Victorian Civil and Administrative Tribunal|2014-04-01

The applicant explained that the reason for the request to convert the development to a conventional apartment complex was that it had been unable to successfully market the development as a retirement village. A considerable amount of money has been spent on marketing to no avail.
This sort of change in market conditions was commented upon by the Tribunal in Palmieri Architects v Yarra City Council[2]. The Tribunal said:

[10] I note here that in the King David matter that Tribunal considered that exceptional circumstances might include market conditions as a reason for seeking amendments. I would treat such circumstances with extreme caution. In my view, in anything other than the most extra-ordinary circumstances, a change in market conditions would normally fall outside the contemplation of planning considerations. I would take the previous Tribunal's adoption of such a circumstance to not to be taken as an opportunity for permit holders to amend plans or use just because it is felt that what has been approved may not sell in the current market or that the amendments may see a better return achieved. Rather it should be taken to mean that unusual or unanticipated conditions of a most extra-ordinary nature have arisen that requires substantive changes.

[11] While one can recognise the intertwining nature of planning, development and economic benefit, as expressed within section 4 of the Planning and Environment Act, for many commercially driven applications there will always be an element of a calculated 'market risk' as part and parcel of the process. If the calculation of such risk is found wanting once a permit is gained, then the proper and orderly planning process required under the Planning and Environment Act would seem to require an examination of a substantively revised proposal through the process of a new permit application.

However for reasons that I will now explain it is not necessary for the Tribunal to further consider the applicant's case on this point.

Wide though the power to amend a permit under section 87A may be there is in my opinion a threshold question. The threshold question is whether what is proposed is properly characterised as an amendment of the permit.
I am mindful of what was said by the Supreme Court in Addicoat v Fox (No 2)[3], regarding the difference between a modification or amendment, and a transformation, a distinction which the Court described as "a matter of degree and indeed it is almost one of impression."
It is not possible to lay down a universal rule which identifies where the line is to be drawn between amendment and transformation. It is possible only to say in any particular case on which side of the line the proposal falls. However I consider that the line must be drawn in a town planning context so the question is whether from a town planning perspective what is proposed is a modification of what the permit allows, or alternatively a transformation into something different. If it is the latter it goes beyond the jurisdiction conferred by section 87A and requires a new application for permit with all the statutory process that entails.
The power conferred by section 87A is to be contrasted with the power given by clause 64(3) schedule 1 Victorian Civil & Administrative Tribunal Act 1998 to amend an application for permit. The latter power specifically authorises the Tribunal to amend the application to substitute a use or development which is different from the use or development applied for. This enables an amendment which does transform the application. The legislature has not extended section 87A in the same way.
This is not to say that a change of use can never be considered under section 87A of the Act. The question will always be whether the change proposed is to be characterised as an amendment or a transformation.

Although a retirement village and conventional multi-dwelling development are both residential uses, and are both nested under clause 75.01 of the planning scheme in the Accommodation group, there is in my opinion a qualitative difference between them. "Retirement village" is defined in the planning scheme as:

Land used to provide permanent accommodation for retired people or the aged and may include communal recreational or medical facilities for residents of the village.

The hypothetical person on the Bourke Street tram, the antipodeon cousin of the man on the Clapham omnibus, would regard a retirement village as associated with the provision of communal facilities, both indoor and outdoor, that are intended to create a sense of community amongst a group of residents who may be described as senior citizens. This may require a scale and density of development necessary to justify the provision of the communal facilities, being a scale and density that may not be appropriate in a conventional multi-dwelling development. For the same reason development standards may be less stringent than for conventional development.
A retirement village is itself a community facility, something which cannot be said of an ordinary multi-dwelling development. This may also justify dispensation from certain standards. Further, there may be a need for a retirement village in a particular area which overrides, for example, considerations of neighbourhood character. The same need may not exist for normal unit development.
This is not to say that it is appropriate for a retirement village to provide sub-standard accommodation. What it does say is that, like student housing, it is a form of residential use which by virtue of the restricted category of residents may be acceptable in circumstances where conventional unit development using the same built form may not.
I consider that a retirement village is a different planning concept to conventional multi-dwelling development, and that a proposal to convert one to the other would be a transformation of the development rather than an amendment. In my view this cannot be done using the mechanism of section 87A of the Act.
However, that is not an end of the matter.

It is necessary to consider more closely just what is meant by a retirement village. Retirement villages are subject to specific legislative control under the Retirement Villages Act 1986 (the RV Act). In the RA Act a retirement village means:

(a) the majority of which is retired persons who are provided with accommodation and services other than services that are provided in a residential care facility; and

(b) at least one of whom, before or upon becoming a member of the community, pays or is required to pay an in-going contribution.

(a) a person who has attained the age of 55 or has retired from full-time employment; and

(b) the spouse or domestic partner of such a person; and

(c) if the person mentioned in paragraph (a) has died, the person who was the spouse or domestic partner of that deceased person.

It will be noted that these definitions are more precise than the planning scheme definition of "retirement village". However, there is nothing in the planning scheme definition that is inconsistent or at cross purposes with the definition in the RV Act.
It is clearly desirable that there be a uniformity of approach between the two legislative schemes, and this can be achieved by treating the planning concept of a retirement village as mirroring the legislation that specifically deals with retirement villages. There is nothing in the planning scheme that expressly or by implication precludes this.

In these circumstances I consider that it is appropriate to clarify the preamble to permit No. PLO9/020347 by inserting the words "as defined by the Retirement Villages Act 1986" after the expression "Retirement Village". This can clearly be done within the ambit of section 87A of the Act.

The alignment of what is authorised by the permit with the concept of a retirement village under the RV Act shifts attention to condition 8 of the permit. The condition, set out above, requires the permit holder to enter into a section 173 agreement which imposes significantly greater restrictions on who may live in the complex than are imposed by the definition of "retirement village" under the RV Act. The relevant difference is that under the agreement all residents of the village must be at least 55 years of age, or a spouse of such resident, whereas under the RV Act a majority of residents must be "retired persons" within the definition set out above. This is considerably less restrictive than the requirements of the agreement.
In my view, condition 8 should be modified to align it with the RV Act. The operative part of the revised condition should be amended to read as follows:

The agreement must provide that the majority of persons residing in the development are retired persons as defined by the Retirement Villages Act 1986.

These amendments to the permit will ensure that the development remains a retirement village as that land use is described in the legislation which specifically relates to and governs the conduct of retirement villages.

The situation in the present case is complicated by the fact that the agreement referred to in the unamended form of condition 8 has already been executed, although as I understand it not yet registered on title. Nor has the sale of any of the individual apartment as yet been settled. This means that the owner of the land will remain bound by the terms of the executed agreement unless and until the agreement is amended to reflect the amended condition 8. This is a matter that will have to be resolved between the owner and the responsible authority.

The request also seeks the substitution of amended plans which make a number of changes to the development. The changes are in general confined to rearrangement of the internal layout. The major changes are the deletion of a communal kitchen and a small lap pool, an increase in the size of the gymnasium, spa and sauna area, an increase in the communal area at ground floor level, and the addition of two one bedroom apartments at the lowest level near Greenridge Avenue.
The Tribunal is satisfied that the overall provision of communal facilities for residents of the retirement village is acceptable and is what can be expected in a reasonably upmarket retirement village. The changes to the location of facilities will have no impact on either the internal amenity of the development or its affect on neighbouring properties.
The two new apartments will marginally increase the site coverage of the development. However, they are situated well below the level of the adjoining residential property owned by Mr and Mrs Law at 82 Greenridge Avenue, and in the Tribunal's opinion will have no impact at all on that property, or any other adjoining property.
The Tribunal will approve the substitution of new plans.

The objections fall into two categories, objections from neighbouring residents and objections from purchasers or prospective purchasers of apartments within the complex. The objections from neighbouring residents are focussed on the built form, and contend that the development is too large and overbearing and quite out of character with the neighbourhood. It was also contended that King Street is inappropriate for on-street parking.
The difficulty with these objections is that they have been overtaken by events. The objectors seek to re-agitate matters that were debated before the Tribunal in 2009, when the Tribunal rejected a more intensive proposal (see Central Estate Properties Pty Ltd v Manningham CC[4]) and the council at the time the permit was granted in January 2010. Questions relating to built form were resolved at that time. Objections to the built form are simply not relevant to the request to amend the permit which is now before the Tribunal.
The objection from prospective purchasers is that they understood they were buying into a retirement village, with the communal culture and interaction between residents with common interests that is associated with a retirement village. They contend that this would be destroyed or seriously diluted if the apartments are made available for anyone.
The Tribunal considers that this concern is met by the amendment it is proposing to make, which simply brings the development into line with the legislation relating to retirement villages. Purchasers of the units cannot reasonably expect that the ability to purchase an apartment should be more restrictive than contemplated by that legislation.
If there are disputes between the residents of the development and the developer regarding the adequacy of concierge type services within the building they must be resolved by reference to the contractual arrangements between them. That is not a matter within the jurisdiction of the Tribunal in this proceeding.

Environment Act 1987

Central Estate Properties Pty Ltd v Manningham CC (Includes Summary) (Red Dot) [2014] VCAT 343 (1 April 2014)

The King David School v Stonnington City Council & Others [2011] VCAT 520

Palmieri Architects v Yarra City Council [2012] VCAT 53

Central Estate Properties Pty Ltd v Manningham CC

At a glance

Court

Decision date

Source

Judgment (27 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (3)

Central Estate Properties Pty Ltd v Manningham CC (Includes Summary) (Red Dot) [2014] VCAT 343 (1 April 2014)