1 This matter involves a Section 149(1)(a) appeal against Council's refusal pursuant to Condition 6 of the relevant planning permit to allow the proposed amendment of the endorsed plans for a new third upper level bedroom on dwelling No. 12. Dwelling 12 is one of 15 new dwellings permitted under the relevant permit. After dealing with preliminary matters, I set out Condition 6 and the relevant statutory provisions. I then deal with some useful caselaw on the operation of Section 62(3) of the Planning and Environment Act and the practical approach the Tribunal has previously taken in comparable appeals, in assessing the merits of the proposed amendment. I finally turn to the merits of the proposed additional upper level third bedroom in question here, concluding that I am not satisfied that this amendment is inconsequential rather than being a transformation of the relevant features of the development already approved. Hence the proposed amendment is refused.

2 This matter involves an appeal under Section 149(1)(a) of the Planning and Environment Act 1987 ("Act") against Council's refusal to allow the amendment of the relevant endorsed plans for the residential development being currently constructed at 59 Cathies Lane, Wantirna South ("subject land"). That is, it is an appeal against Council's refusal of a "request to amend" pursuant to Condition 6 of the relevant planning permit, which is the standard "secondary consent" condition which essentially provides that the development cannot be changed without Council's consent.

3 This development involves 15 new dwellings and the retention of an existing dwelling, and was approved pursuant to a previous Tribunal decision in the matter Cathie Development Pty Ltd v Knox City Council P701/2002 decided by Member Osborn. I was advised that, once the resulting permit No. 2002/6370 dated 20 February 2003 ("Permit") was issued by Council, in the usual way amended plans were submitted to Council and endorsed.

4 The contentious proposed amendment is adding an upper level additional bedroom to dwelling No. 12 (with this extra bedroom having two proposed north-east facing windows). This would make dwelling No. 12 a three bedroom dwelling instead of a two bedroom dwelling. Whether dwelling No. 12 is two or three bedroom, either way all the bedrooms are upstairs. At the hearing I was shown photos by Mr Atkins which indicated that construction of the 15 dwellings is well underway, with much of the framing already up, but work on dwelling 12 was obviously delayed pending my decision here.

5 I subsequently visited the subject land, where the overall development was well advanced, but the upper level of dwelling 12 was (for obvious reasons) yet to be commenced. Your intrepid Member (just after a record 120 mm of rain had fallen in 24 hours) not only walked around the "battle of the Somme"-like mud on the building site but also scaled the top of the ground floor structure of dwelling 12 by ladder and got a good impression of what the view would be from the two windows of the contentious proposed extra bedroom (the view from the windows would be towards the north-east).

6 By way of background, the Tribunal appeal that led to the granting of the permit for the 15 dwelling development involved eight objectors and the preparation of amended plans which were substituted by the Tribunal. I was advised that these amended plans involved inter alia the removal of the contentious third bedroom on the north-east side of the upper level of dwelling No. 12. I note that dwellings 13 and 10 which lie to the east and west each have a master bedroom and two additional bedrooms, in an identical configuration as is proposed here with dwelling 12.

7 In terms of why the applicant in this earlier appeal before Member Osborn chose to remove the third bedroom from dwelling 12, Mr Gower put to me that in his view the applicant would have done so out of concern about the possible visual bulk impacts on the neighbour lying to the north, combined with the need to show some diversity in the size of the 15 dwellings being proposed. In relation to the last point, I understand that with dwelling 12 converted to a two bedroom dwelling, this was the only two bedroom dwelling in the proposal, with all other dwellings being three bedroom apart from one 4 bedroom dwelling.

8 MrAtkins advised that he was not personally involved in the earlier appeal before Member Osborn, so he could not specifically respond to these submissions by Mr Gower. However he did put some arguments to me "on the planning merits" about the implications of the contentious 3rd bedroom being removed for the earlier appeal and now proposed to be reinstated, which I shall return to later. He also tabled (and relied upon) page 2 from a document prepared for the earlier appeal by a Council consultant (Environmental Resources Management Australia dated 30 July 2002), which includes the following text.

• Deletion of one of the bedrooms to Dwelling 12.

In Council's opinion the amendments are minor in nature and do not address the grounds of the refusal.

9 Mr Atkins relied on this in submitting that Council's position here in opposing the proposed reinstatement of the 3rd bedroom for dwelling 12 lacks credibility when Council's own consultant in the earlier appeal described the deletion of this 3rd dwelling as being "minor in nature".

10 It was common ground that none of the neighbours had been notified of this Application to add the contentious third bedroom to dwelling 12.

11 In terms of the processing of the application to Council to amend dwelling 12 to add the contentious third bedroom, there was some confusion/disagreement between the parties whether this should have been treated by Council as a Section 72/73 minor amendment or as a requested amendment under Section 62(3) of the Act.

12 In addition to these two sections of the Act, the relevant permit condition under the Permit is condition 6, which provides that:

The development as shown on the endorsed plans shall not be altered without the written consent of the Responsible Authority.

13 For completeness, Section 72 of the Act provides that "The owner of land, or a person with the consent of the owner, may ask the responsible authority in writing to amend a permit which applies to the land". Section 73 then sets out the relevant criteria to be considered in terms of those matters which the decision-maker must consider before approving a minor amendment, notably that the minor amendment will not "...cause an increase in detriment to any person".

14 Section 62(3) of the Act provides as follows.

The responsible authority may approve an amendment to any plans, drawings or other documents approved under a permit if-

(a)

the amendment is consistent with-

(i)

the planning scheme currently applying to the land; and

(ii)

the permit; and

(b) the amendment will not authorise anything which would result in a breach of a registered restrictive covenant.

15 It was common ground that there are no restrictive covenants relevant here.

SHOULD COUNCIL HAVE UTILISED SECTIONS 72/73 OR SECTION 62(3)?

16 In his written submission to me, Mr Atkins submitted that the negotiations between the Applicant and Council regarding the proposed new third bedroom involved Council's reliance on Sections 72/73 in refusing to support the proposed third bedroom for dwelling 12. That is, the relevant criteria under Section 73 was relied upon by Council in refusing the proposed variation of the endorsed plans, and this was confirmed when further enquiries were made to Council in the lead up to this appeal.

17 Mr Gower rather ironically made submissions to me at the hearing in relation to the relevant tests under both Sections 72/73 but also Section 62(3). In addition, he argued that the written permit application for the new third bedroom should have expressly "put on the record" which of these two provisions the Applicant was relying on. On this last point, Mr Atkins responded that the Council should have known which is the appropriate section to apply without the Applicant effectively having to "hold the Council's hand".

18 As is often the case, I think the correct position is somewhere in the middle of the submissions made to me.

19 I agree with Mr Gower that it would have been helpful for the Applicant to have put on the record from the beginning which provisions of the Act the Applicant was expressly relying on, in seeking the amendment of the endorsed plans to allow a third bedroom for dwelling 12. Regardless of the relevant caselaw on point, the fact remains that there is more than one way this proposed amendment could have been considered by Council.

20 On the other hand, to the extent there has been differences of opinion on the role of Sections 72/73 versus Section 62(3), I consider that all parties have had the benefit of the decision of Senior Member Byard in Grosios v Monash City Council 15 VPR 65. This case similarly involved an application to amend plans that had already been endorsed earlier, but Grosios involved the Council giving notice of the proposed amendment to at least some of the affected neighbours, with objections then being received by Council. Council then advised the applicant that, pursuant to Sections 72/73 it was unable to approve the proposed amendment to the plans.

21 In summary, Senior Member Byard held that:

•

Even if Sections 72/73 had been appropriate to be applied by Council, there was no automatic obligation on Council to notify the affected neighbours of the proposed amendment, and no obligation by Council to refuse the application simply because of those objections;

•

Where the only changes proposed are to a set of plans which have already been endorsed, the appropriate means of processing these proposed changes are via Section 62(3), not Sections 72/73.

22 In light of this highly relevant precedent, I consider that the more appropriate course for Council would have been to have considered the proposed amendment here under Section 62(3) rather than Sections 72/73.

23 However, it is important to recognise that regardless of how Council dealt with the matter in the lead up to this appeal, my role here involves:

•

Section 149(1)(a) allowing me to review Council's refusal to allow the proposed "dwelling 12 third bedroom" amendment , under Condition 6 in the Permit. In other words, the Act does not provide for any direct right of appeal from a refusal under Section 62(3), but does allow the Applicant here to appeal against Council's refusal under Condition 6 of the Permit;

•

Hearing this matter "de novo" or afresh. Accordingly, while it is appropriate that I take into account the requirements of Section 62(3) as one of the factors to consider, ultimately I need to make an overall judgement in my discretion whether Council's refusal of the proposed amendment under Condition 6 was justified, as a matter of good planning.

24 As I have indicated above, while this appeal arises from Condition 6 of the Permit not Section 62(3), it is appropriate that I have regard to the requirements of Section 62(3), and any useful caselaw dealing with Section 62(3) and/or this type of proposed amendment to endorsed plans.

25 It is clear that, under Section 62(3), Council must consider whether the proposed amendment to the endorsed plans here involves any inconsistency with the Permit or with the Planning Scheme.

26 However, if a literal approach was taken to the former requirement, any proposed amendment to endorsed plans would be regarded as inconsistent simply because the proposed change is different to the existing endorsed plans.

27 To make sense of this situation, obviously the question is more one of degree.

28 The line of main authorities essentially springs from the case of Mentone Mansions v Kingston CC [2000] VCAT 1947. This case also involved proposed alterations to endorsed plans. The earlier part of the decision recognised the general line of authority (largely driven by the earlier decision of Kitsone Pty Ltd v City of Doncaster and Templestowe 1992/21753) that a secondary consent mechanism (such as condition 6 in the permit here, which effectively allows the Responsible Authority to alter the approved development) should not be used to gain primary planning permission.

29 The next part of the decision compares the possibility of inconsequential changes versus the potential transformation of the development, and makes the following helpful statement at paragraph 20.

It is considered lawful for a Responsible Authority to amend a development which already has primary permission, relying on an informal consent, provided that the amended development is not a transformation of the development originally approved, and the amendments are inconsequential having regard to the purpose of the planning controls which lead to the need for the primary permission.

30 A series of cases reinforce this distinction, with Senior Member Byard again providing useful guidance at paragraph 19 of the aforementioned Grosios decision. At paragraph 19 he states that:

That does not mean that the Responsible Authority is obliged to approve anything. The plans as modified can only be approved if they satisfy the constraints. The useful way of looking at it is to ask, if these modified plans had been proposed for approval and endorsement instead of the ones that were earlier approved and endorsed, could these new ones have been approved and endorsed accordingly? If the answer to that question is yes, then the approved plans can be amended under S 62(3).

31 In his subsequent decision of Fitzroy Rose PL v Yarra CC [2004] VCAT 155, Senior Member Byard discusses his earlier Grosios decision, and clarifies his position on the "would the amended plans have been approved in the first place" issue. At paragraph 13 in this Fitzroy Rose decision he explains that the amendment does not have to necessarily be an improvement on the original plans, stating that:

The test, in my view, (apart from the legal ones required by Section 62(3)) is the fourth item. An amendment can be made even if the result is not superior to the original. It could be of similar impact or, as in this case, not quite so good, as long as it is acceptable and appropriate in the circumstances and, as I have said, such that it might appropriately have been approved if originally proposed in that form.

32 This approach was endorsed by Senior Member Monk in the decision of Andam v Glen Eira CC [2004] VCAT 1372.

33 I note that all three of these decisions (ie Grosios, Fitzroy Rose and Andam) involved the Tribunal allowing the proposed amendment of the relevant plans.

34 Mr Atkins also encouraged me to have regard to the recent decision of Becton Corporation v Melbourne CC & Ors 14 VPR 278. This case involved a range of complex issues, including whether the Planning Minister's approval of a revised 2001 Concept Plan was consistent with the relevant permit, which inter alia envisaged that the Concept Plan would be to the satisfaction of both the Minister and the Council. The President Justice Morris, on the facts, found that the necessary consistency was lacking.

35 In summary, for our purposes here, some relevant features of this decision are that:

•

Whether or not there is the necessary consistency with the permit is to be considered objectively as a "jurisdictional fact", rather than the Council needing to merely reach this conclusion in its discretion (see paragraphs 83 to 94 of the reported decision);

•

At paragraph 90 the President gives weight to the decision by Weinberg J in Cabal v Attorney General of the Commonwealth [2001] FCA 583; (2001) 113 FCR 154, where Justice Weinberg (in considering issues of jurisdictional fact) "emphasised that the starting point is the language in which the statutory formulation is expressed".

•

Building on this point at paragraph 90, the President states that, in considering the requirements of Section 62(3), "...These requirements are essentially black or white. Either the amendment is consistent or it is not consistent; either the amendment will authorise something which would result in a breach of a registered restrictive covenant or it will not. It may be that there are fine issues involved in determining which side of the line an amendment falls. However this decision will generally not involve the complex weighing of competing elements and then making a value judgement on the matter."

36 In terms of the combined effect of the President's relevant comments set out above and the line of authority I have referred to above, my view is that:

•

As a starting point, the preferable position is for the "is the proposed amendment consistent with the planning permit?" issue to be decided by simply reviewing the proposed alterations against the bare language of the use permitted under the permit and the permit conditions;

•

However where this "level of consistency" issue is more complex in going to an assessment of the implications of the proposed variations compared to the original plans, the "would the proposed amendment have been approved if it had been originally considered" approach is still appropriate; but

•

Given the President's statement in the Becton case that the application of Section 62(3) will " generally not involve the complex weighing of competing elements and then making a value judgement on the matter", I consider that this reinforces the need for a cautious approach to assessing the merits of the proposed amendment and reaching a decision whether the proposed amendment goes beyond being "inconsequential" and starts transforming the development already approved.

37 I will now deal with the merits of the proposed amendment, in terms of the three main issues I see arising in this matter, being:

•

whether the proposed amendment is consistent with the Planning Scheme;

•

whether it is consistent with the bare text of the Permit; and

•

whether it otherwise justifies approval using the test of "would the proposed amendment have been approved if it had been originally considered".

Is Propose Amendment Consistent with Planning Scheme?

38 It was common ground that the Planning Scheme is essentially unchanged from when the earlier decision approving the 15 dwellings was made by Member Osborn.

39 Mr Gowers submitted to me during the hearing that the proposed new dwelling 12 bedroom (ie a new 3rd bedroom) would be inconsistent with the Knox Planning Scheme in that:

•

The Planning Scheme inter alia promotes diversity of housing in the municipality; whereas this proposed alteration would change the only two-bedroom dwelling in the 15 dwelling development into a 3 bedroom dwelling (in the context of the 14 other new dwellings all being three bedrooms apart from one four bedroom dwelling). In other words, the proposed alteration would drastically reduce what little diversity the whole development offers;

•

As the dwelling 12 has been subdivided and now has its own 262 square metre title, any new development (such as the proposed additional bedroom) would ordinarily require a planning permit. In other words, although the subject land is zoned Residential 1, a planning permit would still be required for the proposed new bedroom since the title for dwelling 12 is below the 300 square metre "permit trigger" under the Residential 1 zoning. In noting that a planning permit would otherwise be required for the new bedroom, Mr Gower also highlighted the fact that the neighbour to the north of dwelling 12 had been one of the objectors in the lead up to the earlier Tribunal decision that approved the whole development, and that this neighbour had not been informed of this Section 62(3) Application. Mr Gower also expressed the view that the additional bedroom may well cause visual bulk and/or privacy problems for the northern neighbours.

40 In responding to the "diversity of housing" issue, Mr Atkins argued that there was sufficient diversity (in the broad sense of the word) being provided, in that the whole development here was offering new dwellings on a much smaller block than is normally the case in Wantirna South. Mr Atkins put to me that this "diversity in the context of the general pattern of development in the suburb" line of thinking was accepted by the Tribunal in the recent decision of Golden Ridge v Whitehorse City Council 2004 VCAT 1706.

41 With respect to the "an additional bedroom would ordinarily require a planning permit" issue, Mr Atkins essentially put to me various submissions to the effect that the proposed third bedroom will be innocuous in terms of any impacts on the northern neighbours (I will return to this below).

42 In terms of my own views on these points, I consider that Mr Gowers does make out a serious case of inconsistency with the Planning Scheme. In particular, it cannot be said that a Section 62(3) process for approving the proposed new bedroom is "apples and apples" with the normal planning permit process that would otherwise apply under the Residential 1 zoning, as the latter (alone) involves formal third party rights of objection and appeal for the northern neighbours.

43 The "loss of diversity" point seems arguable both ways, but it does strike me as unusual to have an approved development of 15 new dwellings where all but two of the dwellings have three bedrooms, then the developer seeks to effectively eliminate one of the two points of difference (ie converting the two bedroom dwelling to a three bedroom one).

Is Proposed Amendment Consistent with Bare Terms of Planning Permit?

44 Reviewing the planning permit for the 15 dwellings as approved by the earlier Tribunal decision, there was no real argument put to me that there is any inconsistency between the proposed new bedroom and the bare terms of the permit, and I cannot see that any exists. The approved use at the beginning of the permit is simply "15 dwellings" (ie without specifying how many are three versus two bedrooms), and the conditions are all generic for our purposes here.

Would the proposed Third Bedroom have been Approved had it Originally been Considered by the Tribunal?

45 Mr Gower's starting point on this issue was that it is curious if not opportunistic for the developer to have voluntarily removed the contentious third bedroom as part of substituting new plans at the earlier Tribunal hearing, only to then turn around and seek Section 62(3) approval to reinstate that third bedroom at a later stage.

46 He otherwise submitted that the proposed third bedroom for dwelling 12 would not have been approved by Member Osborn, had it been before her in the earlier Tribunal decision. In this regard, Mr Gower relied on the fact that dwelling 12 without the contentious third dwelling would in his submission present significantly less visual bulk when viewed from the back yard of the northern neighbours.

47 In arguing that reinstating the contentious third bedroom would negatively "tip the balance", Mr Gower highlighted the fact that the closest point of the new bedroom would be approximately 4.9 metres from the northern boundary. Mr Gower argued that the two windows of the proposed third bedroom may well cause privacy concerns for the neighbours to the north and/or north-east of dwelling 12. He also relied on the fact that the neighbour to the north was one of the objectors to the whole 15 dwelling proposal.

48 In response, Mr Atkins:

•

Relied on the fact that dwellings 13 and 10 to the east and west already have an upper 3 bedroom layout, in an identical format as is proposed here;

•

Submitted that, in the circumstances, a 4.9 metre setback of the closest part of the proposed new bedroom to the northern boundary is quite appropriate. In particular, he argued that both any visual bulk and privacy concerns for the northern neighbour would be ameliorated by what he described as extensive landscaping at the rear of the property to the north;

•

Highlighted paragraph 20 of the earlier decision by Member Osborn, where that Member made fairly positive observations about the interface between dwellings 10, 12 and 13 with the northern neighbours and concluded that "these dwellings would not pose unreasonable visual bulk impacts";

•

Put to me that the substantial distance between the windows of the proposed new bedroom and the dwellings in the properties to the north has the practical result that any residual overlooking will be within acceptable parameters, and in any case the view is from a (less sensitive) bedroom in dwelling 12 rather than from a living area.

49 A related factor relied upon by Mr Atkins as being in favour of the proposed new bedroom is that the slope of the locality is from the northern properties down to dwelling 12, which would reduce visual bulk.

50 Having had the benefit of the submissions of both parties at the hearings, the materials provided to me and my visit out on site, ultimately I am not satisfied that the proposed third bedroom would have necessarily been approved at the earlier hearing before Member Osborn.

51 While it is true that the adjoining dwellings 13 and 10 each have three bedrooms at the upper level including a south-eastern facing bedroom with two windows facing in that direction, my impression from my view is that the amenity impacts of this situation is reduced by the fact that the views out from these two sets of windows to the neighbours to the north-east of each dwelling is substantially screened by significant landscaping at the rear of the relevant neighbouring property lying to the north-east of these windows.

52 By contrast, I am concerned that if dwelling 12 gains the proposed north-eastern upper bedroom, the view from the windows of this bedroom will be a fairly stark view of the backyard and outdoor patio area of the residential property to the north-east of dwelling 12. In other words, while I am less concerned about the potential privacy impacts on the neighbouring property directly to the north of dwelling 12 (which has extensive landscaping near its rear fence), I see a real problem with the likely privacy impacts on the neighbouring property to the north-east of dwelling 12 (which has minimal landscaping on the boundaries of its back yard).

53 In this regard, I note that I have not had the benefit of any submissions from the owner or occupier of the neighbouring property to the north-east of dwelling 12, in terms of how they might regard the proposal here.

54 I am unconvinced that the likely privacy impacts on the back yard and patio of the residential property to the north-east of dwelling 12 which I have outlined above will be sufficiently ameliorated by the distances involved, the slope of the locality, or by any positive remarks made by Member Osborn at paragraph 20 of the earlier Tribunal decision. While these remarks may have been fairly positive, the fact remains that the plans she was considering did not involve any proposed third bedroom on the upper level of dwelling 12.

CONCLUSION - IS THE PROPOSED NEW BEDROOM "INCONSEQUENTIAL" OR A TRANSFORMATION?

55 In summary, going back to the test to be applied from the Mentone Mansions case, I am not satisfied that the proposed amendment of the endorsed plans to add a third dwelling to dwelling 12 can be described as inconsequential rather than a transformation of the relevant features of the development already approved. Accordingly, following the Kitsone v Doncaster authority, I regard it as inappropriate to use a secondary consent mechanism such as Condition 6 here to allow the proposed third bedroom for dwelling 12.

56 I rely here in particular upon:

•

my concerns expressed in paragraphs 38 to 43 above about likely inconsistency with the Planning Scheme; and

•

my comments immediately above regarding the likely privacy impacts of the proposed third bedroom on the neighbouring property to the north-east of dwelling 12.

57 I also agree with Mr Gower that it is, at the least, a curious situation where a permit applicant (in substituting new plans at an appeal hearing) deletes a particular feature of a new dwelling, and then later seeks approval to reinstate that feature.

58 Accordingly, my finding is that I affirm the Council's decision pursuant to Condition 6 of the Permit to refuse to amend the endorsed plans so as to allow the proposed third bedroom for dwelling 12.