1. The Council's submission includes the following description of the Yarra River corridor:
   1. The Yarra River Corridor generally, and the section of the Yarra River corridor between Grange Road and the CBD, is a special place, with outstanding landscape, recreational and environmental values.
   2. It is a highly valued and intensively used community asset; used and enjoyed by walkers, joggers and cyclists as they travel along the Capital City Trail, and rowers and other water craft as they travel up and down the Yarra.
   3. The Capital City Trail itself links to the CBD, Main Yarra Trail, Merri Creek and Darebin Creek Trails, and the Gardiners Creek trail. It is part of an extensive walking/jogging/cycling riverside trail network that provides a link between the northern, north-eastern and south-eastern suburbs.
   4. The Yarra and its environs are a community asset used by residents of Stonnington and Melbourne. It is a community asset of metropolitan significance.
2. We agree with the Council's description.
3. The landscape, environmental and recreational significance of the Yarra River is recognised in the policies and provisions of the planning scheme. Significant changes to these policies and provisions were introduced by Amendment GC48, referred to earlier in these reasons. These included changes to clause 12 and DDO3, and the introduction of SLO1. A greater emphasis on the value of the river corridor, and on the importance of achieving built form outcomes which protect and enhance the river's context is now apparent, when compared to the planning regime in place when the Matthies case was decided. Based on its submissions and evidence, we have not been persuaded that the significance of these changes, and their implications, have been fully appreciated by the applicant.
4. Clause 12.05 of the State Planning Policy Framework (SPPF), sets out State policy for rivers. The objective of clause 12.05-1 is to protect and enhance the significant river corridors of metropolitan Melbourne. Related strategies include:

Ensure development responds to and respects the significant environmental, conservation, cultural, aesthetic, open space, recreation and tourism assets of all river corridors.

Ensure new development is sensitively designed and sited to maintain and enhance environmental assets, significant views and the landscapes along all river corridors.

1. State policy for Yarra River Protection is detailed at clause 12.05-2, which has the objective of maintaining and enhancing the natural landscape character of the Yarra River corridor in which the topography, waterway, banks and tree canopy are dominant features providing a highly valued secluded, natural environment for the enjoyment of the public. One of the related strategies is to maintain a sense of place and landscape identity by retaining a dominant and consistent tree canopy along the river corridor and within its broader landscape setting; and by ensuring that the appearance of development is subordinate to the local landscape setting, with any views filtered through vegetation. A further related strategy reads:

Ensure that development is designed and sited to maintain and enhance the river's secluded and natural environment by:

• Minimising the visual intrusion of development when viewed from major roads, bridge crossings, public open space, recreation trails and the river itself.
• Ensuring that the siting and design of buildings avoid contrast with the local natural landscape and environmental character.
• Ensuring building height is below the natural tree canopy and all development is set back a minimum of 30 metres, or greater, from the banks of the river.

1. The Municipal Strategic Statement builds upon State policy through the inclusion of objectives and strategies that address the significance of the Yarra River and its environs, and the importance of protecting its landscape and environmental values. At clause 21.07-3,[40] the key issues include protecting the environmental and landscape values of vulnerable and exposed land in private development along the edge of the Yarra River and Gardiners Creek. The objective of this clause is to protect significant trees and the landscape and environmental values of the Yarra River edge and escarpment and Gardiners Creek. Two relevant related strategies are:

1.1 Ensure development and vegetation removal in the sensitive Yarra River and Gardiners Creek environs area has minimal impact on the defined landscape and environmental values.

1.4 Minimise the visual intrusion of buildings beside waterways to protect the visual amenity of the waterway and associated trails and green spaces

1. The implementation of these policies, objectives and strategies is, in part, achieved through the application of the DDO3 and SLO1.
2. Included amongst the design objectives of DDO3, Yarra (Birrarung) River Corridor Protection, are the following:

To protect and enhance the natural landscape character of the Yarra River corridor where the waterway, its topography, adjacent public open space and a continuous corridor of vegetation and canopy trees are the dominant features.

To minimise the visual intrusion of development when viewed from the Yarra River and adjacent public open space, bicycle and shared paths and bridge crossings.

To ensure development on visible hillslopes, crests, skylines and ridgelines is subordinate to existing local vegetation and natural landscape character setting.

To ensure building elevations are presented at a variety of heights, avoid visual bulk and are stepped back from the frontage of the Yarra River and adjacent public open space.

To ensure all external colours and finishes are non-reflective and do not create contrast with the natural landscape character setting.

To ensure public views of buildings are filtered through vegetation and trees.

1. The decision guidelines to guide the exercise of discretion in the consideration of applications include:
   • The visibility of any proposed buildings and works when viewed from the Yarra River and adjacent public open space, bicycle and shared paths and bridge crossings.
   • The need for additional landscaping or new vegetation screening to filter views of proposed buildings and works.
   • Whether the location, bulk, outline and appearance of any proposed buildings or works are in keeping with or enhance the natural landscape character and appearance of the Yarra River.
2. The 'Landscape character objectives to be achieved' that form part of SLO1 address, amongst others, the siting and design of built form. Relevantly, these include:

To minimise the visual intrusion of buildings and works when viewed from the Yarra River and adjacent public open space, bicycle and shared paths and bridge crossings.

To ensure buildings are sited and designed to reduce visual contrast with the natural landscape character setting of the Yarra River corridor.

To ensure all buildings are subordinate to the existing vegetation with all views of buildings filtered through vegetation.

1. Relevant decision guidelines are:
   • Whether buildings and works will protrude above the predominant tree canopy within a given area.
   • Whether the scale, form, siting and design of new buildings, including materials, colours and finishes, are sensitively integrated with the natural setting of the river corridor.
   • Whether the existing and proposed vegetation fronting the Yarra River will filter the majority of views of the proposed development.
2. The relevant key themes emerging from the State and local planning policy frameworks are those relating to achieving sensitively-designed built form outcomes which respond to, and respect, the landscape character of the Yarra River environs. Rather than just protecting river corridors, an objective of State policy is to enhance these areas. Development should seek to integrate with the topography and should incorporate vegetation to create a well-landscaped context that will enhance the river environs. The scale, siting and design of buildings should minimise visual intrusion and protect the visual amenity of the river. The appearance of development should be subordinate to the local landscape setting, with any views filtered through vegetation. The provisions of SLO1 and DDO3 further emphasise the importance of achieving respectful developments which respond positively to the river context and which minimise visual intrusion when viewed from the river. The important role of landscaping and vegetation in achieving the desired outcomes is noted in both the design objectives and decision guidelines.
3. In its assessment of the residential aged care facility, the Tribunal in Matthies gave careful consideration to that development's impact on the Yarra River environs. It is evident from a reading of the decision, that in concluding an acceptable outcome would be achieved, the Tribunal gave weight to the particular design response (which presented as a series of building elements stepping up the slope of the site) and the incorporation of meaningful landscaping, both in-ground and in elevated planters. The Tribunal found:

[32] We agree with the evidence of Mr Biles and Mr Wyatt, which in turn reflects the written comments of Council's urban designer, that the scale and rhythm of building proposed to face Alexandra Avenue can sit comfortably in the streetscape and the Yarra River environs. The building will be seen from sections of the Yarra River environs, but it will sit below the predominant canopy of plane trees along Alexandra Avenue and will sit at a similar height and setting to other buildings already visible along this section of the river.

[39] The DDO3 objectives seek to ensure that any new building protects the dominant view lines and Yarra River environs. We find there is no evidence that the building will be excessively dominant due to its form or height. The building is a complex set of layers that we accept enables it to be read as a series of forms up the slope, with intervening landscaping that occurs both in ground and in large planter boxes in the front of the building. This means the building will be read as 2 - 3 storey form up the slope, interspersed with landscaping. This includes retention of some large trees on site, such as a Eucalypt at the rear of 141 Alexandra Ave that will then sit forward of, and soften, the new form to the rear of 52 Rockley Road. The new planting may reach the height of the building both in planter boxes and around the perimeter of the site. Planting in planter boxes has been nominated as 9 metres height to maturity, but we accept Mr Wyatt's evidence that this is a conservative estimate. In any event, the importance of the trees in planters (for example in the front of the level 3 terrace) is to soften and break up the upper level form to the south, when viewed from the Yarra environs which is down slope to the north. A view up from the public environs of the Yarra River will perceive the view of the upper levels through the planting, with the planting gaining a perspective of dominance being well forward of the new upper level building form. When viewed up from the Yarra River corridor, we are comfortable that the building will sit in a landscape context that is similar to its neighbours of large buildings with some large canopy trees.

[40] We also note from our inspection that the existing building on the site that sits at RL32 on the upper plateau does not appear apparently stark or overwhelming in the Yarra River environs. This is despite a current lack of landscaping in front of the dwelling. The new buildings will sit forward of the existing dwelling on site, but will not exceed this existing relative building height. It will exceed the proposed DDO3 height limits, but mostly due to the relative fall of the land as the building comes forward and the slope drops away, creating a relative increase in height from natural ground level. In turn, a new podium of vegetation is proposed so that the more prominent form retains a vegetated setting.

[41] The view of large forms, staggering up the slope is consistent with the existing built form when viewed from the Yarra River environs. The view will be somewhat more intensely urban, but we do not see it in anyway detracts from the river environs in this section of the Yarra River that is already distinctly urban. We find that what will be seen will be a building in context of various building forms sitting on the slope. It will not be distinctly higher or excessively protrude above other forms on the escarpment.

1. While the amended proposal retains the stepped profile which follows the fall of the land, there are number of changes which substantially erode key elements which contributed to the aged care development presenting as an acceptable built form outcome in its physical and planning context.
2. The partial infilling of the four 'fingers' proximate to the Alexandra Avenue frontage has a notable effect of reducing the modulation of the elevation as it presents to the street and river corridor, and increasing the building mass. The inclusion of these additional building elements accentuates the width of the development across the frontage and diminishes the effectiveness of the recesses in presenting an articulated elevation. We agree with the Council that, as a consequence, the development will present to Alexandra Avenue as two wide and bulky buildings.
3. Above this, a significant change is evident at Level 04 (Level L3 on the endorsed plans). Here, a slender diagonal element oriented north-west/ south-east and having a width of approximately 10 metres is replaced with partially staggered form in excess of 20 metres wide and positioned largely perpendicular to the frontage. A related change is the replacement of adjoining communal landscaped terraces with two terraces associated with dwellings. The extent of landscaping supported by these elements is notably reduced. The roof of the former diagonal element, which was entirely devoted to an outdoor rooftop communal open space area, and which was landscaped, has been replaced by the roof of the dwellings below.
4. In the extract of Matthies provided above, the Tribunal's reference to the importance of the tree planting (in planters) on the terrace level will have been noted. It was a consideration of some influence in the Tribunal's conclusion that the landscaping would soften and break up the upper level form from the south, when viewed from the river environs. Also relevant to the Tribunal's assessment was that, in the view up from the public environs of the river, the upper levels would be perceived through planting, with this planting having a perspective of dominance as it was well forward of the upper level building form. The Tribunal concluded that the building would sit in a landscape context similar to its neighbours.
5. The amended proposal includes the loss of this significant upper level planting. The landscape plan shows no planting in the Level 4 terraces, nor is there a landscaped rooftop area. The 'tiered landscaping' which was an integral element of the approved scheme has been removed. The consequence of this is that the upper levels will have a stark prominence when viewed from the Yarra River environs. When this modification is viewed in combination with the built form changes that include the infilling of voids and reduction of setbacks from Alexandra Avenue, the resultant development will have an appearance which does not respond acceptably to its context, having regard to the applicable policies and provisions of the planning scheme.
6. The proposed tree planting proximate to the Alexandra Avenue frontage will have some screening effect but this will diminish as the vantage point moves further away from the site. Much of the development will rise above this planting, even when it has reached its mature height. From the river and its environs, particularly from the opposite side, the development will be highly visible. Having regard to the topography, the absence of street trees immediately adjacent to the review site, the nature of the proposed planting and the height of the development, the built form will not sit below the predominant tree canopy height. It will present as a large, austere form sitting awkwardly and unsympathetically within its context. It fails to provide an articulated built form set within the landscape and does not achieve the objectives of the SLO1. Specifically, but not exclusively, it will not minimise the visual intrusion of buildings when viewed from the river environs, and does not ensure that views of the buildings will be filtered through vegetation.
7. These findings are a sufficient basis for us to conclude that the proposed development will not represent an acceptable planning outcome when considered within the current framework of policies and provisions within the planning scheme which address the Yarra River corridor. There is no utility in us proceeding to consider the changes to the interface with the adjoining properties or the consequential amenity impacts. We will, therefore, not do so. This is not to be taken as any indication that the development's relationship with its neighbours is acceptable. That assessment has not been undertaken.

1. Application P2850/2017 is an application under section 81(1) of the Planning and Environment Act 1987 to review the council's refusal to extend the time for completion of the development under the permit until 6 July 2020.
2. Whilst our decision in respect of application P2380/2017 is to refuse to amend the permit, we consider that the permit should be extended to allow the permitted development to be completed.
3. Development has started under the permit with the demolition of buildings pursuant to the permit. The site has been cleared. In its present state, it is a jarring intrusion in the Yarra River corridor setting.
4. There was no strong opposition to an extension of the permit. There appeared to be a general acceptance by parties to the amendment application that the permit, which was granted by the Tribunal in Matthies, was acceptable and certainly to be preferred to the proposed amended permit.
5. In deciding whether to extend a permit, the Tribunal will usually have regard regard to the Kantor[41] principles. They are:
   • whether there has been a change in planning policy;
   • whether the landowner is seeking to warehouse the permit;
   • intervening circumstances which bear on the grant or refusal of the extension requests;
   • the total elapsed time;
   • whether the time limit originally imposed was adequate;
   • the economic burden imposed on the landowner by the permit; and
   • the probability of a permit issuing should a fresh application be made.
6. In this case, we make the following comments with respect to each of these points:
   • There has been a change in planning policy and controls with respect to height and regarding the Yarra River corridor.
   • The applicant might be said to be warehousing the permit having regard to the sale of the land by the original permit holder to the current applicant; the applicant's attempts to amend the permit; and the comments by Mr Canavan at the hearing that if the amendment was refused, the applicant would seek a joint venture partner to carry out the development of the aged care facility.
   • These intervening circumstances have resulted in the permit being activated by demolition of the heritage buildings on the site pursuant to the permit and the site's clearance, but no further work on construction of buildings and works commencing. However, it is clear that if development under the permit is to proceed, an extension is required.
   • The total elapsed time since the permit was granted in 2014 is four years. This is not an excessively long time having regard to the scale of the proposal.
   • The original time limit was not unreasonable, but a further extension of time for completion would not be unreasonable either.
   • We do not consider that the economic burden imposed on the landowner by the permit has been unusual for a development of this type or scale. This is not a relevant factor.
   • As our previous discussions relating to the amendment of the permit have disclosed, should a fresh application be made, an identical permit could not be granted, especially given the mandatory height controls now in the planning scheme. However, we consider that the exceedances of the changes in the planning scheme are not so great as to render the proposal under the permit unacceptable. We consider that the Tribunal's reasons in Matthies for allowing heights greater than the then discretionary limits are still justifiable and that the permit still represents an acceptable outcome.
7. In the interests of seeing this very large, prominent and steep site developed sooner rather than later, we consider that a reasonable time should be given to allow the development for an aged care facility to be completed in accordance with the permit. We are therefore prepared to extend the time for completion for a period of three years until 6 July 2021. In all the circumstances, we consider this is a more realistic time frame for completion than 6 July 2020, which is what was applied for.

1. Our overall conclusion is that the amendment application should be refused for three separate reasons. The permit should not be amended, although we consider that time for completion of the project approved under the permit should be extended until 6 July 2021.
2. In summary, our reasons for refusing to amend the permit are as follows:
   • Cumulatively, we find the proposed changes to the permit will transform it into something different to what was originally granted. Accordingly, we find that the proposed changes cannot be made by way of an amendment to the permit under section 87A.
   • Certain aspects of the proposed development are prohibited and will exceed the height of the development for which there is an accrued right under the permit pursuant to section 28(2) of the Interpretation of Legislation Act 1984.
   • The merits of the proposed development will not represent an acceptable planning outcome when considered within the current framework of policies and provisions within the planning scheme which address the Yarra River corridor.

[1] [2010] VCAT 104

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] The permit was issued on 6 January 2014. It was amended on 30 March 2015 by amending conditions 5 and 6 to allow for staged submission of additional plans for endorsement.

[4] [2013] VCAT 2011

[5] Pursuant to clause 3 of schedule 5 to the GRZ5

[6] Pursuant to DDO3, and to the part of the site within the DDO3b area

[7] Pursuant to DDO3, and to the part of the site within the DDO3c area

[8] The transitional provisions are complex. Mr Tweedie, on behalf of the responsible authority, addressed them in detail. We are satisfied they are not applicable therefore we have not further dealt with them.

(1) In addition to the powers conferred by section 87, the Tribunal may cancel or amend a permit that has been issued at its direction if it considers it appropriate to do so.

_(2) The Tribunal may only cancel or amend a permit under this section at the request of - _

(a) the owner or occupier of the land concerned; or

(b) any person who is entitled to use or develop the land concerned

[10] As described by the Supreme Court in Addicoat v Fox (No 2) 1979 [VR 347]

[11] [2014] VCAT 343. See also Australian Slate-Crete Supplies v Casey CC [2008] VCAT 6 at [29]

[12] [2008] VCAT 860

[13] [2012] VCAT 152

[14] [2012] VCAT 22

[15] [2018] VCAT 451

[16] [2013] VCAT 1683

[17] [2014] VCAT 342

[18] [2014] VCAT 343

[19] Clause 16.02-4 Stonnington Planning Scheme and Matthies Property Investments Pty Ltd v Stonnington CC [2013] VCAT 2011 at [35] and [43]

[20] [2008] VCAT 6

[21] For examples of such changes, see the cases described earlier.

[22] Bestway Group Pty Ltd v Monash CC [2008] VCAT 860 at [20]

[23] Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259; The Sisters Wind Farm Pty Ltd v Moyne SC [2012] VSC 324; Forbes v Vukadinovic [2018] VSCA 138

[24] Transitional provisions can modify the application of current planning controls, but they form part of the planning scheme and hence fall within the ambit of this general principle. There are other provisions within the planning scheme, which allow a permit to be granted for prohibited uses such as clause 63.08 and clause 43.01-6, but they too form part of the planning scheme and also fall within the ambit of this general principle.

[25] Rights may also arise under the existing use rights provisions of the planning scheme in clause 63. However, in considering the issue of what amendments may be permitted to an existing permit for use or development, section 28(2)(e) of the Interpretation of Legislation Act 1984 is the governing provision. Nevertheless, the first and second dot points of clause 63.05 reflect the general principle we have set out, which is that any amendment to an existing permit for use or development must reflect the planning scheme provisions at the time of the amendment. These provisions of the planning scheme though are subject to the protection offered to accrued rights under an existing permit pursuant to section 28(2)(e) of the Interpretation of Legislation Act 1984, as we have discussed.

[26] [2010] VCAT 104

[27] [2010] VCAT 104 at 63] - [65]

[28] (1998) VSC 7; 22 AATR 325

[29] [2010] VCAT 104 at [87] - [91]

[30] [2010] VCAT 104 at [93] - [94]

[31] [2014] VCAT 466

[32] [2014] VCAT 466 at [35] - [37]

[33] [2014] VCAT 466 at [38] - [62] and [65]

[34] [2017] VCAT 1422 at [46]

[35] [2005] VCAT 1049

[36] [2005] VCAT 1049 at [24]

[37] See Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 34 LGRA 151; Mrocki v Port Phillip CC (No. 1) [2007] VCAT 1719; Mrocki v Port Phillip CC (No 2) [2008] VCAT 2304; Glenelg SC v Printz Pty Ltd [2009] VCAT 2477

[38] [2006] VCAT 2218

[39] It should be noted that the reasons in this decision relate to an application to amend an existing permit. We have not made any findings in respect of the status of the permit as it currently exists.

[40] We note that clause 21.07-3 commences by stating that it provides local content to support a number of clauses within the SPPF. It does not refer to clause 12.05 and continues to refer to Clause 11.04-8. Amendment VC121, gazetted on 21 December 2017, introduced the former and deleted the latter. Clause 21.07-3 has not been updated in response to Amendment VC121.

[41] Kantor v Murrindindi Shire Council (1997) 18 AATR 285;