Victorian Civil and Administrative Tribunal|2014-04-23

The applicant submitted that the limitations in section 73(2), namely that if there is a decision to grant an amendment to a permit subject to conditions, the conditions must relate to the amendment to the permit, supported its argument that consideration of the application should be restricted to the differences between the permit and the proposed amendments. By contrast, the council said that this provision only applies if there is a decision to grant an amendment to a permit. Section 73(2) has no bearing on the decision as to whether or not to grant an amendment.
I agree with the council that section 73(2) only applies once there is a decision made to grant an amendment. However, I do not consider this assists the council in terms of the weight to be placed on compliance with DDO9 in actually making the decision. Section 73 applies to the procedure for the application. Section 73 does not mean that the application must be treated as if it were an application for a permit, but rather the same process must be followed as the process for a permit application.
Nevertheless, I consider it lends weight to the approach generally taken by the Tribunal that when considering an amendment to a permit, it is necessary to focus on the amendment, not on whether the permit itself would be likely to be approved today.
The application under consideration is an application to amend the permit in certain ways. Two changes are proposed:
- An amendment to what the permit allows to read:

It is the amendments that form the subject matter of the application and the decision. Accordingly, it is necessary to consider the ways in which the amendment will differ from the permit in its existing form (including any plans under the permit). It is in this context that any changes to the planning controls subsequent to the grant of the permit may be relevant. In other words, do the changes to the permit make changes that would now be contrary to the changes in the planning scheme? If so, this may lend weight to rejecting those changes. On the other hand, if aspects of the existing permit or endorsed plans are already contrary to changes in the planning scheme and the changes to the permit do not alter this, there is less reason to reject those changes.
For example, suppose that the plans in the present case set back the buildings and works 20 metres from Tarneit Road, but the amended plans proposed to reduce that setback substantially. In such circumstances, it would be relevant to consider the change to the planning controls wrought by DDO9 in terms of the front setback because a change in the front setback is one of the amendments proposed.
However, in circumstances where there is no change proposed to the front setback, I do not consider it is relevant to place any weight on the fact that this control has changed subsequent to the grant of the permit. In other words, there is no amendment proposed to this aspect of the plans[13].
Likewise, there is no change proposed to the side setbacks of the dwellings, apart from some very minor increases and decreases, which I do not consider to be of any substance. The same comments apply to setbacks from the rear boundary. The garage of dwelling 17 on both the endorsed plans and the amended plans abuts the rear boundary. The main difference is that on the amended plans the footprint of dwelling 17, including the abuttal to the rear boundary, is smaller.
Having regard to the differences between the endorsed plans under the permit and the amended plans, the primary difference is the reduction in height from two storey dwellings to single storey dwellings. So far as DDO9 is concerned, the change is not relevant. DDO9 provides that a new building should not exceed 9 metres in height. Neither the dwellings shown on the endorsed plans or the amended plans exceed this height.
Whilst the council's grounds of refusal refer to various aspects of the design that do not meet the requirements of some ResCode standards (for example Standard B10 - Energy Efficiency Objectives; Standard B29 - Solar Access to Open Space; Standard B34 - Site Services Relocation of Central Mail Box) these aspects are no different to the endorsed plans, which were considered acceptable when the permit was originally granted.
So far as I can see, the only changes that have any relevance to the specific provisions of DDO9 are that the design of the dwellings on the amended plans does not include eaves, whereas the dwellings on the endorsed plans all have roof eaves. One of the design requirements set out in clause 2.0 of DDO9 is that:

New development should be a contemporary, innovative design response and incorporate articulation of facades, roof forms with eaves, and variation in building form and mass to reduce visual bulk and create open space areas and opportunities for tree planting.

With respect to the design requirement in DDO9 relating to articulation of facades, roof forms with eaves and variation in building form and mass, the only major difference between the endorsed plans and amended plans, apart from the removal of the second storeys, is the removal of roof eaves. Mr Milner was critical of this feature and I agree with his evidence on this point. I consider that the design of the dwellings should include roof eaves. This would reinstate a feature of the endorsed plans, which previously complied with DDO9, and ensure that this particular aspect is not now contrary to DDO9. Reinstating roof eaves would also improve the articulation of the buildings and their energy efficiency.
However, with respect to other aspects of the design requirement in DDO9, I find that nothing has changed in terms of design response and variation in building form and mass between the endorsed plans and the amended plans. Neither are particularly innovative or highly articulated. There is a bland repetition in building form and mass across the site. However, as this was considered to be acceptable when the permit was granted, I do not consider it should be a basis for rejecting these amendments.
With respect to landscaping, there is a specific condition in the permit requiring preparation of a landscaping plan to the satisfaction of the responsible authority. No change is proposed to this condition.

I conclude that the existing permit, as it is worded, represents an accrued right within the meaning of section 28(2)(e) of the Interpretation of Legislation Act 1984. Accordingly, I find that no further permission is required for development under DDO9.
I find that the permit may be amended even though the development does not comply with the planning scheme.
In considering an amendment to a permit, the decision should focus on the changes proposed by the application. Where aspects of an existing permit do not comply with the current provisions of the planning scheme and the proposed changes do not alter that non-compliance, then little weight should be placed on the non-compliance when exercising discretion whether to allow the amendments. The question of weight may be different if the existing permit is compliant, but the changes will result in non-compliance.
As a result, I find that the proposed amendments in the present case will not increase the degree of non-compliance with the planning scheme provisions as they now are following Amendment C184, except with respect to the provision of roof eaves. Subject to the provision of roof eaves in the plans, I will amend the permit and the plans endorsed under the permit.

The proposed development does not comply with the siting requirements of the Interim Design and Development Overlay DDO9 (approved under Planning Scheme Amendment C184), which states siting of a new building must be setback a minimum of 20m from the front property boundary of Tarneit Road and 8m from the rear property boundary;
The proposed development does not comply with the design requirements of the Interim Design and Development Overlay DDO9 (approved under Planning Scheme Amendment C184), which states that the design should be innovative, variation in building form and mass and the creation of adequate open space;
The proposed development does not comply with the landscaping requirements of the Interim Design and Development Overlay DDO9 (approved under Planning Scheme Amendment C184) ensuring that at least one large canopy tree must be provided per 600m2;
The proposed development does not comply with the objectives and requirements of the Tarneit and Sayers Road Neighbourhood Character Investigation Area, Final Report;
The setback of the development at 9m instead of 20m will not integrate well with the street and will not meet the requirements of Standard B5 (Integration with the street objective)
The living areas and private open space of dwelling 8 to 16 do not meet requirements of Standard B10 (Energy Efficiency Objectives);
Ultimate access to the site will not meet Council's standards and not respect the evolving neighbourhood character of the area and will not meet the requirements of Standard B14 (Access Objective);
The solar access provisions of dwellings 8 to 16 do not meet the requirements of Standard B29 (Solar Access to Open Space);
The design is considered to be of a low architectural standard and does not meet the requirements of Standard B31 (Detailed Design);
The location of the central mailbox is located within the 9m setback which will obstruct proposed future access along Tarneit Road and it does not meet the requirements of Standard B34 (Site Services).

All dwellings are now single storey;
fourteen dwellings (Dwellings 1 to 5 and 8 to 16) have been reduced from three bedrooms to two bedrooms;

fourteen dwellings (Dwellings 1 to 5 and 8 to 16) have had their double garages reduced to single garages;

the backyard setback of Dwelling 6 has been reduced from 4.8m to 4m;
the backyard setback of Dwelling 7 has been increased from 4.8m to 5.2m;
the backyard setback of Dwellings 8 to 16 has been reduced from 4.43m to 4m;
the front setback of Dwelling 1 has been increased from 8.97m to 9.08m;
site coverage has increased from 46.79% to 47.45%;
impermeable site coverage has been reduced from 69.1% to 62.92%;
visitor car parking spaces have been reduced from four to three;
the space between dwellings along the common driveway has been increased from 7.01m to 7.4m; and

the façade of the dwellings was colour bond steel roof with small elements of weatherboard on the first floor and brick. It is now proposed to use cement tiles and brick.

[2] Clause 32.01-4 Wyndham Planning Scheme

[8] Kantor v Murrindindi SC [1997] 18 AATR 285

[9] In this context, no issue was taken by the council with the fact that what is proposed is an amendment of the permit, rather than a transformation. In Coles Property Group Developments Limited v Boroondara CC (Including Summary) (Red Dot) [2014] VCAT 342 the Tribunal held that the power to amend a permit set out in section 87A (and equally the power to amend under sections 72 et seq (Division 1A) and 87) does not include the power to transform the permit so that, viewing the matter broadly and fairly, what results is a different permit as opposed to a modified permit. In the present case, I find that what is proposed is an amendment of the permit, not a transformation.

[10] Bestway v Monash CC [2008] VCAT 860 at [19];

[11] (Includes Summary) (Red Dot) [2010] VCAT 104

[13] In fact, there is a slight increase in the front setback at the corners of dwellings 1 and 8.

Environment Act 1987

Callea Property Developments Pty Ltd v Wyndham CC [2014] VCAT 466 (23 April 2014)

Callea Property Developments Pty Ltd v Wyndham CC [2014] VCAT 466

At a glance

Court

Decision date

Source

Judgment (23 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

Callea Property Developments Pty Ltd v Wyndham CC [2014] VCAT 466 (23 April 2014)