front portion of Charsfield. The approved development (including amendments to the permit that have been previously approved by the Council) comprises 142 dwellings, 69 serviced apartments and 166 on-site car spaces. Condition 1(a) requires one storey to be deleted, so as to create an 18 level building. Plans have been endorsed showing this modification.

The applicant in this proceeding wishes to provide a 19th level with a maximum height of 65.00m AHD. It has prepared plans, and modified permit conditions, showing this change. It seeks approval to amend the plans and permit to provide for the modified building with 16 extra dwellings and 11 more car spaces.

Application under Section 87A of the Planning and Environment Act 1987 [PEAct] - to amend a permit.

Commercial 1 Zone [C1Z]. Design and Development Overlays DDO4-2 and DDO13 [DDO4-2] [DDO13]. Heritage Overlay (HO329).

Clause 34.01 - to develop and use of the land for accommodation (dwellings and serviced apartments) and to construct a building and construct and carry out works in the Commercial 1 Zone.

Clause 43.01 - to demolish part of the rear of the existing mansion house and all of the c.1931 buildings to the rear and construct alterations and additions and construct and carry out works, including making good the rear of the mansion house, externally paint a building and construct a fence in a Heritage Overlay.

Clause 43.02 - to construct a 19 level building plus 4 basement levels, construct and carry out works and vary side and rear setbacks in the Design and Development Overlay.

Clause 52.06 - to reduce the number of car parking spaces required for the use of the land for dwellings, office and a retail premises.

Clauses 9, 10, 11, 15, 16, 17, 18, 21, 22.04, 22.06, 22.12, 22.13, 43.01, 43.02, 52.06, 52.29, 52.34, 52.35, 52.36 and 65.

The subject land is located on the west side of St Kilda Road and extends through to Queens Lane[2]. It is 2,323 square metres in area. It contains the historic Charsfield residence. To the south, at No. 480 St Kilda Road, is an 18 storey mixed-use building. This has many levels of apartments, some of which are only oriented to the north. The upper levels of the building include penthouse apartments with expansive curved balconies. Queens Lane, to the rear of the subject land, is a one-way street servicing many properties with St Kilda Road and Queens Road frontages.

22 February 2016, on the afternoon of Day 1 of the hearing. The Tribunal was accompanied by representatives of the parties to two dwellings at No. 480 St Kilda Road - Mr Smorgon's residence and Ms Lolas' residence.

Cases Referred To - Section 87A[3]

Bestway Group Pty Ltd v Monash CC (Red Dot) [2008] VCAT 86.

King David School v Stonnington CC & Ors [2011] VCAT 520.

Makryllos v Port Phillip CC [2011] VCAT 735.

Marone Pty Ltd Joint Venture v Glen Eira CC and Ors [2011] VCAT 1650.

Maison The Development v Moreland CC [2011] VCAT 1766.

Lorne Crest Pty Ltd v Glen Eira CC [2011] VCAT 2065.

Pelican Nominees Victoria Pty Ltd v Boroondara CC [2013] VCAT 1925.

Teperman v Boroondara CC [2016] VCAT 180.

Juliano, Furletti and Scott and Ors v Melbourne CC (1999/19285).

139 Chetwynd St Pty Ltd v Melbourne CC [2004] VCAT 44.

Gatum Holdings Pty Ltd v Banyule CC [2004] VCAT 1035.

Stalt Pty Ltd v Stonnington CC & Ors [2009] VCAT 104.

Deal Corporation v Stonnington CC [2010] VCAT 982.

1. In 2014, a permit was granted for the redevelopment of No. 478 St Kilda Road. This property houses Charsfield, a residence of Italian mansion design. The permit allows some buildings on the land to be demolished while retaining the front of the mansion. It allows the construction of an 18 storey residential tower behind Charsfield, with some commercial uses.
2. That permit was issued following a successful Tribunal mediation. The permit includes Condition 1(a) requiring one level of the 19 storey building to deleted, resulting in an 18 level building.
3. Subsequently, amendments to the permit have been granted by the Port Phillip City Council including the conversion of some dwellings to serviced apartments. As it now exists, and based on endorsed plans, the permit allows four levels of basement parking, 142 dwellings, 69 serviced apartments and a total of 166 on-site car spaces.
4. The permit holder has applied to the Tribunal under Section 87A of the Planning and Environment Act 1998 [PEAct] requesting Condition 1(a) be deleted. A number of changes are shown on plans that accompany the amendment application including the design and layout of the building with the additional floor at 19 levels, a revised total of 158 dwellings (without changing the number of serviced apartments) and 11 additional car spaces.
5. The Tribunal must decide whether to grant the amendment requested to the permit. Section 87A of the Planning and Environment Act 1987 enables amendments to be made "if it is appropriate to do so". There is no more specificity in the PEAct as to relevant considerations.

IN SUMMARY, WHAT ARE THE MAIN GROUNDS RELIED UPON?

1. The Council raises no concern about the amendment request based on planning merit. It opposes the application on one ground: "The Application seeks to reintroduce a storey to the residential tower that was required to be removed as a result of a VCAT mediated outcome". Mr Nikas submitted that there is no sound reason to depart from the mediated outcome because there is no substantial change in planning policy. The application does not achieve finality. The applicant was not involved in the mediation but cannot "plead ignorance" and should have entered into the land purchase with its "eyes open, having undertaken due diligence". The Council says the application seeks to win back development height and yield, or a more favourable outcome, in a relatively short space of time.

1. Protecting the integrity of the mediated outcome should be at the forefront of the Tribunal's mind in the Council's submission, "before focussing on the merits (should it be necessary)". Mr Nikas relies on various decisions in support of this position including Kind David, Marone and Cook.[6]

1. Mr Connor, appearing for the owner of a penthouse at the top two floors of No. 480 St Kilda Road, argues that the additional building height proposed by the extra floor level "squarely undermines" the essential element of a consent outcome achieved by a Tribunal sponsored mediation.
2. He submits it would be unfair to grant the amendment. Like other residents, his client participated in the mediation in good faith and a party should be entitled to have confidence that Tribunal mediated outcomes will be observed. Mr Connor submits that, if granted, the amendment will undermine public confidence in the Tribunal's alternative dispute resolution program. Public confidence is essential to facilitate settlements.
3. Mr Connor submits that there is no material change of circumstance in respect of the land itself or the planning scheme controls that apply to it, and relevant planning policy remains substantially the same. There is no suggestion that development would fail to attract finance if it proceeded on the basis of its permitted form. The amendments are sought only a short time after the permit was issued.
4. Therefore a central issue, Mr Connor submits, is the integrity of the mediated outcome, also referring to cases such as King David and Marone. The amendment clearly seeks to win back development aspirations that were conceded or forgone in the mediated outcome. Mr Connor refers to the removal of one floor as being a benefit gained in mediation by his client and critical to the settlement of that case. It delivered the preservation of views and outlook that contribute very significantly to the amenity of his client's home. The owners of the property felt the offer to remove a floor level was a fair and appropriate concession and, in turn, they relinquished the balance of their grounds of objection, including heritage concerns. The amendment request clearly affects that benefit. The consequence will be a wall or screen to the north facing kitchen and living room areas in particular compared with city views that are retained in the mediated settlement.

1. Through Ms Lolas, many other Respondent Objectors strongly object to the amendments in terms of additional impacts on occupants of the building at No. 480 St Kilda Road.

1. Ms Lolas and other Respondent Objectors submit the amendments undermine and entirely undo the mediated outcome, with no public benefit, no benefit to occupants, and only to serve the profits of the permit holder. The residents of No. 480 St Kilda Road, some of whom have been at this address for some 14 years, have already conceded so much when settling the previous application. That is with respect of a loss of sun, warmth, daylight, privacy and outlook. Ms Lolas tendered material prepared by Mr Pang with respect to shadow impacts. She submits residents also lost property value by agreeing to the mediated outcome.
2. Ms Lolas is particularly upset by references in expert evidence and submissions to the amendment causing marginal or negligible impacts, because the residents lost so much when accepting the settlement. She also refers to "objector fatigue", the lack of any reason for the amendments other than profit, and the knowledge that the applicant would have had of the mediation. Residents opposing the amendment argue that the applicant could readily make enquiries about the mediation process.
3. Further, the amendments requested will add to issues arising in Queens Lane including traffic and delays experienced on the road network - delays that will only worsen with more development that is occurring in the area.

1. In response, Mr Gobbo QC submits the applicant purchased the subject land with a current planning permit to build an 18 level building over 4 basements. The building is approved at 62.050 metres AHD. The maximum height permissible under the relevant planning controls is 65 metres AHD, and, if the building envelope is complied with, an application is deemed to meet the design objectives, as stated in DDO4. Mr Gobbo submits that the applicant has recognised that the permissible height under both the existing and proposed planning controls is 2.95 metres more than allowed under the existing permit. Having recognised this, the applicant wishes to obtain permission to construct a building to the maximum height provided for in the design objectives.
2. Mr Gobbo submits that the merits of the proposed amendments have never been determined by the Tribunal. The fact of mediation is not determinative as to whether it is appropriate to grant the amendment request. The planning system does not create two classes of planning permit - those issued following a consent position and those following a full merits hearing. The PEAct does not make this distinction and, while the matters that may be taken into account by the Tribunal under s87A are broad, they are still confined to relevant considerations in the context of the PEAct and Scheme. Contextual factors can be relevant but not determinative. The process by which a permit was issued is one contextual factor amongst many that must be balanced together when determining if it is appropriate to grant an amendment under s87A.

1. Mr Gobbo referred to potential impacts on mediation more broadly saying that if mediated permits are never able to be amended, proponents may be unlikely to settle. In addition, the permit holder would be entitled to make a fresh permit application for a 19 level building but that would add to delays and expense for all parties compared with the current process. The s87A amendment process is suitable given the scope of amendments proposed in this case.
2. He submits that mediation does not mean finality because amendments to permits can legitimately be sought and made. A myriad of circumstances, unforeseen at mediation, may arise after the grant of a permit. In addition, the new owner is not party to the terms of settlement arising from mediation. It will not be possible for a new owner to determine the extent of concessions that were made by parties during a without prejudice mediation, why concessions were made, or the exact nature of the bargain struck. The mediation process is confidential. A range of imperatives drive parties to make concessions, not always on planning merit. Moreover, concessions are not always reflected in the permit, as private agreements may be struck.
3. Further, Mr Gobbo submits that the proposed amendments are not of such material significance to justify a departure from a previous Tribunal decision or to transform the existing permission. Having regard to the expert evidence called for the applicant, and for reasons contained in the statements of evidence and oral evidence at the hearing, the amendments are acceptable and result in a reasonably expected outcome having regard to the planning framework that applies through the Scheme. The potential for a loss of views, fortuitously held, should not constrain a development that meets the preferred built form outcome, as expressed through DDO4. This point is relevant to the wider public interest in achieving the design objectives of the Scheme.

1. The amendment application can lawfully be made, regardless of the mediation or other processes involved with the originally issued permit. The Tribunal is obliged to consider and assess the application.
2. The parties agree in this case that:

• Legislation provides a legitimate opportunity to consider amendments to permits regardless of the time that has passed since the original decision.[7]
• S87A provides a wide discretion to the decision-maker but the scope of an assessment is confined to the requested permit amendments (including plan changes). It is not to re-open an assessment of the merits of the entire development.[8]

• The application must be assessed on its planning merits.
• Other contextual considerations may also be relevant to a decision as to whether it is appropriate to amend a permit issued at the Tribunal's direction. Relevant contextual considerations will vary.[9]
• While the parties agree that the scope of the Tribunal's decision is limited to the proposed amendments, I think it is self-evident that the implications of the proposed amendments need to be understood in the context of the approved development as a whole.
• In the current case, the mediated outcome is highly relevant. The parties' positions differ about the weight to be given to the mediated agreement, the relevance or importance of a new land owner, and the extent to which the amendments represent a material, substantial and/or unreasonable departure and seek to win back conceded or foregone development aspirations. I address these matters later in these reasons.

1. Consistent with how s87A applications have been assessed in other cases, next, I consider the planning merits of the requested amendments. I then consider how the previous mediation is affected and whether that impact should be the basis for refusing this application.

IS THE AMENDMENT ACCEPTABLE ON ITS PLANNING MERITS?

1. The subject land is located on the west side of St Kilda Road, in the corridor between Domain Road and St Kilda Junction. It houses a significant heritage building that, today, abuts medium and high rise commercial and residential development including No. 480 St Kilda Road (18 storeys with a height to 70.07 AHD[10]) to the south and an eight level office building to the north.

1. The land is within the St Kilda Road Commercial Area/Employment Corridor. The area is identified for high rise development and substantial change.[11]
2. The Council's vision includes maintaining the role of St Kilda Road as the City's premier commercial strip.[12] The distinctive physical character of the boulevard is recognised through local policy[13], with Clause 21.06-7 addressing key planning challenges and establishing a future vision. None of the planning challenges relate to impacts on the private realm.

1. The vision includes encouraging the development of this area "as a preferred location for new housing at higher densities, subject to heritage and amenity considerations". Clause 21.06-7 states that local strategies will be implemented by the applicable zone (in this case, now C1Z) and by applying a Design and Development Overlay to the precinct.
2. Achievement of the vision is guided through Overlays that have been applied - particularly DDO4 (St Kilda Road, Queens Road, Kings Way and Queens Way) and DDO13 which is the Shrine Vista control.
3. DDO4 includes design objectives:
   • To provide for medium to high rise development in the areas other than Queens Road south of Arthur Street that supports the strategic role of these areas as:
     • The primary location for major office uses in the locality.
     • A location for residential uses at a higher density and larger scale than in the established residential areas of the municipality.
   • To encourage the spacing of buildings to reinforce the generous boulevard character of St Kilda Road, retain viewlines between buildings, allow penetration of sunlight into public spaces and accentuate the verticality of the built form along the boulevard.
   • To encourage building design that minimises adverse amenity impacts upon residential properties, Albert Park, the Shrine of Remembrance and other open space, streets and public places in the area as a result of overshadowing, wind tunnelling or visual bulk, within the context of the medium or higher rise built form that is encouraged in each area
4. DDO4 defines a preferred character through height and setback controls intended to meet the stated design objectives.
5. Importantly, Clause 2.0 states:

Buildings and works in the area designated in Table 1 to the schedule are considered to meet the design objectives for height if they do not exceed the maximum height specified. [Tribunal emphasis added]

1. The requested s87A amendment complies with the height at 65.00 metres AHD.
2. The same approach is taken by DDO4 with respect to nominated setbacks.

Buildings and works are considered to meet the design objectives for setbacks if:

• They are no less than the distance from boundary specified in the relevant table to this schedule.
• ....

1. DDO4-2 requires a setback of 5 metres from Queens Lane. The proposed extra floor is set back 4.5 metres from Queens Lane, to match the levels below, rather than 5 metres.

1. The schedule states that a permit may be granted to vary the setback distances specified in the table to the schedule where it can be demonstrated to the satisfaction of the Responsible Authority that the variation will:
   • Achieve the design objectives.
   • Allow the retention of a heritage place on the site, or have less impact upon the significance of a heritage place on the site or on an adjoining or nearby property.
   • Allow the retention of any other significant feature of the site such as vegetation.
   • Be consistent with the context of the surrounding urban form.
2. As I understand it, this DDO was in place at the time of the mediation. The latest change to DDO4 was via Amendment C141 on 5 June 2014, as the current Scheme identifies.

1. Proposed Amendment C107 to the Port Phillip Planning Scheme has been exhibited. Submissions have been considered by a Panel. The adopted Amendment was submitted to the Minister for Planning for approval by the planning authority in mid-2015. It can be regarded as seriously entertained.
2. The Amendment addresses built form controls for St Kilda Road North and proposes a new DDO26. The adopted Amendment does not include all of the Panel's recommendations wherein there was a debate about mandatory and discretionary heights and setbacks.
3. For the sub-precinct within which the subject land sits, objectives include:
   • To ensure the development contributes to and maintains consistent and symmetrical building heights on both sides of St Kilda Road.
4. The objectives also recognise the service role of Queens Lane.
5. There are precinct-wide objectives with respect to the private amenity and outlook:
   • To ensure spacing between towers is sufficient to:
     • Allow for cross ventilation within the building.
     • Assist in maintaining the sense of space and 'open sky views' at street level.
     • Provide opportunities for buildings to have an outlook.
   • To ensure development does not unreasonably impact on the amenity of adjoining residential areas.
   • To ensure development in the Precinct does not overshadow adjoining residential properties south/west of Kings Way.
6. There are other sub-precincts with heights to 65 and 85 metres.

1. The existing permit allows a development to a maximum height of 62.050 metres AHD. Solar panels atop the roof appear to be flush-mounted based on the endorsed plans and therefore do not significantly add to the height.
2. The proposed amendment is to a maximum of 65.00 metres AHD. The parties agree that there is no ability to include elements above that height limit by DDO4.
3. The requested additional 2.95 metres of building height is opposite levels 16, 17 and 18 in No. 480 St Kilda Road. In No. 480 St Kilda Road[14]:
   • At level 16, the floor level is 60.22 - 60.23 metres AHD, lower than the approved development.
   • At level 17, the lower penthouse floor, a north facing balcony has a floor level of 63.06 metres AHD, the dining room has a floor level of 63.17 metres AHD, and the kitchen has a floor level of 63.21 metres AHD. The additional floor would, respectively, be 1.94 metres, 1.83 metres and 1.79 metres above these finished floor levels.
   • At level 18, the upper floor of the penthouse, the views would be unaffected because the floor level of all rooms, terraces and the deck are above 65.00 metres AHD.
4. The greatest impact is, therefore, the lower floor level of the Smorgon residence, where existing windows and balconies face the subject land.
5. These are not the only windows in the penthouse, at level 17 or level 18. At level 17, there are expansive habitable room windows with commanding views to the western edge of the city and over Albert Park, to the north-east over the retained Charsfield mansion and St Kilda Road, and to the south-east. There would be no impact on level 18 windows or external spaces comprising bedrooms, terraces and an upper deck with pool.
6. There is little doubt that the approved development is a significant change and, for several units, the proposal would add to that change. There is also no disagreement between parties that views form part of the amenity of Mr & Mrs Smorgon's home.
7. The design of No. 480 St Kilda Road borrows from the subject land including by the manner in which the uppermost levels used a curved design. The layout of level 17 sees the kitchen and dining room centrally located with a northern aspect. The master bedroom, study and living room maintain outstanding views.
8. In addition, multiple smaller dwellings on lower floors rely solely on northern windows, although the proposed floor will not make an appreciable difference to outlook or views from lower level units in because the visibility of the additional floor will be restricted by the angle of view.

1. There is no express provision within DDO or local policy to protect or to share private views. Rather, DDO4 adopts an approach whereby the side setbacks are deemed to meet the Overlay's design objectives including minimising adverse amenity impacts on residential properties.
2. Mr Connor draws attention to the Guidelines for Higher Density Residential Development that refer to the importance of views[15]. I have considered the Guidelines but it is influential that DDO4 expressly addresses amenity and visual bulk by nominating preferred setbacks to achieve spacing to facilitate sufficient access to daylight, sunlight, outlook and aspect. DDO4 contextualises visual impacts in a design objective to minimise "adverse amenity impacts upon residential properties ... Within the context of the medium or higher rise built form that is encouraged in each area". I note that it does not specifically cite views, only visual bulk. This recognition differs to situations frequently encountered in, for example, coastal locations where the approach to assessing impacts on views is different to that applying here because of the manner in which DDO4 is structured.
3. It is relevant to my decision that the impact on the lower level on Mr Connor's client's property is acceptable, having regard to the planning regime that I must apply, that expansive view opportunities remain at level 17 and there are no impacts at level 18. That is not to downplay that there will be an impact. But the impact is reasonable and within the scope of managing change set by DDO4. Moreover, an outlook and some views will be retained for the affected habitable spaces given that the additional floor is between 1.79 metres and 1.94 metres higher than the finished floor levels in level 17 in No. 480 St Kilda Road.
4. It is further relevant that views currently obtained from the uppermost levels of No. 480 St Kilda Road will change over time and cannot be protected in perpetuity. Development further along the St Kilda Road corridor, to the north, will alter the visibility of the city skyline. That includes other lots towards Domain Road. In addition, Document 11 identifies various approvals and I have referred to Amendment C107 that includes allowable heights to 85 metres around Albert Road.

Impacts on privacy, solar access and daylight

1. The additional floor level will add height and therefore impact on sunlight and daylight access for apartments to the south in No. 480 St Kilda Road. I agree with Ms Lolas that the current permit has a significant impact compared with the outlook, sun and daylight currently enjoyed.
2. That these apartments borrow from properties to the north is not a benefit that could be expected to be retained into the future even with the adjacent heritage building. Properties with Heritage Overlays are not precluded from development. DDO4 makes clear that an adjacent building to 65 metres with a 4.5 metre side setback complies with the design objectives.

1. I have considered submissions and expert evidence with respect to increasing shadows including the shadow diagrams prepared by Mr Pang. There will be an additional level of shadowing, in the order of around 1 m at the measured times. There is no expert daylight analysis.
2. DDO4 has been crafted with potential off-site amenity considerations in mind. It seeks to balance its aim for substantial growth with impacts on residential amenity. It presumes that the preferred building envelope (with heights and setbacks) achieves spacing that will facilitate sufficient access to daylight, sunlight, outlook and aspect. While I appreciate concerns raised in submissions and statements of grounds that the requested amendment will worsen the outcome for existing residents, no submissions suggested that the amendment would render dwellings uninhabitable or would lower the internal amenity to an unacceptable level.
3. With respect to a loss of privacy, the subject and abutting properties are within an area earmarked for high rise residential and commercial development. Windows and people working or living in new high rise towers are expected by policy. The proposal provides the required side setback, and, even though that will bring a change this must be understood to be part and parcel of living in an area earmarked for high density residential development in the form of towers.

1. The proposal seeks approval for 11 additional car spaces to service the 16 additional dwellings. Of these dwellings, six units contain one bedroom and 10 units contain two bedrooms. There is, therefore, a reduction in car parking sought, bringing into consideration the matters in Clause 52.06-6.
2. A car parking demand assessment is presented through Mr Walsh's evidence. I do not propose to recite all of the material included in that witness statement. I accept Mr Walsh's conclusions that a reduction in car parking is justified for occupants of the development. That takes into account matters required to be addressed under Clause 52.06-6 including excellent access to public transport and the empirical assessment of parking demand.
3. Mr Walsh notes the proposal requires a waiver of three extra visitor parking spaces. He suggests that an extra office car space could be made available out of hours for residential visitors but does not consider that to be necessary. I have not decided to direct this amendment to Conditions 1(b), (c), (e) and 19 but I note this is something that could be reviewed in time by the permit holder once the development is occupied.
4. I also note Mr Walsh recommends[16] a minor change to several car spaces in basement 4, which can be addressed by permit conditions. These changes are accepted by the applicant.

1. Compared with the existing situation, the development (in its currently approved form or proposed amended form) will add to traffic in Queens Lane. This is a one-way street that services various properties fronting St Kilda Road and Queens Road. More development can be expected in the area, in line with Scheme provisions, and this will add to traffic.
2. The amount of car parking as a consequence of the amendments requested will match that originally approved (177 spaces).
3. Mr Walsh's analysis is that the amendments increase peak traffic movements by three per hour compared with the existing permit with 166 cars in four basements.
4. I have not been presented with material upon which I could conclude that the capacity of Queens Lane has been, or will be, reached. Rather, I accept Mr Walsh's evidence that the additional vehicles sought in this s87A application can be adequately accommodated. That does not ignore the volumes and delays that are present and will increase, rather, the impacts of 11 additional cars using Queens Lane (compared with the current 166 approved) will not materially affect the performance in traffic engineering terms.

1. Ms Lolas referred to a number of other matters in her submission, such as impacts arising from converting previously approved dwellings to serviced apartments and how those apartments would be accessed by cars. These matters are, in part, linked with concerns about increased traffic using Queens Lane as well as concerns about a loss of amenity and privacy for residents of No. 480 St Kilda Road. However, the amendment to allow 76 dwellings to be deleted and 69 serviced apartments added was approved by the Council (without any appeals to the Tribunal). It is not a matter that I can review in this proceeding.

1. The subject land is within DDO13 which is the Shrine Vista control. A report by Bosco Johnson, on behalf of the Shrine of Remembrance Trustees, concludes that the amendments requested will comply with DDO13. The Trustees have not objected to the s87A application.

1. The proposed amendments are consistent with the preferred future built form character, and the emerging character.

1. I note a preference in Amendment C107 for consistency in height as an urban design principle being pursued in this area. The requested amendments assist to achieve that aim.
2. I accept Mr Shepherd's and Mr Biasci's evidence that the streetscape, character and urban design outcomes are acceptable including the 0.5 m setback reduction from Queens Lane. The 4.5 m setback will match the lower levels and will not have an appreciable impact on the Lane.

1. No party suggested that the proposed amendments will adversely affect the heritage values of the retained Charsfield mansion compared with the way in which the development allowed under the current permit responds to the mansion. The amendments do not seek to undertake additional alterations or demolition to the mansion.
2. I have already recorded that no objection has been raised by the Department of Defence with respect to the retained Charsfield mansion.

SHOULD THE MEDIATED OUTCOME DETERMINE THAT THIS APPLICATION, THAT IS AN ACCEPTABLE ON ITS MERITS, BE REFUSED?

"Principles" should not be overly simplified or applied in a "blanket" way

1. Having regard to the submissions presented in this case, and Tribunal cases relied upon, it is important to appreciate that:
   • An applicant under s87A is entitled to have an amendment application considered on its merits, as the legislation provides for.
   • Blanket 'in principle' positions need to be considered with contextual circumstances that typically differ from case to case.
   • Because not all s87A applications are the same, the particular circumstances must be considered in each case when the Tribunal is deciding if it appropriate to amend a permit under s87A.
2. The following part of these reasons looks at factors influencing Tribunal decisions to grant amendments or refuse amendments. Those factors include the mediation, changed circumstances and the importance of the merits assessment to the final decision.

1. Some Respondent Objectors argue that reintroducing a storey to the approved development is contrary to established case law and, therefore, no amendments should be granted.
2. In my view, this overly simplifies the findings and contextual considerations in King David, Marone and other Tribunal decisions.

1. Neither King David nor Marone are authority for a proposition that mediated outcomes cannot be changed or are "absolute". They talk about the scope or substantial nature of changes. Indeed, King David was not concerned with mediation at all, but a very complex set of circumstances whereby the Governor in Council had directed the issue of a permit after a Ministerial call-in. Three weeks later, the same applicant sought to amend the permit seemingly to achieve a more favourable outcome than allowed in the issued permit. That is, an application to amend a permit because it did not agree with the Governor in Council's directions.
2. King David and Marone concur that:
   • A degree of caution should be exercised in making "substantive changes to permit conditions" upon which a permit was predicated (including by mediation/consent orders).
   • "Good and sound reason" or "sound justification", including a change of circumstance, are relevant to a decision that would depart from a mediated outcome at least in the immediate period following the original Tribunal decision (or mediated outcome).
3. The considerations cited in those cases and adopted as "principles" in other decisions identify the scope of amendments being sought, timing, the relevance of changed circumstances and other reasons that may make it appropriate to amend a permit.
4. The "principles" or matters that formed the basis of consideration in Marone should not be taken out of context and/or overly simplified. They should not be applied as if any mediated solution must override, and therefore prevent, an amendment requested under section 87A without proper consideration of what is different and what the planning outcome will be.
5. I am not aware of a Tribunal decision that has refused to amend a permit under s87A (or s72 PEAct) only because it would vary from a mediated outcome. When I asked about this at the hearing, none of the parties could refer me to a decision that was made for that reason alone.[17]

1. Many Tribunal decisions[18] have referred to matters raised and considered in King David and Marone. Where the amendment applications under review have failed, there were issues with respect to the planning merits without the principle of modifying or undermining a mediated outcome, solely, being determinative in the Tribunal's decision.

1. King David and Marone involved an applicant that was the same as the permit applicant in the original permit application. Requested amendments were found to be unacceptable when assessed on the planning merits. Both decisions referred to the substantial nature of some of the requested changes.[19]
2. In Marone, the applicant requesting the permit amendments was involved in the mediation. Post-mediation, he found that he could not honour the agreement for financial reasons. The mediated agreement involved deleting a floor, adding a whole new basement and other modifications. The Tribunal's decision to not allow the amendments was made for merits reasons but was also concerned with the substantial nature of the changes departing from the mediated outcome.

Reasons why amendments have been allowed including when contrary to mediated outcomes

1. In one case, the Tribunal found it appropriate to use the discretion provided by s87A because the application responded to technical problems advised by the applicant that were said to be unforeseen at the time of mediation.[20]
2. There have been other decisions where the requested amendments positively address a previous Tribunal decision.[21] There have been other decisions involving minor amendments.[22]
3. In a recent decision to which the parties referred, Teperman[23], the Tribunal found amendments to a permit, issued after successful Tribunal mediation, had no unreasonable amenity impacts. The amendments being pursued were under s72 PEAct rather than s87A, but the Tribunal found that was not a critical point with respect to the fact that the amendments related to a permit that was issued after successful mediation.
4. The Tribunal amended the permit in question contrary to the mediated outcome. While empathising with the position of "Dr and Mrs Teperman as they entered into this agreement in good faith", the Tribunal stated that agreements reached at mediation and compulsory conferences about planning disputes need to be understood in the context that circumstances can and do change. It is important that the opportunity to respond to changes is available subject to consideration of the merits and impacts of the changes.
5. In Teperman, the Tribunal concluded:

In this case, there are no unreasonable amenity impacts in terms of visual bulk, overlooking or overshadowing that arise from this proposed amendment. The concern about noise is understandable but not sufficient reason in this case to refuse this amendment. There are no other reasons from a planning merits perspective to refuse this amendment. As such, despite this amendment been clearly contrary to the agreed outcome, there are no reasons from a planning merits perspective to refuse this amendment.

1. In that case, the change in circumstances was a new purchaser merging two apartments within the completed development. In addition, and importantly, the change was determined to not have unreasonable amenity impacts.

1. Changes in circumstances can vary widely - examples to which I have referred include technical problems as well as a change in ownership where previously individual dwellings were merged. A change in ownership cannot be assumed to always be a sound reason or sufficient justification to amend a permit. Each reason for an amendment sought under s87A must be advanced and considered in light of all relevant facts and circumstances.
2. In the current case, in addition to the sale of the subject land, I consider that the Council's position is a relevant change in circumstances. The Council says that there are no reasons in terms of the planning merits to refuse the amendments. This differs from the position it adopted in the previous (mediated) proceeding where it opposed a 19 storey building on planning grounds.

1. King David and Marone commented on the broader benefits of retaining confidence in the integrity of the planning process and its decisions, resolving disputes and achieving finality. This is within the context of discouraging "repeat appeals" in which an applicant seeks to replicate submissions for a use or development that have been previously rejected or the applicant seeks to win back what it lost or conceded.
2. This is a very important point and great caution is required with respect to changes that are requested shortly following mediation/compulsory conference that undermine an agreement.
3. However, finality cannot be achieved in relation to any site - whether in the planning process, while a building is being constructed, or even after a development is completed. There cannot be 100% finality for a number of reasons. Planning permits are not required to be acted upon. In addition, the PEAct allows amendment applications to be made through s87A where the Tribunal has granted a permit, allows s72 PEAct applications to be made to the Council, and allows entirely new permit applications to be made that might replicate/be similar to an original proposal.

1. As the Tribunal commented in Teperman "....circumstances can and do change. It is important that the opportunity to respond to changes is available subject to consideration of the merits and impacts of the changes".
2. I refer to these matters in considering two arguments the applicant advances with respect a new owner post-mediation:
   • First, I agree with Mr Gobbo that a new owner cannot always know what concessions have been made by those who participated in mediation and why. The situation in Pelican Nominees Victoria Pty Ltd demonstrates that difficulties can arise when a party refuses permission for matters discussed in the mediation to later be revealed.
   • Second, I agree with Mr Gobbo that concessions may be made for personal, practical or other reasons unbeknown to a subsequent purchaser, and private agreements may exist.
3. Is it reasonable that someone is bound by a consent agreement it was not party to, even though a permit runs with the land? In absence of a Section 173 agreement under the PEAct that formalises an agreement, or another transparent legal mechanism, there is no basis in the PEAct or VCAT Act for such a consent agreement to carry overriding weight in perpetuity or to bind every new owner in this way.
4. That does not mean a Tribunal should be quick to depart from an agreement mindful those who participated in good faith achieved an outcome that they were willing to "sign off" and, as Ms Lolas emphasised, do so often having "given up" much from their perspective. What, then, is the incentive to settle, and will Tribunal decisions to amend permits affect that? Tribunal mediations regularly settle, without Section 173 agreements or private agreements that could constrain further changes. In reality, relatively few applications lodged under s87A seek to alter a mediated settlement. In the cases I have cited, substantive changes have not been approved by the Tribunal and many of the amendment applications have failed because they did not produce an acceptable planning outcome based on the applicable planning regime. Seeking to win back what was foregone was relevant, and related, in those cases.

The impact on the mediated outcome in this case

1. I next refer to the impact of the amendment application on the mediated outcome with respect to Permit 601/2013.
2. The mediation occurred in June 2014, where some matters were resolved and the parties agreed to confine the issues at the hearing to car parking. After a decision by the Council to consent to the grant of a permit, the matter was fully settled and the permit issued at the direction of the Tribunal.[24]

1. Considerations in Marone are relevant to the arguments presented by the parties. I address them next.

1. The applicant for permit in the mediated Tribunal proceeding P634/2014 was Charsfield Pty Ltd and it appears that it was the land owner. It is still the land owner.
2. The applicant, 478 St Kilda Road Land Pty Ltd, is the nominated purchaser of the subject land. A caveat on title recognises the purchase under a contract of sale dated 4 December 2014, with the caveator being Ever Bright Mal Pty Ltd. I was advised that Ever Bright Mal Pty Ltd is a related company to 478 St Kilda Road Land Pty Ltd. The material provided to me[25] shows that they have a common director and secretary. It was not contended that the individuals involved in 478 St Kilda Road Land Pty Ltd and Ever Bright Mal Pty Ltd are involved in Charsfield Pty Ltd.
3. Mr Gobbo advises that the subject land was sold in December 2014, several months after a permit issued in July 2014, and the new owner seeks to maximise the potential of the land, mindful of DDO4 and the associated Scheme provisions.
4. On its face, therefore, the amendment is being sought by a purchaser, and not someone who was a party in Tribunal proceeding P634/2014. It is now some 14 months since the transaction. In the interim, amendments to the permit were sought from the Council under s72 PEAct. Changes include reducing the number of private dwellings from 218 to 142, introducing 69 serviced apartments, and deleting 11 car spaces (177 reduced to 166). Plans were endorsed on December 2015. The change in ownership shortly after Permit 601/2013 originally issued, and modifications being pursued by the new owner since that time, are relevant to understand why the permit is sought to be further amended.
5. It is true that the applicant does not contend that the project will not be viable if the amendments are not permitted. Ms Lolas is particularly opposed to the idea that amendments might boost profit at the expense of reduced amenity for occupants of No. 480 St Kilda Road. Given that the amendments are found to be acceptable based on the planning regime that applies, any improved profitability has no bearing on my decision.

Whether the amendment makes substantive changes to the permission granted, conditions or plans that were important in achieving a mediated outcome

1. On this matter, I find that the amendments being requested to the approved development are not substantive in the context of the overall building scale and intensity, and are within the parameters set by the Scheme and expected to be achieved in this location. It does not change the permissions.

1. However:
   • It is not challenged that the deletion of one floor, achieved through mediation, was relevant to the eventual issue of the current permit.
   • The deletion of one floor was a benefit gained by occupants of No. 480 St Kilda Road. That was particularly the case for the upper levels of the development and Smorgon penthouse, for reasons that are apparent from the discussion earlier in these reasons. The benefit was 100% retention of views from the Smorgon penthouse.
   • The amendment may be said to win back development aspirations for a 19 storey building that were conceded by the land owner.
2. I have no doubt that the requested amendments were important to achieving a settlement. But, relevantly in my view, the concessions offered were not made by the applicant in this s87A proceeding.

Whether the amendment materially increases the scale or intensity of the approved development or raises new considerations that were not part of the original permit application

1. On these matters, I find as follows:
   • For reasons I have already given:
     • The additional floor and modified car parking are not substantial changes for a development of this scale and intensity in this location. The built form changes accord with the expectations, preferences, and strategic directions set by the Port Phillip Planning Scheme.
     • The proposed number of car spaces at a total of 177 will match the 177 spaces allowed by Permit 601/2013 when it was first issued.
   • Given the nature of the changes discussed earlier in these reasons, I do not consider it could be reasonably argued that the amendments transform the approval. None of the parties argued to the contrary.
   • I do not find that the amendments raise new planning considerations and they do not significantly change what has been approved.

1. Opponents to the application say that the mediated outcome should carry influential or determinative weight because there is no change in circumstance and no sound reason to depart from the mediation. They also submit that the impacts of the requested amendments are not only unacceptable on the planning merits, the amendments seek to win back development aspirations and seriously affect benefits gained by the residents of No. 480 St Kilda Road.
2. For reasons given I find the requested amendments should be allowed:

• The amendments are acceptable when assessed under the relevant policies and provisions of the Port Phillip Planning Scheme and accord with the strategic directions for the St Kilda Road corridor.
• There have been relevant changes in circumstances leading to the amendments being requested, notably that the Council considers the requested modifications are acceptable on their planning merits and that the applicant is a new owner who was not party to the mediation.
• The scope of the changes is not substantial in the planning and physical contexts that apply.
• Although the amendments depart from a mediated settlement, and are not without impacts particularly for the amenity of the penthouse at No. 480 St Kilda Road, I have not been persuaded that there is a basis in the Scheme or PEAct to require the applicant to be bound by the terms of mediation to which it was not a party or to refuse an amendment application that is acceptable on its merits and gives effect to planning policy.

1. Within the scope of matters that I can reasonably consider, I do not find it would be appropriate to refuse amendments that are acceptable from a planning outcome even though I appreciate why neighbouring residents are aggrieved by the process and will be unhappy with the outcome.
2. It is therefore appropriate to amend Permit 601/2013/A as follows:
   • The description of what the permit allows is amended to refer to a 19 level building, rather than an 18 level building.
   • Condition 1 is amended to refer to the plans that are the subject of this proceeding.
   • Condition 1(a) is deleted.
   • No change is required to Condition 1(b) or (c) for reasons I have given.
   • Condition 1(e) is amended to refer to 177 on-site car parking spaces, rather than 166, but is unaltered with respect to the allocation of visitor and maintenance parking for reasons I have given.
   • A new part is added in Condition 1 to provide for minor carpark amendments recommended by Mr Walsh in his statement of evidence dated 5 February 2016 at Section 7.5.
   • No change is required to the parking allocation within Condition 19.
   • Condition 20 is amended to refer to 158 dwellings and 69 serviced apartments rather than 142 dwellings and 69 serviced apartments.

[1] Mr K Anderson attended on Day 1 but did not present submissions. His written statement of grounds has been considered, as have those of other persons who filed statements of grounds.

There was no appearance by the Department of Defence. A letter was received from the Department dated 15 February 2016 stating that it did not propose to be joined as a party and that the amendment does not appear to affect the portion of the Charsfield building to be retained and protected under the Charge of Annuity.

[2] The land is offset from north. I have simplified directional references for ease but my assessment takes into account the correct position of the site to north.

[3] This is not a complete list of cases referred to by the parties. I have considered all of the cases tendered.

[4] This is not a complete list of cases referred to by the parties. I have considered all of the cases tendered.

[5] I have considered the submissions of all parties that appeared, all written and oral evidence, and all exhibits tendered. I do not recite or refer to all of the contents of those documents in these reasons. I have also considered statements of grounds filed by persons who indicated that they would not appear at the hearing.

1. [6] King David School v Stonnington CC & Ors [2011] VCAT 520. Marone Pty Ltd Joint Venture v Glen Eira CC and Ors [2011] VCAT 1650. Baw Baw SC v Cook [2011] 2217

[7] Maison The Development v Moreland CC [2011] VCAT 1766 at paragraph 8.

[8] Bestway Group Pty Ltd v Monash CC (Red Dot) [2008] VCAT 86.

[9] Marone at paragraph 8 citing King David and Minawood Pty Ltd v Bayside CC [2009] VCAT 440.

[10] This information was very helpfully provided by Mr Connor, based on surveyed levels to AHD.

[14] This information was very helpfully provided by Mr Connor, based on surveyed levels to AHD.

[16] Section 7.5 of the statement of evidence.

**[17] Subsequent to the hearing, I have recalled Kennington Village Pty Ltd v Greater Bendigo CC [2010] VCAT 1821 where a proponent sought to amend plans one month after their endorsement and following a consent position. The amendments failed on multiple grounds.

[18] Such as those listed in the Information table at the start of this decision. I have not included Kaazam Developments Vic Pty Ltd v Port Phillip CC [2013] VCAT 1565 and Michael Palmieri Architects v Yarra CC [2012] VCAT 53. I understand that the first was set aside (on a consent basis) by the Supreme Court as recorded in Zohab v Bayside CC [2014] VCAT 525 at paragraphs 12 and 13.**

[19] In King David, some amendments were allowed to the permit in question, but not substantive and unacceptable amendments. Marone referred to some amendments that might be acceptable.

[20] Pelican Nominees Victoria Pty Ltd v Boroondara CC [2013] VCAT 1925 at paragraph 19. This case is also interesting because the applicant refused to give consent to refer to discussions in the mediation in 2011. Hence the Tribunal could not hear submissions regarding the matters that may have been determinative in the agreement. This is a point made in the current proceeding, as I discuss in these reasons.

[21] Deal Corporation Pty Ltd v Moreland CC [2009] VCAT 1021.

[22] Some fitting the description of 'clarifying amendments' using the language in King David.

[23] Teperman v Boroondara CC [2016] VCAT 180 at paragraph 30. This decision was made by Member Naylor, who, with DP Dwyer, was the Tribunal constituted for King David School v Stonnington CC & Ors [2011] VCAT 520.

[24] This sequence of events is recorded in the Tribunal's orders dated 19 June 2014 and 11 July 2014.

[25] Document 10, tendered by Mr Connor.