Written evidence was tabled from Ms Samantha Slicer of Flood Slicer author of the photomontages. Ms Slicer was not called to give evidence.

Ms Phillipa Martin for herself, Shane Dineen, Giulia Damante, Paul Chung and Ae Jin Park.

A permit was granted, at the direction of the Tribunal, for a four level mixed use development containing dwellings, shops, cafe and offices. The building included two levels of basement containing car parking and storage.

The current proposal is for a 1620m² supermarket, a mezzanine office area at first floor and two levels of basement containing car parking.

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

Special Building Overlay(SBO) applies to only part of the land

Clause 34.01-4 A permit is required to construct buildings and works in a Commercial 1 Zone.

Clause 43.01-1 A permit is required to demolish a building, construct a building or construct or carry out works under HO532.

Clause 43.02-2 A permit is required to construct a building or construct or carry out works under DDO18.

Clause 44.05-1 A permit is required to construct a building or to construct or carry out works under the SBO.

Clause 52.06-3 A permit is required to reduce the number of car spaces required by clause 52.06-5.

Key Policies and Provisions of the Boroondara Planning Scheme

Clauses 10, 11, 15, 17 and18 of the State Planning Policy Framework.

Clauses 21, 22.05, 22.10 and 22.12 of the Local Planning Policy Framework.

Clauses 34.01, 43.01, 43.02, 44.05, 52.06, 52.07, 52.34 and 65.

The review site comprises 7 adjoining lots in a combined parcel of 2204m² located on the western side of Union Road and bounded by Croydon Road to the north, Sunbury Crescent to the south and a right of way to the west. The land falls to the north west corner and currently contains a mix of single and double storey buildings.

The site is within the Union Road Neighbourhood Shopping Centre which contains a mix of commercial and retail use with the Surrey Hills railway station located some 100m to the south-east of the review site.

An accompanied inspection was undertaken of the review site and surrounds on 26 February 2014. The Tribunal undertook an unaccompanied site visit to the Coles supermarket at 95-103 Johnston Street Fitzroy and viewed some examples of additions to heritage buildings referred to by Mr Raworth.[3]

Addicoat v Fox (No 2) [1979] VR 347; [1979] VicRp 37; Melbourne CC v Becton [2003] VCAT 1077; Tarwin Valley Coastal Guardians Inc v Minister for Planning and Anor [2010] VCAT 1226; City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; Australian Slate-Crete Supplies v Casey CC [2008] VCAT 6; Bestway v Monash CC [2008] VCAT 860; Westpoint Corporation Pty Ltd v Moreland CC [2005] VCAT 1049; Fosters Group Ltd v Mornington Peninsula SC [2010] VCAT 104

1. This application is a request under section 87A of the Planning and Environment Act 1987 to amend a permit. The Tribunal has found that the extent of the proposed changes are so great that they would result in a transformation resulting in a different permit as opposed to a modified permit. Consequently, the Tribunal finds that it has no jurisdiction because its power is limited to a power to amend the permit not transform it.
2. Nevertheless, the Tribunal agrees with the council's position that with some changes, the proposal would be acceptable if a fresh planning permit application was to be made.

1. A permit was granted at the direction of the Tribunal[5] for a four storey mixed use development at 126-138 Union Road and 63 Sunbury Crescent, Surrey Hills. An application has been lodged with the Tribunal to amend the permit to allow construction of a single level supermarket with a mezzanine office above.
2. Boroondara City Council (the 'Council') support the merits of the proposal, subject to some amendments, but oppose the process of amendment to the permit arguing instead a new permit should be applied for given the extent and significance of changes sought.
3. A number of nearby residents oppose the proposal for reasons relating to negative impacts on amenity arising from delivery arrangements, noise emissions, overflow parking, trolley management, increased traffic and extensive hours of operation.
4. The applicant submits that the supermarket proposal will be of considerable benefit to the local shopping centre, is consistent with State and local policy and will present a built form responsive to the setting. It is the applicant's submission that it is appropriate for the Tribunal to exercise its broad discretion under section 87A of the Planning and Environment Act 1987 (the 'Act') to amend the permit as sought.
5. Despite our finding on this threshold issue that we lack power under section 87A to amend the permit in the manner sought, we provide comment on the merits of the proposal since we anticipate the proposal may become the subject of a new application for permit and our findings may be helpful. In considering the merits we have had regard to the submissions and evidence, the statements of grounds, the provisions of the Boroondara Planning Scheme (the 'Scheme') and the information gained on our site visit. We consider the key issues to address are as follows:
   • Strategic support for the proposal
   • Acceptability of built form
   • Impact on amenity
   • Adequacy of car parking and traffic issues
6. We have found that a supermarket on the review site is supported by State and local policy, amenity impacts are acceptable or can be addressed through permit conditions, car parking provision is appropriate and additional traffic generated by the proposal can be absorbed in nearby streets. We find the built form response acceptable in an activity centre setting but have concerns about the response to heritage values in relation to 138 Union Road.

1. The applicant seeks to amend planning permit No PP11/00895 (the permit) issued on 14 June 2012 at the direction of the Tribunal in Union Central Pty Ltd v Boroondara CC[6]. The permit relates to the subject land and allows:
   • The use of the land for the purpose of dwellings, for food and drink premises (café) and shops;
   • The use of offices (no permit required);
   • Construction of a four level residential building; and
   • Car parking, loading bay and bicycle parking dispensation;

1. The application proposes to amend:
   • What the permit allows to include reference to a permit trigger for demolition and to delete references to uses no longer proposed on the land;
   • Many of the conditions on the permit; and
   • The plans referred to in the permit.
2. The requested amendments effectively remove all residential components, the restaurant and the office space, and convert seven individual shop tenancies into single supermarket. The proposed built form is completely different in scale, design and typology.
3. Since the Tribunal's decision in Union Central, the following significant changes have occurred to the planning scheme:
   • The zoning of the land has changed from Business 2 Zone (B2Z) to Commercial 1 Zone (C1Z). The main effect of this change is that under the C1Z no permit is now required to use the land for the purpose of shop.
   • The land has been included in a Heritage Overlay (HO532). As a result, a permit is now required for demolition and to construct a building and carry out works under the Heritage Overlay.
   • The land has been included in a new Design and Development Overlay (DDO18). DDO18 introduces mandatory height and street wall height limits. Whilst the overall height of the development is substantially reduced in the amended proposal, there are still aspects of it that will not comply with the height limits of DDO18.
   • There have been amendments to clause 52.06 (car parking) and 52.34 (bicycle parking), which necessitate some minor modifications to the permissions required.
4. So far as the applicant is concerned, one advantage of amending the permit, as distinct from making a fresh application for a new permit, is that DDO18 contains transitional provisions that provide:

The requirements of this overlay do not apply to any planning permit application decided by the responsible authority before 26 July 2012 or to any development for which a planning permit had issued before this date.

1. In addition, the Tribunal has previously held that a permit can be amended so as to permit use and development that would be otherwise prohibited under the planning scheme, although a permit cannot be amended to include a new prohibited use.[7] This means that it would be possible to amend the permit to allow changes to the buildings and works in terms of exceeding the height limits specified in DDO18, which would not be possible if a fresh planning permit application was made.

1. This application is made pursuant to section 87A of the Planning and Environment Act 1987. Section 87A(1) provides as follows:

87A Cancellation or amendment of permit issued at direction of Tribunal

(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.

1. The question that arises in this case is whether there are any limits on the extent to which a permit may be "amended" under section 87A. What happens if the proposed changes are so great as to constitute a "transformation" of the permit so that it can no longer be said that the permit is being amended? In such case, if the changes would constitute a transformation, does the Tribunal have jurisdiction to consider an application under section 87A?

1. The Council raises this as a threshold issue. It submits this is a question of jurisdictional fact upon which the power of the Tribunal to amend the permit is based. Before the Tribunal can get to the point of deciding whether it is appropriate to amend the permit, it must be satisfied that what is proposed is an amendment of the permit rather than a transformation. In the present case, the Council says that this is a completely new development representing such a radical departure from the original proposal and such extensive modifications to the permit that it cannot be said that the permit is being amended: rather it is being transformed.
2. In support of this argument, the Council relied on the case of Addicoat v Fox (No 2)[8]. In that case, Brooking J considered the power of the then Town Planning Appeals Tribunal to issue a permit departing from the initial application. Brooking J established the basic principle that where a permit application is lodged, which at some later time is sought to be amended, these alterations cannot be so sweeping as to cause a situation where the alteration ceases to be a modification and becomes transformation.[9]
3. The key passage of His Honour's judgment is as follows:[10]

In my opinion, a power to grant a permit subject to conditions authorises the responsible authority to grant a permit for a use or development which differs from the use or development the subject of the application for a permit, provided that the difference is not so radical as to enable it to be said, viewing the matter broadly and fairly, that to grant a permit on the supposed conditions would not be to grant the permit applied for with modifications, but to grant a different permit. This is plainly a matter of degree, and indeed it is almost one of impression. In my view, the changes made may be considerable without necessarily bringing it about that the permit granted is a different as opposed to a modified permit. Whether more may be countenanced by way of limiting the development or use, as opposed to extending it, before the point is reached at which alteration ceases to be modification and becomes transformation, is a question which I find it unnecessary to decide. On this question fairness and convenience may point towards one conclusion and logic towards another. [Emphasis added]

1. In Bestway v Monash CC[11], the Tribunal considered how far an amendment could go under section 72, 87 or 87A of the Act. On this point, the Tribunal said:

[14] ... I consider that the ambit of change that may be made to a permit under any of these provisions may be quite substantial and may include changes to any of the things allowed by the permit, its conditions and the land description. Apart from plans, drawings and other documents, the component elements of a permit include the use or development or other thing allowed by the permit, the land description and the conditions. There is no suggestion in the words of any of these provisions of the Act that changes could not be made to any of these elements subject to proper notice being given to potentially affected persons. ...

1. The Tribunal also held that there is no reason why amendments to permits under section 72 or 87A may not also include new primary consents.[12] However, the Tribunal then went on to say:

[21] Clearly, conditions may be amended as a consequence of such amendments to what the permit allows. Conditions may also be amended without any change to what the permit allows. Situations could arise where the land description might change too.

[22] Of course, there are some limits to all this. As I said in Australian Slate Crete Supplies:

[29] ... The process of amending a permit would stop short of allowing a transformation. In this respect, the principle of Addicoat v Fox (No 2) remains relevant - "changes made may be considerable without necessarily bringing it about that the permit granted is a different as opposed to a modified permit."[13] Thus for a completely new or unrelated use or development, I consider that the proper procedure is to apply for a new permit rather than applying to amend an existing permit in such a way that would result in a different permit as distinct from modified permit.[14]

[23] If a proposed use or development is totally unrelated to the permit as it exists and would entail completely new conditions, I consider that the amendment process would be inappropriate. There would be no point in attempting to amend a permit in such circumstances where nothing would be left of the original permit. An application for a new permit should be made. However, where the permit is not transformed but retains significant elements of its previous content, and simply adds to, expands or alters what has been previously allowed, I consider that amending a permit, rather than always having to apply for a new permit, is now clearly contemplated by the provisions in the Act.

1. The Council submitted that applying the principle of transformation derived from Addicoat is a prerequisite before the exercise of the Tribunal's power. It referred to the decision of Justice Morris in Melbourne CC v Becton[15] where he discussed the doctrine of jurisdictional fact. In describing the doctrine, he cited with approval the comments by the majority of the High Court in City of Enfield v Development Assessment Commission[16]:

The term jurisdictional fact (which may be a complex of elements) is often used to identify that criterion, the satisfaction of which enlivens the power of the decision maker to exercise a discretion.

A jurisdictional fact is a fact which must 'in truth' exist before the decision maker can validly act.

1. The Council submitted that in Becton, the Tribunal was required to determine whether an amendment made to a permit by the Minister was consistent with the permit. Morris J reached the view that whether the amendment was consistent with the permit was a matter of jurisdictional fact rather than a question to be determined by the responsible authority.
2. The determination of whether the supermarket proposal transforms the permit is determinative of the Tribunal's ability to make the amendments. Put another way, before the jurisdiction of the Tribunal is enlivened in this matter, it must find as a matter of fact that the proposed amendments do not transform the original proposal.
3. In the Council's view, it did not see how any Tribunal could arrive at this conclusion. Accordingly, the Tribunal should find, as a matter of jurisdictional fact, that the application is a transformation.

1. For its part, the applicant says that the question of whether an amendment is transformative or non-transformative is not a question of jurisdictional "fact". This is because whether an amendment is transformative or non-transformative is not a matter of fact.
2. The applicant referred to the words Brooking J in Addicoat that the question is "plainly a matter of degree, and indeed it is almost one of impression". Consistent with this approach, the applicant contends that the question should at the very least be characterised as a question of mixed fact and law. Whilst it is a question that involves a factual component, it is not limited to an analysis of the facts alone.
3. It could be contrasted, by way of relevant example in the context of section 87A, with the question of whether the instrument that is sought to be amended is in fact a planning permit. This, in the applicant's submission, could properly be considered a jurisdictional fact in the context of section 87A - the Tribunal's power is enlivened only in factual circumstances where the instrument that is to be amended is a planning permit.
4. For this reason the applicant submits that, even if the notion of transformation is to limit the power of the Tribunal under section 87A in any way, it would do so not as a matter of jurisdictional fact but instead as some other statutory precondition to the exercise of that power.
5. However, regardless of whether the characterisation of an amendment as transformative or not constitutes a jurisdictional "fact", the applicant contends that nothing in the word "amend" as it appears in section 87A should be taken to curtail the power of the Tribunal to make amendments that are transformative in character in the sense contemplated by the Supreme Court in Addicoat or by the Tribunal in Bestway.
6. The applicant further contends that nothing in the terms of section 87A, or any other provision of the Act, evidences an intention on the part of the legislature that the word "amend" be read down in the manner contemplated. In support of this argument, the applicant noted:
   • The broad definition of the term "amendment" in the Act to include "addition, deletion or substitution".
   • Pursuant to section 87A, the Tribunal is expressly entitled to exercise its power in any circumstances that it considers "appropriate".
   • By providing comprehensively for third party notification and participation in the decision making process, the scope for unfair outcomes to occur through the amendment process - of the type contemplated by the Supreme Court in Addicoat - is addressed.
   • Section 90A(i) requires that the application be assessed "as though it were an application for review", which necessarily involves a wide ranging assessment focussing on the planning merits of the proposal.
   • The term "amendment" is clearly intended to encompass a broad range of alterations in other parts of the Act (for instance, section 4B concerning the "amendment of planning schemes", which could not possibly be limited in scope in the manner contemplated in this instance; or section 50(2)(a) of the Act which clearly links the concept of amendment to a range of substantial alterations).
7. The applicant submitted that permissible amendments to planning permits under section 87A may be trivial or they may be transformative. At all times the Tribunal has the discretion to refuse to make an amendment if it considers it inappropriate. The scope of the amendment proposed may be a relevant factor to be considered by the Tribunal in determining whether it is appropriate to exercise its power to amend a planning permit. However, it should not be considered a limit on the Tribunal's power.

1. In our view, the Council's application of the doctrine of jurisdictional fact to the interpretation of section 87A is misconceived.
2. Whilst the Council has relied upon Becton and drawn an analogy between the facts in that case and the facts in the present case, we do not consider they are the same for similar reasons given by the Tribunal in Tarwin Valley Coastal Guardians Inc v Minister for Planning and Anor[17].
3. In Tarwin Valley Coastal Guardians, the Tribunal was called upon to decide whether the criteria in Westpoint Corporation Pty Ltd v Moreland CC[18] were not merely a guideline but a jurisdictional fact, that is a prerequisite or precondition before the exercise of any secondary consent. The Tribunal held that the doctrine of jurisdictional fact was not applicable in the situation before it. In doing so, it said:

[27] ... The decisions relating to 'jurisdictional fact' relate to whether a factual reference in a statutory formulation is a 'jurisdictional fact' and in such circumstances the normal rules of statutory construction apply[19]. Such a fact is objectively ascertained and essential.

A jurisdictional fact is said to be a fact which must 'in truth' exist before the decision-maker or official can validly act. That is, its existence is to be determined finally by the superior court which decides whether it thinks the fact existed at the relevant time[20].

[28] In Enfield City Corporation v Development Assessment Commission[21] the High Court held that the question whether what was proposed would fit within a statutory definition of 'special industry' was an issue of 'jurisdictional fact' and was not for the Development Assessment Commission itself to finally determine. The criterion 'special industry' was a matter of fact which did not depend upon the satisfaction or opinion of the Development Assessment Commission.

[29] In Becton[22] Morris J referred to the decisions in both Enfield and Timbarra in reaching a conclusion that the 'power given to the responsible authority to approve an amendment to any plans approved under a permit is clearly conditional on the amendment being of a certain character. The use of the word if in section 62(3) makes this plain'. Section 62(3) is no longer in the PE Act but at the time of the Becton decision it provided:

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

(i) the planning scheme currently applying to the land; and

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

[30] The power given to the Responsible Authority in section 62(3) was relied upon by the Minister in Becton to amend a Concept Plan which had been approved under a permit. Morris J observed that the 'power to approve an amendment to plans is a broad power; but it is not a power which would extend to the approval of plans which transformed the development shown on the plans which had been approved under the permit'[23]. In other words the power to approve the amendment to the Concept Plan was dependent on the amendment being consistent with the permit as a matter of fact as required under section 62(3)(a)(i) and (ii).

1. We consider that a similar situation applies to section 87A. We agree with the applicant that the only factual reference in section 87A that could be said to be a jurisdictional "fact" is whether the instrument that is to be amended is a planning permit or not. Apart from this, there is nothing in section 87A that places any factual constraints on when the power to amend a permit may be exercised, as was the case in Enfield and Becton.
2. Apart from the requirement that the instrument being amended is, in fact, a permit, the only issues of fact that we consider would arise in the context of an exercise of power under section 87A would be whether the amendment would authorise anything which would result in a breach of a registered restrictive covenant (section 91(3A)) or, in the case of a permit which relates to a subdivision or consolidation, whether the plan of subdivision or consolidation has been registered under the Subdivision Act 1988 (section 91(5)). In each of these cases, if the fact is established, the Tribunal must not amend or cancel the permit.
3. Apart from these provisions, we do not consider there are any other factual limitations that would constrain the exercise of the power under section 87A to cancel or amend a permit. The issue of whether the Tribunal considers the amendment is "appropriate" is a question of discretion and that is not a jurisdictional fact.
4. Notwithstanding all this, we still consider there is a jurisdictional issue to be resolved, but it is not a question of jurisdictional fact as that doctrine was described in Becton or Tarwin Valley Coastal Guardians.

Is there power under section 87A to transform a permit?

1. When interpreting any power conferred by statute, regard must be had to the words of the statute itself. The power conferred on the Tribunal by section 87A is the power to cancel or amend a permit. It is not a power to transform a permit so that what results is something completely different.
2. The word "amend" in section 87A must be interpreted in the context in which it is used: i.e. to amend a permit. We do not consider that we should interpret the power to amend a permit by reference to other parts of the Act which deal with preparation of an amendment to the Victoria Planning Provisions (section 4B) or the amendment of planning schemes. The extent of change that may occur in the case of such amendments is different to the extent of change that may occur when a specific permit or application for permit is amended.
3. We do not consider that the definition of "amendment" in the Act, which includes addition, deletion or substitution, changes our view. An amendment may occur through or by way of addition, deletion or substitution, but these words describe how an amendment may occur not the extent of the change that may occur.
4. To understand the extent of change that may occur, it is necessary to have regard to the context in which the word is used and the meaning of the word in that context. In this context, we consider there is a well established distinction between the concept of amendment and transformation.
5. This concept of transformation compared to amendment was articulated in Addicoat v Fox (No 2) and has been widely applied in planning decision making ever since. Bestway is an illustration. So too is Becton, where Morris J observed, "the power to approve an amendment to plans is a broad power; but it is not a power which would extend to the approval of plans which transformed the development shown on the plans which had been approved under the permit."[24]
6. We do not consider the fact that Addicoat was dealing with an amendment to a permit application means that the principle enunciated is any less applicable to an application to amend a permit.
7. We do not agree with the applicant's contention that the scope for third party participation is relevant to the issue of whether there is a fundamental distinction between amendment and transformation. The opportunities for participation in the various processes provided for under the Act to amend permits, as discussed in Bestway, support the principle that the ambit of change that may be made to a permit under any of these provisions may be quite substantial and may include changes to any of the things allowed by the permit, its conditions or even the land description. However, the power conferred remains a power to amend the permit (or cancel it). It is not a power to transform it in the sense describe by Brooking J in Addicoat.
8. It is relevant to note that in Addicoat, Brooking J was clearly referring to the Tribunal's power, as distinct from discretion, to grant a permit in respect of a use or development which differs from the use or development the subject of the application for a permit so radically that the decision cannot be supported as an exercise of the power to direct that the permit applied for be issued subject to conditions. He held that the Tribunal did not have such power, either independently or by virtue of various provisions then in the Town and Country Planning Act 1961.
9. We do not consider it is necessary to read down what Brooking J says about the Tribunal's powers because the statutory framework may now have changed or to confine his remarks only to situations involving the amendment of permit applications rather than applications to amend a permit. Throughout his decision, Brooking J focuses on the principle that there is a need to distinguish "between modification, which is permissible, and transformation, which is not."[25]
10. For these reasons, we say that the Tribunal does not have the power to transform a permit under section 87A.
11. There is a further reason why we say that the power to amend a permit under section 87A does not confer a power to transform the permit. This arises from consideration of the decision in Fosters Group Ltd v Mornington Peninsula SC[26].
12. As noted earlier, the Tribunal held in that case that a permit can be amended so as to permit use and development which would be otherwise prohibited under the planning scheme, but a permit cannot be amended to include a new prohibited use. The decision contains an extensive discussion about the power to amend permits. In reaching the conclusion that the power to amend a permit does not include a power to include an additional prohibited use or to change a permitted use to a prohibited use, the Tribunal said that this would enable the planning controls in a planning scheme to be circumvented. All it would take to obtain a permit for a prohibited use would be to obtain a permit for a permitted use and then apply to amend the permit, or apply to amend any existing permit.[27]
13. Just as the Tribunal held in Fosters Group Ltd that there are constraints on the way in which permits may be amended for good public policy reasons, so we consider there are good public policy reasons for finding that a permit cannot be amended if it will result in a transformation.
14. One of the objectives of the planning framework established by the Planning and Environment Act 1987 in section 4(2) is:

(f) to provide for a single authority to issue permits for land use or development and related matters, and to co-ordinate the issue of permits with related approvals;

1. The whole structure of the Act and planning schemes established under the Act is based on the permit being the primary means of approving use and development of land.[28] The Act sets out detailed provisions governing applications for permits, the amendment of permit applications before decision, giving notice of permit applications, making decisions about such applications and rights of review. Once a permit is granted there are powers to amend the permit under sections 72, 87 and 87A, or to amend plans or other details under the permit by way of secondary consent where a power to do so is conferred by a permit condition. The rationale for such powers in order to enable the planning system to function efficiently in the real world has been discussed in decisions such as Westpoint Corporation Pty Ltd v Moreland CC[29], Australian Slate-Crete Supplies v Casey CC[30], Bestway v Monash CC[31]. As the Tribunal said in Bestway:

[18] Permits are an integral aspect of Victoria's planning system. They are the means by which most use or development of land allowed under a planning scheme is authorised. They are documents of significant commercial value to their holders; they define rights and obligations; and they may be enforced by a responsible authority or any person. The resources that are invested by permit applicants, responsible authorities, referral authorities and third parties in the grant of permits are considerable in terms of time, effort and money, and the process can be most complex. I do not consider that the Tribunal should add unnecessarily to that complexity where it can be avoided. It is important to recognise that the practical administration of the planning permit process must occur within the context of the real world. As the Tribunal said in Mentone Mansions Pty Ltd v Kingston CC [32]:

[14] ... Most planning projects undergo a design and development process which takes a considerable time, and the planning approval phase is early in that process. As a consequence, after planning approval the development of a design for construction purposes, and the construction process itself, can result in a need to amend the development no matter how well resolved the development is at the planning stage. ...

[19] The planning system needs to be able to cope efficiently with such changes or other subsequent changes to the use or development of a site for whatever reason. It is important that changes are handled in a way that addresses their substantive merits; ensures that when eligible third persons may be genuinely affected, they are notified and given an opportunity to be heard; and that applications are processed and decisions are made about changes efficiently and in a timely way. The reforms to the Planning and Environment Act 1987 by the introduction of Division 1A and section 87A enables these objectives to be achieved by focussing on the proposed changes, rather than re-opening debate about the whole proposal. Importantly, what happens on a site, can be managed through a single permit document, which is a more transparent process and less likely to result in inconsistencies than having multiple permits for the same site accumulate over time.

1. However, where the ambit of changes proposed result in a completely different proposal - a transformation - the structure of the Act contemplates that a new permit application will be made. If this were not so, then a single permit issued for one thing could be constantly changed over time for other things having little or nothing to do with the previous use or development permitted. This has implications for existing use rights and for compliance with current provisions of the planning scheme. In our view, it is contrary to the purpose of the Act as evidenced by the framework for dealing with permits set out in the Act.

1. Therefore, we find that whilst the Act enables a permit to be amended, 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 a 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.
2. As previously noted, the requested changes will remove all residential components, the restaurant and the office space, and convert seven individual shop tenancies into single supermarket. The proposed built form is completely different in scale, design and typology.
3. The applicant encouraged us to have regard to the similarities between the two proposals rather than the differences. However, apart from the fact that each development will include the use shop, for which no permit is now required, we find no similarities between the proposal authorised by the permit and the new proposal in terms of mix of uses or the form and scale of the development.
4. Thus, we find that the extent of the changes proposed in this application will result in a different permit as opposed to a modified permit. In other words, there will be a transformation of the permit. As a consequence, we find that we have no power to make the changes requested pursuant to section 87A.

1. The applicant submitted that rather than determining the Tribunal lacks jurisdiction under section 87A to amend a permit, which results in a transformation, the better view is for the Tribunal to exercise its discretion in such cases to find that it would not be appropriate to amend the permit.
2. For the reasons we have given and the clear distinction between the power to amend compared to the discretion to amend identified in Addicoat, we do not support this contention by the applicant.
3. However, if we are wrong in law that we do not have the power to amend the permit because it will result in a transformation, we find in the exercise of our discretion that it would not be appropriate to amend the permit. We consider that the changes are so significant that it would be more appropriate to require a fresh application for a permit to be made.

1. We find strong strategic support in the Scheme for this proposal in a Neighbourhood Activity Centre[33] and note a number of key outcomes sought under State and local policies[34] will be achieved including the following:
   • Concentrating major retail developments into an activity centre and contributing to a vibrant and viable centre.
   • Maximising retention of retail expenditure within the activity centre and the municipality.
   • Supporting and enhancing the role and function of the centre to meet local convenience needs.
   • Provision of retail activity at ground level that engages with activity on the street.
   • Facilitation of day and evening activity.
   • Reduction in the number of private motorised trips by contributing to a concentration of activity that generate a high number of trips in an accessible activity centre and allows for access by walking, public transport and cycling.
2. Both State and local policy contain objectives that seek mixed use developments in activity centres and specifically seek higher density housing at upper levels that contributes to housing choice in locations with good access to services and facilities. We acknowledge the proposal does not accord with these directions. However, on balance we find that the contribution a supermarket will make to the vitality and business synergies of the centre combined with the difficulties in achieving upper level built form justify the lack of contribution to urban consolidation objectives. Under the current DDO18 that applies to the review site mandatory heights of 8m for a street wall and 11m for overall building are set. The same mandatory controls are proposed under Amendment C108[35] that includes the land under DDO16. These height restrictions combined with a sloping site and the necessity of achieving floor levels that respond to the SBO, make achieving upper levels problematic.
3. There are important policies and provisions relating to car parking, amenity and built form including heritage that are relevant to our consideration and we address these matters in the following sections.

1. Council submits that the proposed design will be a satisfactory response to the context of the review site, subject to revisions that include a setback of the building above the heritage fabric of 138 Union Road, reduction in street wall height to 8m and altered window treatments. Respondent objectors criticised the building for being 'box like' with no opportunity for landscaping.
2. The applicant submits that the proposal represents a well considered balance between retention of existing heritage facades and new construction presenting well to the street.
3. We address each interface in making our findings on built form.

1. To this street frontage the proposal presents with a two storey built form to the corner with Union Road with glazed shopfronts at the ground level and a metal screen enclosing the upper level. A clock is proposed to the upper level near the corner. Further west towards the rear right of way the building is single storey and presents with service features including substation, stair entry to basement levels and the two way vehicle entry to the basement car park.
2. We find the presentation to Sunbury Crescent acceptable subject to insertion of windows at the upper level. The building achieves pedestrian entry at grade to the corner, provides active frontage for part of the ground level and includes a mix of external materials that will create interest to the street. Whilst there are sections of blank wall that create a poor ground level interface we accept the necessity of accommodating practical elements necessary for a building of this type and consider they have been acceptably placed.
3. We agree with Council that inclusion of upper level windows facing Sunbury Crescent would add to the perception of passive surveillance, an outcome sought by various provisions of the Scheme and particularly appropriate diagonally opposite a railway station. The inclusion of a clock element creates a marker to the corner.
4. It is unfortunate that the mandatory nature of the height controls under DDO18 preclude a higher architectural feature at the intersection of Sunbury Crescent and Union Road, which would create a landmark element at this prominent corner. Good urban design principles would support such a feature.[36] We doubt that just a clock will sufficiently emphasise the corner when viewed from across the road or railway line. Whether there is any possibility of utilising the opportunity to exceed the maximum streetwall height to accommodate roof top services that are hidden from view from any adjoining public space or designed as architectural roof top features[37] is a matter for the applicant to consider when preparing revised plans for a fresh permit application.
5. It is important, in our view, to maintain the active frontage to the street by ensuring the majority of the glazed shop fronts remain open to the street and are not screened by advertising, opaque materials or internal placement of fittings. Our inspection of a similar sized supermarket in Fitzroy demonstrated the advantages of being able to gain views both in and out of the front windows at eye level in achieving activation with the street. We consider this matter can be addressed by permit condition.

1. We find the presentation of the development to Union Road appropriate except at the northern end where it adjoins the Moderne styled building on the review site at the Croydon Road corner. The positive design features include the following:
   • A continuous street wall is proposed incorporating extensive shopfronts that will create an active frontage and contribute to the vitality of the centre. As referred to earlier it will be important that the glazed shop fronts remain open to the street to allow ongoing engagement with the street.
   • Retention of heritage facades of 126 and 130 Union Road which are designated as contributory heritage buildings together with new buildings designed to be responsive to the heritage context in terms of height, window proportions, rhythm of buildings and finishes.
   • Clearly defined entry to the supermarket at the corner of Union Road and Sunbury Crescent with a second entry to the Union Road frontage providing good connections for pedestrians, perceptions of safety and improved connectivity within an activity centre divided by a railway line.
   • The location of vehicle access to the basement car parking off Sunbury Crescent and access to loading bay via Croydon Road avoids disruption to pedestrian activity or loss of the fine grain shop front pattern to Union Road and contributes to an enhanced public realm along the main retail street in the centre.
   • Provision of extended canopies over the footpath will provide weather protection for pedestrians, although we agree that the canopies should generally be connected as sought by Council.
2. We do not share Council's concern about the height of the infill building at 132 Union Road. This new section of building is to adjoin the retained heritage facades at 126-130 Union Road and at 9.1m will be similar in height to the retained parapets. We find this height sits comfortably in the street, does not protrude above or detract from the retained heritage facades and has some function, as put by Mr Raworth, in contributing to a perception of the buildings as a three dimenstional entity rather than a 'skin deep' façade.
3. However as the proposal will not be dealt with as an amendment to the existing permit, compliance with the mandatory street wall height of the 8m as required under the current DDO18 will be necessary. We think this can be achieved by lowering the height of the infill building to 8m which will match the height of the horizontal banding in the parapet of 126 Union Road and still result in a sympathetic response to the heritage context. Whilst there may be some visibility of the retained heritage façade and the new roof form, this will be from limited vantage points and will not adversely impact on the streetscape or the heritage fabric
4. We note that DDO18 ceases to have effect after 31 July 2014. A new DDO16 is proposed to apply to the review site under Amendment C108 and as exhibited, proposes to retain the mandatory 8m street wall height. Depending on the timing of any new application for development of the review site and the final form of Amendment C108, the height of the street wall may have to be 8m; an outcome we consider can be accommodated, as referred to above.
5. The presentation of the proposal to the northern corner of the Union Road frontage and to the Croydon Road frontage we find problematic as addressed next.

1. At the corner of Union and Croydon Roads is a single storey Moderne styled building with distinctive banding, windows and corner elements identified as contributory to the heritage place. An extension to the original building extending west along the Croydon Road frontage is similar in brickwork and fenestration and described by Mr Raworth, in heritage evidence, as sympathetic with subtle differentiation between the new and original building.
2. The plans show retention of the façade of the building with a metal clad wall of between 1.4 and 2.5m in height extending above. The wall above the retained façade is to be profiled metal cladding with expressed seams. It was the heritage evidence of Mr Raworth that the additional wall would achieve the appearance of a secondary element and result in a positive outcome for the site and precinct in terms of heritage considerations. Existing windows to the building are to be retained but those currently with clear glazing will be covered with opaque film.
3. The review site is within a Heritage Overlay[38] and the corner building on 138 Union Road is identified as contributory. There are various scheme policies and provisions[39] that guide our consideration of new development in a heritage context. It is our view that the proposed treatment to the contributory building at 138 Union Road will detract from the heritage qualities of the building and the streetscape.
4. The Moderne building at 138 Union Road turns the corner into Croydon Road in an attractive manner and presents prominently to the Union Road streetscape, despite screening provided by substantial street trees in both streets. Whilst finding the retention of the façade an appropriate heritage response, we consider the proposed wall extension above presents as a discordant and dominant element that fails to appear as a secondary element to the contributory building. The corner element to this building is a distinctive feature that needs to stand proud of the building and retain its three dimensional character, an outcome not achieved by the proposal.
5. An inspection of some of the sites referred to by Mr Raworth has been undertaken to gain an understanding of the appearance of seamed metal wall finishes and we have viewed the photos provided. We are not persuaded by these examples (all of which have some contextual or built form differences from the proposal before us) that the treatment is sufficiently well resolved to provide an appropriate response to the heritage fabric in this proposal. In some of the examples viewed, the use of seamed metal finishes achieved an acceptable response due to physical separation from the original heritage fabric, significant elevation of the new material above street level or setback from the heritage façade, factors that are not evident in the current design.
6. We acknowledge the windows of the corner building are proposed to be obscured since they are effectively located with sill heights at the supermarket floor level and this elevated floor level arises due to various constraints. These constraints include a sloping site, the requirement to address the SBO that applies to part of the site, the need to provide pedestrian entry at grade and provide a single floor level for a supermarket. However, we consider the placement of screening on two windows facing Union Road and three windows facing Croydon Road creates an unacceptable interface with the footpath in these roads.
7. We consider there is an opportunity, with imagination, to develop the overall site in a manner that takes advantage of the corner portion of 138 Union Road, results in the extended wall being secondary to the heritage fabric especially in the view to Union Road, retains clear glazing to windows and engages with the streetscape.
8. For example, a small café on this corner might be one way of retaining use of the doorway on Croyden Road and activating this corner. Whatever solution is found ought ensure that the corner of the existing building retains its current integrity.

1. The elevation to the west presents with a blank wall up to a height of 9.2m. External finishes comprise concrete panels painted in various colours, and sections of metal cladding extending from the side street presentations at roof level.
2. Although the west elevation presents with a bulky built form we consider this acceptable for the following reasons. The building is setback from the adjoining residential property by the right of way that provides a minimum separation of 6m with some parts of the wall setback further. A high fence divides the adjoining residential property from the right of way. The house on the adjoining property is oriented north towards Croydon Road and to the south rather than to the right of way. The western wall will have some articulation provided by variations in setback and different coloured panels. The right of way forms the boundary between land zoned residential and land zoned commercial where there is an expectation of robust built form. Importantly there is no unreasonable shadow or privacy impacts to the adjoining residential property. Taken together these factors, in our view, justify the extent and height of the proposed western elevation.

1. Respondent objectors raised concerns about noise and disturbance from deliveries, roof plant and activity associated with the supermarket, trolley management, security especially in the rear lane and lighting impacts. Addressing each of these issues in turn we find as follows.
2. Noise emissions from increased activity on and associated with the review site will occur. The design of the loading bay incorporates a solid 9m high wall to the west side of part of the loading area that will limit noise emissions. This design feature together with a restriction on hours of deliveries imposed by permit condition will, in our view, ensure that noise impacts to nearby residential properties will not be unreasonable.
3. The limits on hours for deliveries were the subject of discussion at the hearing. Mr Delaire, in providing expert evidence on acoustic matters, recommended that if there was an impact from delivery operations inside habitable rooms of the nearest affected residential property at 112 Croydon Road outside the recommended schedule of EPA Publication 1254, then hours of deliveries should be limited to between 7am and 10pm Monday to Saturday and 9am to 10pm Sundays and public holidays. It was Mr Delaire's evidence that the potential impact from deliveries can only be properly assessed when the delivery activities are occurring. It is our view that the hours ought to be limited to those referred to above with potential for amendment if noise impacts beyond those hours can be demonstrated to be acceptable. Any condition ought be certain as to the hours of operation, but with opportunity for amendment if appropriate.
4. We accept the recommendation made in the evidence of Mr Delaire that waste collection should be confined to the SEPP N-1 day period between the hours of 7am to 6pm Monday to Friday and 7 am to 1pm Saturday. We are satisfied that noise from mechanical services can be appropriately limited by a combination of location, solid screening and use of low noise equipment, all of which can be addressed by permit condition.
5. Increased noise in the area generally arising from increased traffic and pedestrian activity we consider an acceptable outcome in an activity centre, associated with use of land zoned Commercial 1 where the creation of vibrant centres are sought and shop is a use that does not require a permit.
6. Any lighting of the rear right of way can be appropriately designed to limited adverse impacts to adjoining residential properties and trolley management can be addressed by a permit condition requiring a trolley management plan to the satisfaction of Council. Insofar as security issues are a concern we find that the increased activity associated with the use, the active street frontages to Union Road and part of Sunbury Crescent will contribute to a sense of public safety. We agree with Council that passive surveillance and the perception of public safety would be increased with the provision of south facing windows to the upper level of the office facing Sunbury Crescent and improved activation of the northern elevation with the inclusion of clear glazing to the north facing windows. To the rear right of way Council seeks windows to be included overlooking the loading dock to improve passive surveillance. We agree some passive surveillance would contribute to perceptions of public safety but consider this could also be achieved by a security system such a video cameras. We are satisfied that this matter can be addressed to the satisfaction of Council, noting that privacy of the adjoining residential property at 112 Croydon Road must be considered in design.
7. Although not raised as specific amenity concerns, it is relevant to our finding the proposal acceptable that there would be no unreasonable overshadowing or loss of privacy to nearby residential properties and the built form presentation to the west is acceptable at the interface of residential and commercial zones given its relatively limited height and the separation distance provided by setbacks and the laneway.

1. Respondent objectors raised concerns about adverse impacts arising from increased parking demand on nearby residential streets, additional traffic in the area and additional truck traffic associated with loading and waste collection.
2. It is relevant to our findings that subject to imposition of a number of permit conditions relating to management of delivery vehicles, alterations to the laneway and car parking layout, Council found the car parking proposed appropriate, the traffic likely to be generated capable of being accommodated in surrounding streets and impact of additional truck movements acceptable.
3. We address the issues as follows.

1. A total of 84 car spaces are proposed in a two level basement accessed off Sunbury Crescent. The Scheme specifies a car parking provision of 5 car spaces per 100m2 of leasable floor area. Application of the ratio results in a requirement for 92 car spaces, thus a waiver of eight car spaces is sought. We are satisfied that such a waiver is acceptable having regard to the following.
2. Mr Walsh gave evidence that the development is expected to generate a peak parking demand for between 74 and 92 car spaces inclusive of staff demands, a position shared by Council traffic engineers.[40] The proposed 84 spaces is within this range with a maximum reliance on street parking for 8 car spaces, an outcome we find acceptable.
3. The car parking deficiencies associated with the previous use of the land is a relevant consideration.[41] In the evidence of Mr Walsh the printing business that previously occupied the review site was estimated to generate a demand for up to 30 car spaces on street. The current proposal will result in less demand for on street parking, even allowing for removal of four car spaces in Sunbury Crescent, a matter we address later.
4. The location of the review site near the Surrey Hills railway station and within an existing activity centre with other services and facilities provided will result in multi purpose trips that limit the generation of additional parking demand.
5. The excellent availability of public transport means a number of trips to the supermarket will be by train, especially for staff, further reducing anticipated parking demands.
6. The provision of bicycle parking for staff together with a staff shower and change area supports access to the site by bicycle.
7. We acknowledge concerns of objectors in Croydon Road about limited availability of on street parking for resident use as a result of the supermarket. Non-resident parking on residential streets in locations near an activity centre and a railway station is common. We note that there is currently some time restricted parking in Croydon Road and would anticipate that Council would monitor the need for this to be extended or altered if necessary.

1. The proposed basement car park is accessed off Sunbury Crescent which will result in increased traffic to this road and particularly to the intersection of Sunbury Crescent and Union Road. Delivery and waste collection vehicles will access the site from Croydon Road, utilise the rear lane and egress via Sunbury Crescent. It is our view that the increased traffic that will be generated by the supermarket can be accommodated by the existing road network. We say this having regard to the following factors:
   • The supermarket will result in a traffic generation of approximately 239 traffic movements during peak operating hours that will be split between largely evenly split between inbound and outbound movements. Approximately 95% of the traffic will be generated to/from the north and south along Union Road with some 5% arriving and departing to the west along Sunbury Avenue.[42]
   • The evidence of Mr Walsh, having undertaken traffic volume surveys of the Union Road/Sunbury Crescent intersection and analysed the operation of the intersection, that the additional traffic volumes anticipated can be comfortably assimilated at the intersection.
   • Whilst traffic queues and delays will inevitably be exacerbated at times when the railway level crossing is closed, these will not be beyond what is reasonable and is an existing limitation associated with any traffic generated from the review site.
2. Sunbury Crescent is a two way road with a trafficable width of approximately 6m and kerbside parking on the north side. We agree with Mr Walsh that removal of the four car spaces adjacent to the review site frontage between the access and Union Road is necessary to ensure traffic flows and allow for adequate queuing at the intersection. Whilst this is a matter for Council as manager of the road, we consider the absence of two way traffic flow in front of the site would be unacceptable.
3. We think the layout with access to parking from Sunbury Crescent will confine the bulk of additional traffic to that road accessed from Union Road. We acknowledge that local residents may use circuitous routes to access the supermarket that will increase traffic on local streets but are not persuaded that this will be beyond the capacity of those streets. Furthermore we note that there is opportunity for Council to investigate the need to limit or slow traffic in residential streets through various traffic calming devices if this becomes necessary.

1. A loading dock is proposed at the rear of the site adjacent to the right of way that runs between Sunbury Crescent and Croydon Road. It is proposed that delivery and waste collection vehicles will access the laneway from Croydon Road and exit along the laneway to Sunbury Crescent. It is intended to limit the size of vehicles to medium rigid vehicles which have a length of approximately 9m.
2. We find the access arrangement appropriate allowing delivery and waste collection vehicles to enter and exit the site in a forward direction, with reverse manoeuvre required only to access the loading dock. Some alterations to the grade of the southern portion of the right of way are appropriate to accommodate the vehicles which can be addressed by a permit condition.
3. The deliveries will result in additional traffic in Croydon Road, east of the laneway. We were advised that the supermarket will receive in the order of 15 deliveries per day based on the delivery activity at the Coles in Johnston Street Fitzroy which is of similar size. It is our view that the road network is capable of accommodating this level of additional traffic and that the anticipated generation of delivery vehicles is acceptable in an activity centre location. A permit condition that addresses the size of delivery vehicles and limits times of deliveries can be imposed, a matter we dealt with under amenity impacts.

1. A supermarket on the review site will positively contribute to the vitality of the Surrey Hills activity centre, provide convenience shopping for residents in an appropriate location and can be accommodated without unreasonable impacts on amenity, car parking availability of traffic flows. We consider that subject to alterations to the proposal to address the heritage values of 138 Union Road, an appropriate built form can be achieved.
2. However, for the reasons we have given, we find that we have no power to make the changes requested pursuant to section 87A. The applicant should lodge a fresh planning permit application for the proposal.

[1] [1979] VR 347; [1979] VicRp 37

[2] At the time of the application for permit the land was zoned Business 2. Amendment VC100 gazetted 15 July 2013 included the land within a Commercial 1 Zone.

[3] We gave leave for Mr Raworth to suggest examples of where treatment of levels above a heritage building is similar to that proposed. Information to this effect that included photographs and some addresses was served on the Tribunal and all parties after the hearing accompanied by a letter from Norton Rose Fulbright dated 28 February 2014.

[4] We have considered all submissions and evidence presented by the parties and Statements of Grounds although we do not recite all of the contents in these reasons.

[5] Union Central Pty Ltd v Boroondara CC [2012] VCAT 656

[6] [2012] VCAT 656

[7] Fosters Group Limited v Mornington Peninsula SC (includes Summary) (Red Dot) [2010] VCAT 104

[8] [1979] VR 347; [1979] VicRp 37

[9] [1979] VicRp 37; [1979] VR 347 at 363

[10] [1979] VicRp 37; [1979] VR 347 at 363

[11] [2008] VCAT 860

[12] [2008] VCAT 860 at [17] and [20]

[13] [1979] VicRp 37; [1979] VR 347 at 363

[14] My comments about the amendment of permits under Division 1A apply equally to amendments under Division 3 applied for by the permit holder. Each process is similar in that it allows procedural fairness to be accorded to affected persons. It would be inequitable, not to say highly confusing, if a different approach was to be taken and different outcomes were to arise depending on whether a permit had been issued at the direction of the Tribunal or not.

[15] [2003] VCAT 1077

[16] [2000] HCA 5; (2000) 199 CLR 135 at 148

[17] [2010] VCAT 1226

[18] [2005] VCAT 1049

[19] Timbarra Protection Coalition Inc v Ross Mining NL and Others [1999] NSWCA 8; Cabal and Others v Attorney -General of the Commonwealth [2001] FCA 583

[20] A Aronsen & B Dyer, Judicial Review of Administrative Action (2nd ed 2000)

[21] [2000] HCA 5; (2000) 199 CLR 135

[22] Melbourne CC & Ors v Minister for Planning and Becton Corporation Pty Ltd [2003] VCAT 1077

[24] [2003] VCAT 1077 at [80]

[25] [1979] VicRp 37; [1979] VR 347 at 365

[26] [2010] VCAT 104

[27] [2010] VCAT 104 [87]

[28] Permits can also approve other non use and development matters, such as the variation or removal of easements or restrictions.

[29] [2005] VCAT 1049 at [33]

[30] [2008] VCAT 6 at [28] - [29]

[31] [2008] VCAT 860 at [16] - [23]

[32] [2000] VCAT 1947

[33] The Surrey Hills centre is identified in local policy as a Neighbourhood Activity Centre Level 3 at clause 22.10 of the Scheme.

[34] At clauses 11.01-2, 11.04-2, 17.01, 21.08, 21.12 and 22.10 of the Scheme.

[35] This amendment seeks to include built form controls for all Neighbourhood Shopping Centres. It was exhibited in May 2013 and considered by a Panel in November 2013. Subsequent to the hearing, the Panel report has been submitted to Council.

[36] Clause 15.01-2 Boroondara Planning Scheme

[37] Clause 2.0 Schedule 18 to the Design and Development Overlay

[38] Amendment C49, gazetted on 29 November 2012, applied HO532 to the review site and the wider Union Road commercial precinct.

[39] Including at Clauses 15, 21.05, 22.05, 43.01 and 65.

[40] As referred to in the Boroondara City Council Delegated Report on Request to VCAT for Section 87A Amendment dated 23 January 2014.

[42] Based on surveys and assumptions referred to in the traffic evidence of Mr Walsh.