1. The preamble to the Permit for the Burge Land, issued at the direction of VCAT following the decision in Ferndale Cottage, states that:

• Development of alterations and additions to the existing dwelling and associated works (including modifications to site boundary fencing) in the General Residential Zone.
• Removal of vegetation in the Vegetation Protection Overlay Schedule 1.

1. The reference to the General Residential Zone in the permit preamble is a bit of a misnomer as, although the land is within that zone, the relevant permit triggers for the buildings and works were a Design and Development Overlay and a Heritage Overlay.
2. The relevant part of Condition 1 of the Permit states that:

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and 3 copies must be provided. The plans must be generally in accordance with the plan submitted with the application and supplemented by the additional information shown on the plan dated 27/4/2016 provided in response to the Tribunal's Interim Order of 30 March 2016, but modified to show:

(d) The pantry window modified to have a sill height of 1.7 metres above finished floor level.

1. The layout of the land, the size and type of the dwelling additions, including the materials of construction, on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.
2. It can be seen initially that:
   • the Permit preamble itself refers to the endorsed plans;
   • once endorsed under Condition 1, the plans form part of the Permit; and
   • the endorsed plans were required to show the pantry window modified to have a sill height of 1.7 m.
3. Condition 2 nonetheless contains a common type of permit condition that provides a mechanism for certain aspects of the proposal shown on the endorsed plans to be modified with the written consent of the Council. This is known as a 'secondary consent' process.
4. It is the use of Condition 2 to facilitate a change to the pantry window, without Cook's knowledge and at least arguably contrary to the intent of the VCAT decision in Ferndale Cottage and/or the initially endorsed plans, which lies at the heart of these proceedings.

1. Cook alleges that, in purporting to use a secondary consent process for the endorsement of the Amended Plans, rather than an application to amend the Permit under s 72 of the PE Act, the Council was acting unlawfully, and contrary to the third and fourth Westpoint criteria, in that:
   • the change to the window is contrary to a specific requirement within the Permit, which cannot be altered by secondary consent; and
   • the change to the window is of material consequence having regard to the purpose of the planning controls under which the Permit was granted.
2. The 'Westpoint criteria' take their name from the decision in Westpoint Corporation Pty Ltd v Moreland CC.[4] I will return to these criteria later in these reasons.
3. Cook alleges specifically in the Declaration Proceeding that, in approving the Amended Plans by way of secondary consent:
   • the Council acted ultra vires;
   • the Council failed to take into account a relevant consideration; and/or
   • the Council acted unreasonably in a Wednesbury sense[5], in making a decision that was so unreasonable that no Council acting reasonably could have made.
4. The response from the Council and Burge centres primarily on a number of propositions:
   • Condition 1(d) was satisfied and 'spent' following the initial endorsement of plans, and contained no ongoing requirement;
   • the secondary consent available under Condition 2 operates independently of Condition 1; and/or
   • the Council (or its delegate) acted reasonably in granting the secondary consent for the Amended Plans on the basis that:
     1. the window approved under secondary consent was a new and different window to that dealt with under Condition 1(d); and
     2. there was a relevant change of circumstances, and a proper planning assessment leading to the consent.
5. There are a number of elements to these matters that I will consider in turn.
6. In particular, this proceeding raises a number of matters of principle about the use of two very common types of permit condition, and the interrelationship between them. These are what are known as Condition 1 type conditions (for modified plans to be endorsed), and Condition 2 type conditions (for secondary consent).
7. Because of the way the issues were argued before me, including by reference to the Westpoint criteria and several decisions relevant to the construction of these types of conditions, I will first address these matters of principle.

1. Many planning permits issued in Victoria contain a Condition 1 type condition, through which modified plans are required to be endorsed under a permit in order to address specific planning matters identified during the permit process, with the specific changes required to be shown on the endorsed plans being identified in sub-paragraphs to Condition 1.
2. That is the situation here with Condition 1(d) of the Permit.
3. At a VCAT level, a Condition 1 type condition provides an important mechanism to give effect to changes to a proposed development to address legitimate Council, referral authority and/or objector concerns about a proposal - either as a result of alternative dispute resolution at VCAT, or following a VCAT decision. Without the facility to achieve changes to a proposed development through a Condition 1 type condition, many more permit applications would fail to resolve at a compulsory conference, or would be refused.
4. An objector who participates in a contested permit process, through which a particular modification to plans is included in a sub-paragraph to a Condition 1 type condition to address that objector's concerns, would ordinarily have an expectation that the development will proceed in the modified form, or at least that any material change will be the subject of a transparent process in which the objector (or his or her successor) is involved. To an extent, the integrity of the planning and permit system depends on this.
5. The question is whether that intended purpose of a Condition 1 type condition is in fact the way such a condition is properly to be interpreted.

Was Condition 1(d) 'spent' with the initial endorsement of plans?

1. The Council and Burge contend that Condition 1(d) was satisfied and 'spent' following the initial endorsement of plans, and contained no ongoing requirement that fettered the use of secondary consent under Condition 2 to amend endorsed plans.
2. Two prior VCAT decisions were relied upon in support of this proposition.
3. The Council relied upon 155 Domain Road Pty Ltd v Melbourne CC[6], where Justice Morris had indicated that a non-transforming change to an endorsed development could be approved by a responsible authority pursuant to a condition such as Condition 2, so long as it was also consistent with the permit. It was stated there:

When it comes to determining consistency with a permit, it is necessary to consider not only the words used in the permit, but also the conditions of the permit. In the present case, these conditions include condition 2. Hence this permit envisages that, once plans have been endorsed under condition 1, the development may be altered from that described in those endorsed plans if the responsible authority consents in writing. No doubt a point will be reached when the changes result in development that is outside the scope of what was contemplated by the permit and its conditions, but that point is not reached simply because the changes result in development that is not in accordance with the endorsed plans or, for that matter, that is not in accordance with plans which might be endorsed under condition 1.[7]

1. Both the Council and Burge also relied upon Young v Mornington Peninsula SC[8], where Senior Member Byard had stated:

Conditions generally impose direct requirements or limitations on the use or development for which the permit is granted. Condition 1 type conditions are rather different. Such requirements or constraints as they might contemplate are actually imposed by means of a condition like condition 2 ...

The only obligation that condition 1 imposes is that modified plans be prepared and submitted for approval. The submission of plans is a requirement, if the permit holder proposes to act upon the permit. However, the purpose of condition 1 is to get to the stage of having plans approved and endorsed. Then condition 2 or similar provisions can require compliance with the approved plans ...

The obligation imposed on the permit holder is to submit modified plans to be approved and endorsed by the responsible authority. Having done that, and such approval having been obtained, condition 1 is satisfied and the purpose for which the permit was granted may proceed.[9]

1. In the case before me, these extracts from 155 Domain Road and Young were used to support an argument that there are two different and separate processes involved as between Condition 1 type conditions and Condition 2 type conditions, and with a different ambit of discretion applying in each process - the approval of plans under Condition 1, and the amendment of plans under Condition 2. In particular, it was contended from the last paragraph of the extract from Young that, once plans had been approved under a Condition 1 type condition, that condition was essentially satisfied and 'spent', and did not constrain the use of secondary consent to approve subsequent changes that were not in accordance with the initially approved plans under Condition 1.
2. Even allowing for the fact that the decision in 155 Domain Road was decided under a different planning regime for planning permit amendments[10], I still do not glean from that decision any general proposition that one can effectively ignore Condition 1 in the use of secondary consent under Condition 2, or that Condition 1 is 'spent' immediately following the initial endorsement of plans. Justice Morris is still saying clearly that there will be a point where the changes proposed through secondary consent are outside the scope of what is contemplated by the permit and its conditions. The context is important.
3. Moreover, as was noted by Justice Morris in 155 Domain Road[11], Condition 1 type conditions are specifically recognised by the PE Act. This is still the case. Section 62(2) of the PE Act specifically empowers the responsible authority to impose conditions, including:

(i) a condition that plans, drawings or other documents be prepared by the applicant and lodged with the responsible authority for approval before the use or development or a specified part of it starts; and

(j) a condition requiring changes to be made to any plan or drawing forming part of the application for the permit.

1. As can be seen, Condition 1 of the Permit in the proceeding before me purports to deal with the matters in both ss 62(2)(i) and (j) in the one condition, and this can lead to difficulties with its proper construction. One requirement is for the provision of a set of plans before development starts, in order to provide certainty and a baseline for compliance and the operation of other conditions. The other is requiring changes to the development from what was originally proposed in the permit application, identified in specific sub-paragraphs to the condition.
2. Here Condition 1 of the Permit opens with the words that: 'Before the development starts, amended plans ... must be submitted to and approved by the Responsible Authority'. That aspect of the condition is empowered by s 62(2)(i) of the PE Act and its requirement has arguably been satisfied here. Read in its proper context, it would seem that it was this aspect of the condition that was being considered in Young.
3. However, I do not agree with the Council and Burge to the effect that this is the only requirement of Condition 1 in this case. Condition 1 also expressly states that: 'When approved, the plans will be endorsed and will then form part of the permit.' Whilst this does no more than reflect what is now in the statutory definition of a 'permit', it contemplates that the plans have some ongoing purpose in the administration, enforcement (and interpretation) of the Permit. More particularly, Condition 1 here also expressly refers to VCAT, and to specific modifications required to the application plans. There is clearly an additional requirement served by Condition 1, utilising the separate power in s 62(2)(j) of the PE Act, and requiring specific changes to the plans that will form part of the Permit. This includes Condition 1(d) in relation to the sill height of the pantry window.
4. In my opinion, it cannot be said that this separate and additional requirement is wholly 'spent' upon the initial endorsement of plans. The changes required by VCAT, and included in specific sub-paragraphs to Condition 1, give context and purpose to the permission that has been granted, and are relevant to the proper construction of Condition 1 and Condition 2.
5. Indeed, this was alluded to in Young. Senior Member Byard stated, in relation to the endorsement of plans by a responsible authority under a Condition 1 type condition:

It is obliged to be guided by the modifications required by the sub- paragraphs of such a condition. The approval and endorsement of a plan that was blatantly contrary to important and deliberate requirements in condition 1 might be held to be beyond power and invalid. The way of establishing that situation could be to apply for a declaration. No declaration has been applied for in the present case.

1. In my opinion, this sentiment applies just as much to subsequently amended plans, as to the initial endorsement of the plans. Otherwise, any 'important and deliberate requirements' in the sub-paragraphs of Condition 1 could easily be overridden through the subsequent endorsement of amended plans by secondary consent, and without reference to the person for whose benefit the sub- paragraph in Condition 1 was included. That is what Cook alleges here, and (unlike in Young) Cook has sought a declaration.
2. In my opinion, this sentiment is also supported by the oft-quoted decision in Benedetti v Moonee Valley CC[12]. Benedetti was primarily concerned with the restrictive function of a Condition 2 type condition (i.e. a secondary consent condition)[13], in imposing an ongoing limitation on the modification of the layout of the site or proposed buildings and works. It was noted that, if such a condition was spent upon completion of the development, it would be possible for a building or works to be radically altered, or for important items such as landscaping to be immediately reversed. Justice Osborn noted the 'good sense' of an earlier VCAT observation that such an outcome 'would reduce the planning permit process (whether at a responsible authority level or a tribunal level) to a solemn farce'.[14]
3. In my view, these comments are also applicable, perhaps even more so, to the second aspect of a Condition 1 type condition during the life of a development, where specific changes to plans were required as part of the grant of the permit. It would be contrary to the objectives of the planning framework set out in the PE Act[15] if 'important and deliberate requirements' in the grant of a permit could be easily reversed through a secondary consent process. This includes the situation with Condition 1(d) here.[16]
4. In Benedetti, it was also said that permit conditions are intended to be read sensibly and in a non-technical manner, and that there was nothing in the language of the relevant condition in that case that suggested that it was not intended to have an ongoing effect.[17] The same situation prevails here with Condition 1, and particularly in the case of the sub-paragraphs such as Condition 1(d).
5. Moreover, in the interpretation of a planning permit as a whole, the meaning of the development authorisation is to be determined objectively, including by enquiry as to the meaning that the terms of the authorisation would have to a reasonable person.[18] In my opinion, on any fair reading of the Permit, including Condition 1(d), the development authorisation was constrained by a requirement to avoid or reduce overlooking over the Cook land through the raising of the sill height of the north facing kitchen-pantry window.
6. None of the above is intended to suggest that the permit plans, once initially endorsed, are fixed for all time. It simply adds weight to the view that, absent any material change of circumstances, ongoing regard should be had to the key plan requirements in the sub-paragraphs of Condition 1 upon which the planning permission was initially granted. The important and deliberate requirements contained within Condition 1 are not exhausted or 'spent' following the initial endorsement of plans, and must be properly considered in any amendment of those plans.
7. This would suggest that a change to any important or deliberate requirements would require a formal amendment to the permit under a s 72 process under the PE Act, rather than by way of secondary consent, so that the person for whose benefit the requirement was made is included in the process.
8. In my view, Condition 1(d) should be properly interpreted having regard to this context and purpose.
9. In the preceding discussion, I have used the phrase 'important and deliberate requirements' to adopt the phrase used in Young. What are important or deliberate requirements in a particular permit could depend on the circumstances of a particular case. In some cases, the sub- paragraphs in a Condition 1 type condition may reflect a relatively benign change to a development proposed by the permit applicant during the course of the permit process, and accepted by the Council. However, where a sub-paragraph to a Condition 1 type condition requires specific changes to plans in order to address the specific concerns of a responsible authority, referral authority or objector, or the specific concerns of VCAT on review, that condition obviously reflects a much greater level of importance and deliberation.
10. Here, having regard to the decision in Ferndale Cottage, there can be no doubt that Condition 1(d) was an important and deliberate condition.

1. Despite what I have said about Condition 1 type conditions, many planning permits issued in Victoria also contain a Condition 2 type condition which provides that the use or development shown on endorsed plans shall not be altered or modified without the consent of the responsible authority. The consent aspect of a Condition 2 type condition thus provides an in-built form of secondary consent, through which subsequent changes can be made to plans - ostensibly without the necessity for a formal permit amendment process involving third party rights of review.[19]
2. In Benedetti[20], Justice Osborn stated that a condition in this form (i.e. a Condition 2 type condition) had two purposes:

First, the condition has a restrictive function. It ties the proposed development to a permitted relationship between size and context. Secondly, it has a facilitative function enabling by way of proviso minor modifications of endorsed plans and consequently to the permitted development. The condition does not, however, merely provide for modification of the plans, it provides that the layout of the site and the size of the proposed buildings and work shown on the plan cannot be altered or modified without the consent of the responsible authority.

The practical desirability of a facilitative provision for secondary consent is obvious.

1. I will return later to the concept of the 'restrictive function' tying a proposed development to a permitted relationship with its size and context, and the 'facilitative function' being a proviso to enable minor modifications. I think some important assistance can be derived from Justice Osborn's observations in this regard. Too often a Condition 2 type condition is construed in practice as being just a general secondary consent condition, whereas it is actually worded as a restrictive condition with a limited facilitative proviso. Even in Young, Senior Member Byard had noted that the initial purpose of a Condition 1 type condition was to get to the stage of having approved plans so that a Condition 2 type condition or similar provisions can require compliance with those plans. He too was focused on the restrictive function of a Condition 2 type condition.
2. It is nonetheless the facilitative proviso that provides the basis for secondary consent. However, Justice Osborn noted that his decision in Benedetti was not concerned with the limits of the facilitative function, but rather with its restrictive aspect.[21]
3. As indicated in the last sentence of the extract from Benedetti above, Justice Osborn noted the obvious and practical benefit of a secondary consent process to the workings of the planning system. Similar sentiments have been echoed in many VCAT decisions. The planning, design and construction of a development is a dynamic and lengthy process, often involving multiple professional inputs, a range of regulatory requirements and approvals and/or changing market conditions. Changes to a development are almost inevitable in such a process, no matter how well resolved the development plans are at the planning stage. While significant changes to a development may require a formal amendment to the permit or permit plans, some flexibility is desirable to quickly deal with modifications of a lesser nature. The secondary consent process is intended to facilitate this.
4. Condition 2 type conditions are often drafted broadly - in some cases seemingly allowing any aspect of a development shown on an endorsed plan to be modified through a subsequent secondary consent process. There is nonetheless an acceptance that the use of a secondary consent process is not unlimited, although the 'limits of the facilitative function' identified by Justice Osborn in Benedetti remain undefined.

Does the limited wording of the Condition 2 here even allow for its use?

1. Because there is no express recognition of a secondary consent process in the PE Act, the power to amend endorsed plans through a secondary consent process is not unlimited, and cannot operate inconsistently with s 72 or the PE Act generally. The limits of the facilitative function of such a process must be derived from the permit itself, including any particular wording in the Condition 2 type condition, having regard to its purpose and context, and the usual tests for the validity of a permit condition.[22] It will be evident that I consider that the sub-paragraphs in a Condition 1 type condition will be relevant to that purpose and context.
2. Condition 2 type conditions commonly contain wording to the effect that: 'The use and development as shown on the endorsed plan must not be altered unless with the written consent of the responsible authority'. That was the exact wording, for example, used in the relevant condition in Westpoint. The wording is broad, in the sense that it refers to any use or development shown on the endorsed plan.
3. Here, however, Condition 2 of the Permit is more narrowly worded. It provides that: 'The layout of the land, the size and type of the dwelling additions, including the materials of construction, on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.'
4. Cook argued that the modification to the window, properly considered, was not an alteration to the layout of the land, or to the size or type of the dwelling, or to the materials used in its construction. It was therefore contended that Condition 2 did not authorise the modification of the window by way of secondary consent on this basis alone.
5. Despite the initial attractiveness of this argument, I prefer the view of the Council and Burge on this issue. I do not consider that the specific wording used in Condition 2 was intended to limit the aspects of development that it covered, particularly having regard to the fact that the condition is still worded primarily by reference to its restrictive function, subject to the facilitative proviso. Moreover, having regard to the PE Act, a reference to 'land' includes a building or structure permanently fixed to the land. An alteration to the 'layout of the land' in Condition 2 therefore also covers an alteration to the building.
6. As I have said, the limits of the facilitative function of a secondary consent process must be derived from any particular wording in the Condition 2 type condition, and care is required in the drafting of such conditions. However, having regard to the purpose and context of Condition 2 here, and the definition of 'land', I am not convinced that the wording of the condition, considered alone, precludes any modification of the window.
7. This is of course subject to a consideration of the limited ambit of any secondary consent provision.

1. I turn then to the ambit of the secondary consent process, or what Justice Osborn described in Benedetti as the limits of the facilitative function.
2. As I have indicated, a series of guiding principles has evolved over time concerning the use of secondary consent, with the leading exposition of these arising from the decision in Westpoint[23]. Indeed, the name of that decision now forms part of the planning lexicon in Victoria. In Westpoint, VCAT set out the statement of principles as follows:

When deciding whether a use or development may be altered under a secondary consent provision in a permit, the scale of the change is not relevant per se. The change need not simply be 'minor' to be allowable under a secondary consent provision provided it meets the following requirements:

• It does not result in the transformation of the proposal.
• It does not authorise something for which primary consent is required under the planning scheme.
• It is of no consequence having regard to the purpose of the planning control under which the permit was granted.
• It is not contrary to a specific requirement as distinct from an authorisation within the permit, which itself cannot be altered by consent. [24]

1. The four Westpoint criteria have proven effective in practice over many years. However, they are guiding principles rather than express controls, and they do not provide for a simple and absolute outcome for every application. None of the parties sought to challenge the decision in Westpoint but, as I have noted, it is the application of the third and fourth criteria to the circumstances of this case that is specifically in issue here.
2. The Westpoint criteria themselves reflected some of the discussion and outcomes in earlier VCAT decisions, including for example in Mentone Mansions Pty Ltd v Kingston CC[25], and 155 Domain Road. The decision in Mentone Mansions had made reference to a continuum, whereby informal consents could deal with trivial, minor, or inconsequential variations, whereas more consequential or transforming variations would require an amendment to the primary permission.[26]
3. Westpoint was decided in May 2005, only a week after the commencement of operation of amendments to the PE Act that overhauled the s 72 process, removed the limitation in the previous s 72 to 'minor' amendments, and made the process to amend a permit akin to a permit process. The decision mentions what were then very recent changes, but understandably does not address their potential significance, for example, in the introduction into s 72(3) of a an effective definition of a 'permit' to include plans approved under a permit [27], and the repeal of the previous separate process under s 62(3) to amend plans approved under a permit.
4. Having regard to this definition of a 'permit', and on a literal application of the definition, it could theoretically be argued that any amendment to endorsed plans necessarily comprises an amendment to the permit itself, and can therefore only be achieved through a formal permit amendment process under s 72. If correct, the introduction of this definition would have severely curtailed the ambit of secondary consent to the point where it could never be used to amend endorsed plans. None of the parties advocated for this view, and I also prefer a more purposive and contextual approach.[28] I prefer the view that the definition of a 'permit' simply leads to an outcome whereby, if plans are endorsed or amended through a proper mechanism, those plans then become part of the permit in terms of its ongoing administration and enforcement. This outcome also accords more readily with common industry practice. Moreover, decisions of VCAT and the courts arising after the May 2005 changes to the PE Act have continued to recognise the application and utility of a secondary consent process. This includes Benedetti and the post-2005 VCAT decisions referenced in these reasons.
5. I return to the concept of a continuum that had been referenced in Mentone Mansions - i.e. as between minor or inconsequential variations where for secondary consent may be appropriate, and more consequential or transforming variations that would require an amendment to the primary permission. This concept was also picked up by Deputy President Gibson in APAC Design & Construction v Whitehorse CC[29], where she had stated:

Changes to plans under a permit need to be considered in a context of a continuum. At the lower end there are minor changes that have no external impact and are entirely uncontentious. Changes of this nature are best considered by way of secondary consent without the need for notification, the involvement of third parties or an extensive formal process. At the other end of the continuum are major changes that will have external impacts and affect third parties. Changes of this nature should be considered in the context of an application to amend the permit under s 72 of the Act. This process enables third-party participation in the decision-making process, unlike the secondary consent process.

It is the cases in the middle of the continuum that raise questions about which process should be used. There is no hard and fast rule for determining this. Rather, there are a set of criteria, which the Tribunal has summarised in the Westpoint case, that will provide guidance. It will be a question of judgement in each case as to whether changes to the plans meet those criteria.[30]

1. Since Westpoint, the third criterion set out in that decision has also been clarified, in particular in Zuzek v Boroondara CC[31] as follows:

It can be seen that the third criterion in Westpoint is clearly not directed to consequence or no consequence in an absolute sense but, as the criterion itself states, whether the change is 'of no consequence having regard to the purpose of the planning control under which the permit was granted'. It can equally be seen that, just because a proposed change is relevant to the purpose of the planning control - for example, arising under a decision guideline - that does not of itself automatically rule out use of the secondary consent process. It is a matter of objective judgement as to whether the change is not material or of 'no consequence' having regard to that control, or whether it is of sufficient consequence to warrant a more formal process that potentially introduces third-party participation. Again, the physical scale of the change is not necessarily conclusive of what is or is not 'of consequence, nor is the fact that there may have been an earlier objector who may simply not like the change. A proper consideration or judgement may involve an objective consideration of possible impact or detriment arising from the change, or the extent to which the change will be perceived, or other relevant factors.

1. Importantly, in Zuzek, it was then added[32]:

Moreover, in considering possible impact or detriment, the change must be considered vis-a-vis the permission already granted and the existing plans, rather than by comparison to the 'no permit' scenario. The secondary consent process does not provide a mechanism to re-open more broadly based issues relating to the primary consent given.

1. The clarifications in Zuzek have been applied in many subsequent VCAT decisions, including with additional commentary in Oz Property Group (Flemington) Pty Ltd v Moonee Valley CC[33]. Moreover, in Detour Investments Pty Ltd v Boroondara CC[34] (which I expressed as a 'companion piece' to Zuzek), an arguably minor change to plans (removing a single visitor car space) was found not to be capable of being dealt with by secondary consent, because the car space there was considered to be a matter of material consequence from a planning perspective having regard to its purpose and context.
2. There was a contention from the Council and Burge that the line of decisions that had established the evolving parameters of the secondary consent process supported an outcome that the secondary consent process was not limited to 'minor' changes to a development, and could thus be used to amend endorsed plans without reference to any limitations expressed or implied in Condition 1. I consider that such a contention takes many of those decisions out of context, as is demonstrated by some of the extracts from the cases that I have set out above.
3. In this regard, I return to the comments in Benedetti[35]. A Condition 2 type condition has a 'restrictive function' tying a proposed development to a permitted relationship with its size and context. The 'facilitative function' that allows for a secondary consent process is a limited proviso to this 'restrictive function' to enable minor modifications. Having regard to the decision in Benedetti, the reference to a secondary consent being a 'proviso' allowing for 'minor modifications' is important. Condition 2 type conditions could otherwise theoretically allow for anything to be dealt with under secondary consent. Having said that, I am confident that the reference in Benedetti to 'minor modifications' was intended as a reference to changes being 'minor' in the sense of their materiality or consequence from a planning perspective. This can be gleaned from the facilitative function of secondary consent being a proviso to a restrictive function contained in the same Condition 2 that ties a proposed development to a permitted relationship with its size and context.
4. Moreover, it follows from all of this that there is an inter-relationship between a Condition 2 type condition, and any important or deliberate changes included in a Condition 1 type condition. The changes to a development required in the sub-paragraphs to Condition 1 clearly form part of the permitted relationship between a proposed development and its size and context, to which (following the wording in Benedetti) a Condition 2 type condition is tied.
5. In my opinion, the line of decisions (including Benedetti and the VCAT decisions to which I have referred in these reasons) clearly demonstrate that what is important in assessing the ambit of secondary consent is whether a proposed change to a development or endorsed plans is of material consequence. It is not the scale of change that is important per se, but the issue of possible detriment or impact arising from the change when considered in the context of the governing planning controls and the specific primary permission that has been granted. This is particularly the case in relation to the third and fourth Westpoint criteria.
6. In my opinion, this is not only the correct legal approach to the construction of a Condition 2 type condition, it is also an approach of common sense and common industry practice.
7. I consider that this approach was made clear in relation to the third Westpoint criterion through decisions such as Zuzek, Oz Property, and Detour Investments.
8. In my opinion, the fourth Westpoint criterion is also already clear enough on this point. However, lest there be any doubt or confusion, where the fourth criterion indicates that secondary consent should not be used to change a 'specific requirement as distinct from an authorisation within the permit', that reference includes any specific requirement in a sub-paragraph in a Condition 1 type condition that requires a specific change to the proposed development or plans, and is imposed as an important and deliberate change to address a legitimate Council, referral authority and/or objector concern about a proposal. As I have indicated, this form of 'specific requirement' in a permit condition is expressly empowered (and referenced as a 'requirement') by s 62(2)(j) of the PE Act.
9. Moreover, this requirement is made even more 'specific' where it has been deliberately imposed through a review process - either as a result of alternative dispute resolution at VCAT, or following a VCAT decision. Otherwise, the 'solemn farce' referred to in Benedetti will arise, and the integrity of the planning permit process will be undermined, if these specific requirements can be reversed by secondary consent.
10. Again, I reiterate that this outcome does not prevent a change to endorsed plans, including a subsequent change to a matter required in a sub-paragraph to Condition 1. It is possible that an inconsequential or 'minor modification' that still preserves the intent of the specific requirement could be accommodated by way of secondary consent. However, beyond that, any change to endorsed plans that has the effect of changing the intended planning outcome of a specific requirement in a sub-paragraph to Condition 1 must be dealt with through a proper s 72 amendment process, rather than by secondary consent.

Was 'secondary consent' available to modify the window in this case?

1. I turn then to the use of the secondary consent process in this case. Having set out the principles in a detailed manner above, by reference to many of the cases referred to me by the parties, the resolution of some of the issues in the Declaration Proceeding becomes relatively straightforward.

Is Condition 1(d) a specific requirement within the Permit?

1. Cook alleges that the change to the window is contrary to a specific requirement in the Permit. This directly raises the fourth criterion in Westpoint.
2. It will be apparent from the foregoing discussion that I consider that Condition 1(d) comprised a specific, important and deliberate requirement in the Permit.
3. Apart from the general application of principle in the proper construction of the Permit and its conditions, this view is strengthened in this case by reference to the VCAT decision in Ferndale Cottage that led to the imposition of Condition 1(d).
4. In the lead up to the decision in Ferndale Cottage:
   • Cook had raised the issue of overlooking from the proposed north facing window as a key issue in its application for review to VCAT.
   • VCAT had issued an interim decision indicating concerns with the potential for overlooking from the north facing pantry window, and requesting amended plans.
   • Burge's consultant responded, indicating that the pantry was a non-habitable room that would only be used occasionally and allowed only for oblique views to the Cook land, opposed screening of the window, and requested that (if VCAT was minded to require screening) it would prefer that the window was instead converted to a highlight window with a sill height of 1.7 m above finished floor level.
5. In the decision in Ferndale Cottage:
   • VCAT identified views and sightlines from the pantry window to be a principal issue in the case, and dealt with the matter in detail in the written decision.
   • The VCAT member had conducted a site inspection prior to making his decision.
   • VCAT found that the then proposed window (with a sill height of 1.1 m) would result in unreasonable detriment to the amenity of the occupants of the dwelling to the north by reason of overlooking, in particular to the rear deck of the Cook dwelling. It found this as a matter of general amenity, and that the landscape character and sightlines justified reasonable protection from overlooking beyond the usual 9-metre guideline standard.
   • VCAT considered it appropriate to require the pantry window to have a sill height of 1.7 m (rather than 1.1 m) above finished floor level.
   • As a consequence, VCAT required an additional change to the development proposal, through the imposition of an additional and specific sub-paragraph in Condition 1 - i.e. Condition 1(d).
6. There was perhaps an inference in the way in which the Council and Burge put their submissions in the proceeding before me that both parties disagreed with Ferndale Cottage in the VCAT member's assessment of overlooking, and in the need for protection beyond the usual 9-metre guideline standard. Indeed, the Council went so far as to say that the relevance of the decision in Ferndale Cottage should not be overstated, and if too much weight was given to that decision when considering the modified window, the Council would risk falling into the error of taking into account an irrelevant consideration, or acting unreasonably. I find this Council assertion somewhat surprising, given the significance of the window to the decision in Ferndale Cottage.
7. For present purposes, I simply note that:
   • The decision in Ferndale Cottage was made by an experienced town planner member and was not the subject of any appeal.
   • Burge did initially submit plans for endorsement in accordance with Condition 1(d), showing a modified window with a sill height of 1.7 m.
8. Whilst it is conceivable that others may have reached a different view in Ferndale Cottage, I do not consider it my role in the Declaration Proceeding to second-guess the merits decision in that case. Nor do I consider that it would be appropriate for the Council or Burge to attempt to get around a VCAT decision they did not particularly agree with, through the use of a secondary consent process. I do not however make any formal finding in this latter regard.
9. The intent of the decision in Ferndale Cottage was nonetheless clear. It was to protect relevant parts of the Cook land (in particular the rear deck of the Cook dwelling) from overlooking from the proposed north facing window in Burge's proposed dwelling extension, including overlooking beyond 9 m. The implementation of this was through a requirement to raise the sill height of the north facing window to 1.7 m, given that the Burge's had preferred this outcome to a screening of the window.
10. This was therefore the specific requirement imposed through Condition 1(d).
11. It will be apparent from my discussion of the general principles that I consider that the specific requirement in Condition 1(d) was not 'spent' following the initial endorsement of plans, and continued as a specific requirement in the primary permission that had been granted.

Is the modified window contrary to the specific requirement?

1. The Council and Burge contended that, even if Condition 1(d) contained an ongoing specific requirement, it does not apply to the modified window. They say that the secondary consent process under Condition 2 is being used to amend plans in relation to a new and different window to the pantry window dealt with in Condition 1(d), and is thus unaffected by Condition 1(d).
2. I disagree with this contention. In my view, it borders on being disingenuous.
3. Theoretically, any change to a window creates a 'new' window. But here, the modified window is clearly a replacement window. It is still in the same room, and in the general vicinity of the previous pantry window. It is still a window that services the pantry and the adjoining open-plan kitchen area. It is still unscreened, and still has potential for overlooking to the north given that the sill height has reverted to 1.1 m. The Council officer report refers to it being a 'modification to layout of window'. The Burge's statement of grounds filed in the proceeding refers to a 'change to the location of the window'. The Council's expert witness Mr Glossop conceded that it was in reality the re-located pantry window, albeit now also more clearly servicing the kitchen as well.
4. It is true that the modified window now has a significant westerly aspect. However, this is an additional aspect, and does not detract from the fact that the modified window still also retains a similar northern aspect to the window that it is purporting to replace. Had the replacement window completely deleted any aspect to the north, and provided for a new window only to the west, this may have led to a different outcome - particularly, as the underlying purpose of Condition 1(d) would still be maintained - i.e. to reduce the potential for overlooking to relevant parts of the Cook land to the north.
5. In my opinion, the nature of the change to the window does not take it outside of the intended ambit of Condition 1(d), and the planning purpose for which that sub-paragraph in Condition 1 was imposed by VCAT in the Ferndale Cottage decision. It reintroduces a sill height of 1.1 m to a north facing kitchen-pantry window that is not otherwise screened to reduce the potential for overlooking.
6. It follows that the modified window is contrary to a specific requirement in the Permit, having regard to the purpose of the specific requirement in Condition 1(d). This means that secondary consent could not be used to approve the Amended Plans to facilitate the modified window under the fourth Westpoint criterion.

Is the change to the window of material consequence having regard to the purpose of the planning controls under which the Permit was granted?

1. Cook alleges that the change to the window is of material consequence having regard to the purpose of the planning controls under which the Permit was granted. This directly raises the third criterion in Westpoint.
2. The issues here are a little more complex, as consideration of this allegation requires a broader-based consideration of the purpose of the planning controls affecting the grant of the Permit, rather than a reference to the requirements of the Permit itself. In this regard, the most relevant control is the Design and Development Overlay that created the primary permit trigger, rather than the general zoning or other overlay controls.
3. The Council called expert evidence from a town planner, John Glossop, to the effect that the modified window complies with the requirements of the Design and Development Overlay and the relevant standards and objective in Clause 54 in relation to overlooking, and that the modified window represents an acceptable town planning outcome.
4. I accept that different town planners and different VCAT members could conceivably come to a different view about the underlying planning merits of the modified window, considered in isolation. However, the use of Mr Glossop evidence in this way misconceives the nature of the third Westpoint criterion.
5. The Westpoint criteria relate to the process used to approve the Amended Plans rather than the ultimate merits outcome - i.e. whether it was open to the Council to deal with the matter by way of secondary consent under Condition 2. If not, the proper process would be for Burge to have made application to amend the Permit (and the Amended Plans) under s 72 of the PE Act. As was made clear in Zuzek, the starting point for the application of the third Westpoint criterion is the permission already granted. Any subsequent change must be considered vis-a-vis that permit and the initially endorsed plans, rather than by comparison to a 'no permit' scenario.
6. It follows that the reference in the third Westpoint criterion to 'the purpose of the planning controls under which the Permit was granted' must be considered in the context of the permit that was in fact granted pursuant to those planning controls. For better or worse, the VCAT member in Ferndale Cottage considered and applied those planning controls in a different way to the Council, and in a manner that gave great weight to the purpose of protecting views and sightlines, and in protecting the neighbouring property from overlooking. It was not open to the Council and Burge to ignore the decision in Ferndale Cottage, or the way in which VCAT had interpreted the planning controls in that decision in relation to the relevant window. It is not the case that you can simply start to assess the planning merits of the modified window from first principles, under a secondary consent process that ignores the permission already granted.
7. It is therefore wrong for the Council to contend that its only obligation in the assessment of the modified window was to apply its interpretation of the planning scheme as it saw fit, and to rely (after the event) on a first principles planning assessment by Mr Glossop to justify this. Its obligation was to consider the important and deliberate requirement of the Permit already granted, including VCAT's basis for the imposition of Condition 1(d).
8. I do not presume to determine what the outcome of a s 72 application for the modified window would have been (or might still be) if Cook had the opportunity to object, or if the proposed Amended Plans were the subject of a VCAT review. Mr Glossop's opinion would be relevant to that outcome, in assessing the potential for overlooking from the modified window. But it is not determinative in the Declaration Proceeding.
9. The above comments imply no criticism of Mr Glossop. He was placed in a difficult position in the way his evidence was used in this proceeding. Mr Glossop nonetheless quite properly stated in his evidence that he made no comment on the Declaration Proceeding or the purported use of the secondary consent process, with these matters being outside his area of planning expertise.
10. It follows nonetheless that, having regard to the purpose of the planning controls under which the Permit was granted and (importantly) given the way the purpose of those planning controls was considered and applied by the VCAT member in Ferndale Cottage, the approval of the modified window by secondary consent was contrary to that purpose.

1. Having considered that it was not open to the Council to use a secondary consent process, and before turning to the specific grounds for declaration, it is necessary to look to what the Council actually decided.
2. The Council decision was made under delegation. The officer assessment report and recommendation dated 22 December 2016 was produced by Cook.[36] The document indicates that the decision was approved by a team leader, under delegation, on 28 December 2016, with the approved amended plans then endorsed on 5 January 2017. It is relevant that the Council officer who prepared the assessment report was the very officer who had appeared on behalf of the Council in the VCAT proceeding in Ferndale Cottage only a few months earlier.

1. Clause 2.0 of the assessment report provides as follows:

There is no statutory requirement to give third-party notice of the request for 'secondary consent' amendments.

The changes proposed are also of a minor nature is not to necessitate notifying adjoining land owners/occupiers. The changes also do not conflict with any concern identified by previous objectors.

The changes would in other circumstances have required a S72 amendment however in this instance:

• The land to the west is currently vacant with an existing approval for multiple dwelling (refer to assessment below regarding this).
• The land to the north was the objector at VCAT.
• The land to the north and west is [the same family] bracket and all signed a deed of agreement allowing for a north-western view to be created from the proposal hereby presented. The extract of the agreement is attached.

• According to this, there would be no conflict with regards to concerns from the landowner.

1. What is apparent thus far is that:
   • the Council officer has formed a view that the changes do not conflict with any previously identified objector concerns. No explanation is given for this, and there is no reference to Condition 1(d).
   • the Council officer nonetheless expresses the view that the changes would still require a s 72 amendment but for some specific matters to which he refers.
   • only the additional western aspect of the window has been assessed.
   • insofar as the northern aspect of the window is concerned, the only apparent basis for not requiring the matter to be dealt with under s 72 (and thus for using secondary consent) is the Agreement.

1. The Council officer sets out the following extract from the Agreement:
   1. In the event that Burge and/or Concept Eight apply for permission to introduce windows on the Adjoining Site which provide for a north-westerly outlook towards the wetlands, Cook, her son, Andrew Cook, and her daughter, Lockwood, agree that provided such window(s) are screened using techniques in accordance with ResCode Standard B22 to prevent overlooking (including outside 9 metres referred to in standard to B22) into the existing private open space and/or habitable room windows of 3461 Point Nepean Road or the proposed private open space and/or habitable room windows of proposed Dwelling 1 in the Proposed Development, that they will not object to such window(s).

1. I have sighted the whole Agreement. In general terms, it provides conditionally that Burge would not object to the proposed permit for subdivision and redevelopment of part of the Cook land to the west, on the basis that Cook would not object to any permission sought by Burge for a north-westerly window in the Burge development, provided the window was screened in accordance with Res Code standards. Whilst there are other nuances in the Agreement, the extract above is sufficient to deal with the matter. What can be gleaned from this is that:
   • There was an expectation that Burge would 'apply for permission' for the modified window in a manner that could otherwise have led to an objection by Cook (i.e. a s 72 process, rather than secondary consent).
   • Irrespective of this, Cook's agreement was expressly conditional upon the modified window being screened to prevent overlooking to the north, including beyond 9 metres. This can only be read as the parties agreeing to preserve the intent of the decision in Ferndale Cottage.
2. It is common ground that the modified kitchen-pantry window is not screened either to the west or the north, and Burge has no intention of providing screening to it. The Council officer was well aware of this. The express pre-condition to the operation of this clause of the Agreement was not therefore met. The Council officer has therefore clearly misdirected himself about the Agreement. In circumstances where the Agreement was the only reason upon which the Council officer relied as a basis for not requiring a s 72 amendment process in relation to the northern aspect of the window, the delegate's decision to deal with the matter under secondary consent is clearly flawed.

1. Clause 4.0 of the assessment report is headed 'Officer Assessment' and deals with five issues. Four of these comprise a simple 'Yes/No' response to each of the four Westpoint criteria, and two of these are not controversial in indicating that the proposed changes are not contrary to either of the first or second Westpoint criteria.
2. The report paraphrases the third Westpoint criterion as being: 'Is there an implication for the purpose of the permit and/or applicable planning controls? (Check Yes or No)' with the answer 'Yes (assessed)'. Whilst the question posed is a little different to the actual Westpoint criterion, the answer is nonetheless 'Yes'. This means that the Westpoint criterion is not met, and the matter cannot proceed by way of secondary consent. As indicated earlier, the Westpoint criteria are used to determine the correct process, and should not be confused with the subsequent merits assessment to be undertaken once the correct process has been identified. If there are material consequences (or 'implications' as the Council officer has suggested is the case), this requires a formal s 72 amendment process to be undertaken in order to properly assess those consequences. It is not possible to 'assess' a 'Yes' response as a means of avoiding this outcome. That puts the cart before the horse.
3. The report paraphrases the fourth Westpoint criterion as being: 'Is the proposal contrary to any permit condition? (Check Yes or No)' with the answer 'No'. On the evidence, and given Condition 1(d) and the decision in Ferndale Cottage, I fail to see how the officer could reach this view.

1. The fifth issue dealt with in clause 4.0 of the assessment report follows a pro forma introduction as follows:

Summary of how the proposed amendment does/does not impact on neighbouring/abutting properties.

(The proposed amendment must have NO adverse impact on a third party and MUST NOT conflict with amendments/conditions previously imposed to satisfy an objector's concerns).

1. The capitalisation appears in the report. As can be seen from the wording, it is intended to guide the assessing officer to the correct process. If there is any adverse impact on a third-party or any conflict with amendments/conditions previously imposed to satisfy an objector's concerns, the secondary consent process is not available. Despite this clear warning, the assessment provided is as follows:

Upon assessment of the proposal, and considering the agreement attached above, it is assessed that the change to the window layout does not result in any detrimental overlooking.

It is noted that the layout now create (sic) a window to a habitable room which was not originally part of the assessment as it was included within a pantry.

The proposed dwelling to the north (sic) will have no abutting windows and no secluded private open space that will be affected as noted by assessing the approved plans for the development (attached below).

As such there will be no overlooking resulting from the proposal and the design has incorporated screened by means of the window surround (boxed) which limits view.

Consequently, it is considered the proposal is solely a design perception which will not detrimentally affect adjoining owners or development and is recommended for approval.

1. What is apparent from this is that:
   • Despite the introductory pro forma words, the Council officer does not deal with amendments/conditions previously imposed to satisfy an objector's concerns. There is no mention of Condition 1(d) or the decision in Ferndale Cottage.
   • The officer has again conflated the correct choice of process with a merits consideration of the proposal.
   • The suggestion in the second paragraph that the modified window is now to a habitable room, rather than to a pantry, perhaps overstates the nature of the change given the open plan layout of the original kitchen-pantry identified in Ferndale Cottage. It was however common ground between the parties (and expressly the evidence of Mr Glossop) that the modified window was now more clearly to a habitable room. However, if this is the case, this would serve to raise the prospect of overlooking, rather than reduce it.
   • The Council's delegate has again placed weight on the Agreement. To the extent the fourth paragraph does mention an incorporated screen, it was common ground between the parties (and expressly the evidence of Mr Glossop) that the boxed window surround was not a screen, but was rather a design element that would not deal at all with the issue of overlooking. The officer has again misdirected himself in relation to the Agreement.
   • The reference in the third paragraph to a proposed dwelling to the 'north' can only be read as a mistaken reference to what should be the 'west' given the attached plan for the subdivision and development to the west (including the proposed dwelling immediately to the west). The officer has not transparently assessed overlooking to the north in the context of Condition 1(d) and the decision in Ferndale Cottage, if at all.

1. I return then to the three underlying grounds upon which the Declaration Proceeding is based; namely Cook's allegation that, in approving the Amended Plans by way of secondary consent:
   • the Council acted ultra vires;
   • the Council failed to take into account a relevant consideration; and/or
   • the Council acted unreasonably in a Wednesbury sense, in making a decision that was so unreasonable that no Council acting reasonably could have made.

1. As I have indicated, the Council has no inherent power to amend the Permit by way of secondary consent. Any power to approve the Amended Plans in relation to the modified window must be found within the lawful ambit of Condition 2. Otherwise, the Permit (including plans approved under the Permit) can only be amended under the process in s 72 of the PE Act. If the Council has purported to approve the Amended Plans in circumstances where the Permit does not allow it to do so, it follows that the Council will have acted beyond power (or 'ultra vires').
2. From the above discussion, it will be clear that I find that the secondary consent process was not open to the Council in relation to the approval of Amended Plans for the modified window. This is most clearly the case having regard to the fourth Westpoint criterion, by reference to the Permit and the 'specific requirement' in Condition 1(d). It is also the case in relation to the third Westpoint criterion, having regard to the purpose of the planning controls under which the Permit was granted, as applied by VCAT in Ferndale Cottage. Even the Council delegate, despite all of the other problems with his assessment, had considered that the third Westpoint criterion was not met (but for his erroneous assessment) and that a s 72 process would otherwise be warranted (but for his erroneous reliance on the Agreement).
3. It was effectively contended by the Council and Burge that the decision to use secondary consent was a 'judgement call' in the application of the Westpoint criteria, and that it would not be appropriate to use the Declaration Proceeding to declare the Amended Plans invalid just because a Council delegate may have made a poor judgement in deciding to use secondary consent to approve the plans, rather than requiring that the matter be dealt with more formally through a s 72 process. I will deal with this matter further, in the context of Wednesbury unreasonableness. In the particular circumstances of the case before me, I do not consider that the matter falls within any 'grey area' of poor judgement, or arises just from a different view of the merits of the outcome, where such an argument may perhaps hold greater sway. This should be self-evident from the officer assessment above.
4. Although I have used the Westpoint criteria to assist in determining that the secondary consent process was not open to the Council, I accept that these criteria are guidelines. However, they are a common and industry-accepted mechanism to assist in reaching a view for legal purposes, in this case, that the approval of the Amended Plans for the modified window was not within the lawful ambit of Condition 2, and falls outside the 'limits of the facilitative function' of the condition (to use the words of Benedetti). Having regard to the Permit and its conditions, I consider that secondary consent was not open to the Council to approve the proposed change to the endorsed plans to modify the window, and this could only be achieved through an amendment to the Permit using the process in s 72 of the PE Act. That is the ultimate finding that I make.
5. It follows that the Council decision to approve the Amended Plans in relation to the modified window, through a secondary consent process, was ultra vires. Even if I am wrong about this, as will be seen, I consider that there is an even stronger case that the Council decision is also invalid on the basis of Wednesbury unreasonableness.

Failure to take into account a relevant consideration

1. Cook also contended, in the alternative, that the Council's delegate had, on the face of the decision, failed to take into account the requirements of Condition 1(d) of the Permit, and the rationale for the imposition of that condition having regard to the decision in Ferndale Cottage.
2. This alternative contention perhaps recognises the difficulties in using what are conceded to be guidelines in Westpoint to establish clear ultra vires, and acknowledges that the proper use of the Westpoint criterion may sometimes involve a judgement call (albeit not here, as I have found).
3. None of the parties spent much time on this alternative contention, and I was not taken to the usual authorities on this ground of administrative law review. The parties preferred instead to deal with what the Council's delegate had done as a matter of contested Wednesbury unreasonableness. I have adopted the same approach.
4. Nonetheless, having regard to the matters that are responsible authority is required to take into account in considering any planning application before it, either directly or by contextual reference to common matters such as those set out in s 60 of the PE Act or cl 65.01 of the planning scheme, I consider that the Council should clearly have given weight to Condition 1(d) and the decision in Ferndale Cottage.
5. Here, the evidence is equivocal. The assessment report that I have referred to above fails to mention Condition 1(d) at all, or the issue of a modified sill height to prevent over looking to the north. I do not believe that there was any genuine consideration of Condition 1(d), or the reason for its imposition, or the decision in Ferndale Cottage, and this lack of genuine consideration may be alone sufficient to make out the ground.[37] However, the assessment report does refer to overlooking (albeit in some cases mistakenly) and it does at least mention that Cook was an objector at VCAT. On the most sympathetic reading possible, it could at least be argued that the Council's delegate failed to give adequate consideration to these issues, rather than that he failed to consider these relevant matters at all.
6. Given the matters that I will shortly turn to in relation to Wednesbury unreasonableness, I do not need to finally decide this issue.

1. One of Cook's primary contentions, in his attack on the validity of the Council decision to deal with the matter by way of secondary consent, is based on Wednesbury unreasonableness.
2. In terms of general grounds of administrative law review, in addition to a potential failure to take into account relevant considerations, I agree with Cook that the evidence discloses that the Council's delegate misdirected himself on the facts and the law, took into account an irrelevant consideration and/or misconstrued the Agreement (and its potential to change the matter from one requiring a s 72 process to one allowing for secondary consent), and made a decision that was not just unreasonable, but also wholly irrational.
3. The fact that the Council delegate's decision was objectively unreasonable is not of itself sufficient to satisfy the test of Wednesbury unreasonableness leading to invalidity. For that, I must be satisfied that no Council, acting reasonably, could have reached such a decision. I agree with the Council's reference to cases such as Sweetvale Pty Ltd v Minister for Planning[38], where Justice Morris had said:

The hurdle faced by a person alleging that planning permit decision was not open is a high one, not only for the reasons articulated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited, but also because planning decisions are so broadly based that it will be very difficult to say that no responsible authority, acting rationally, could have made the decision in question. Indeed, the difficulties facing a person seeking to judicially review a planning permit decision is one of the fundamental reasons why parliaments throughout Australia have provided for review of planning permit decisions on the merits. This is particularly so in Victoria, which can rightly claim to have the broadest and most accessible system of planning review on the merits in the country.[39]

1. This is not however a planning permit decision, and the very reason for the Declaration Proceeding is that Cook claims to have been shut out of the opportunity for a merits review that would otherwise have arisen if a s 72 process had been undertaken. Moreover, the question here is not so much whether the Council made a merits decision about the modified window that suffers from Wednesbury unreasonableness, but rather whether its decision to use a secondary consent process to reach such an outcome suffers from Wednesbury unreasonableness, and taints the ultimate decision that was then made through such process. They are two different things, and I consider that there is an error in the Council's and Burge's approach to this proceeding in their attempt to conflate the two. Properly considered, the Declaration Proceeding is concerned with the correct process (and whether Cook has third-party rights in that process, if under s 72), rather than the merits outcome.
2. Nonetheless, the bar for Wednesbury unreasonableness is a high one, even in considering the reasonableness of process rather than merits.
3. The parties also referred me to Kaye v Mornington Peninsula SC[40], where Deputy President Gibson considered the Wednesbury test from a planning perspective as follows:

Wednesbury unreasonableness is not a test of the bona fides of the decision-maker - did it honestly, but mistakenly, believe it was applying the correct test. Rather, it is a test of whether the decision was one so devoid of any justification that no reasonable Council could have reached it.[41]

1. Following its reference to this test in Kaye, the Council again relied upon the evidence of Mr Glossop, whose opinion was that the modified window complies with the requirements of the planning scheme and represents an acceptable planning outcome. Accordingly, it was contended that approval of the window is clearly not a decision that is so devoid of justification that no reasonable planning decision-maker could have made it. Indeed, the Council is so bold as to suggest that it was the only decision that could have been made.
2. This argument however misses the point. The Council is again here confusing process and merits, and again misconceives the nature of the Declaration Proceeding. The allegation of Wednesbury unreasonableness does not pertain to the ultimate planning merits of the modified window. On Cook's argument, that is still a matter yet to be properly determined through a s 72 process. The attack of Wednesbury unreasonableness relates to the Council's use of the secondary consent process under Condition 2 of the Permit instead of the s 72 process, rather than the merits outcome. As I have said, that is quite a different issue. It follows that I find that Mr Glossop's evidence has no utility in the specific context of Wednesbury unreasonableness.
3. It is unnecessary to reiterate all of the material in the Council delegate's report. I have already indicated that the Council officer misdirected himself on several issues, and misconstrued or misconceived the material before him. But it seems clear to me on the evidence that the Council officer here did more than mistakenly apply the wrong tests. I agree with Cook that there is absolutely no reasonable foundation for any possible finding that the proposal would have no adverse impacts on a third-party, and would not conflict with the amendments/conditions previously imposed to satisfy an objector's concerns.
4. In the circumstances, this is one of those rare proceedings where I consider that the high bar is reached, and that a case is made out for Wednesbury unreasonableness. Properly considered, I believe that no Council, acting reasonably, and reasonably considering Condition 1(d) and the basis for its imposition (including the decision in Ferndale Cottage) could have formed the view that a secondary consent process was an appropriate mechanism to approve the Amended Plans in relation to the modified window. Even the Council's delegate here, despite all the other errors and inconsistencies in the assessment report, seemed to have noted that a s 72 process was required, and would have utilised such a process save for having completely misdirected himself in relation to the Agreement.
5. It was an important and deliberate requirement in the grant of the Permit that the endorsed plans required a change to the proposed development to avoid overlooking to the north. This requirement did not change merely because the modified window also provided an additional aspect to the west. The only outcome that a Council, acting reasonably, could have come to was that an application to modify the north facing aspect of the window, in a manner that removed the sill height of 1.7 m to prevent overlooking, needed to be dealt with through a formal permit amendment process under s 72, where Cook would receive notice of the application, and where any potential conflict with the intent of Condition 1(d) could be properly considered - if necessary through a further application for review to VCAT.

1. It follows that I consider that the case for a declaration of invalidity is made out, in relation to the Council decision on 28 December 2016 to use a secondary consent process to approve the Amended Plans. This leads consequentially to the invalidity of the Amended Plans endorsed on 5 January 2017.
2. I understand that there have been subsequent amendments to the plans, comprising other modifications to the proposed development on the Burge Land that are not the subject of the Declaration Proceeding or the Enforcement Proceeding. To the extent those further amended plans continue to show the same modified window purportedly approved under secondary consent, that aspect of any further amended plans is also invalid.
3. There was some discussion before me about the utility of granting a declaration, even if I found Cook's allegations were generally made out.
4. The Council, for example, suggested that there was no utility in granting the declaration because the modified window would likely be approved under any subsequent process under s 72 of the PE Act, given Mr Glossop's evidence that the modified window represented an acceptable planning outcome. As I have indicated earlier, I do not presume to decide the outcome of any future s 72 process, after Cook's objections are taken into account. The Council is again putting the cart before the horse.
5. Burge also argued that there was no utility in granting the declaration, relying in particular on the decision in Inglese v Yarra Ranges SC[42], where Deputy President Gibson had indicated that the declaration should not commonly be made where other equivalent relief is available through a different form of proceeding. Burge argued that an application could readily be made to have the modified window approved under s 72 of the PE Act which would likely be approved. As there is, as yet, no s 72 application, there is no different form of proceeding open to Cook.
6. Burge also contended that Cook's development of its adjoining land at 3459 Point Nepean Road would lead to a greater flow of traffic on the common driveway, and lead to Cook necessarily having to install a fence to protect its private open space on its separate title at 3461 Point Nepean Road. There is some conjecture in that argument. Moreover, the issue of overlooking from Burge's first-floor window is different to a ground-level view from a passing motorist or pedestrian. In my opinion, this argument does not provide a basis (as a matter of practical utility) for not granting the declaration.
7. I agree with Cook that there is utility in granting the declaration. There is a real issue between the parties that is of practical importance not just to the parties, but in its broader implications for the use of secondary consent. Moreover, without a declaration, it would seem that neither the Council nor Burge intend to give any weight to Cook's third-party interests. The making of a declaration will not prevent Burge from seeking to obtain an approval for modified window, or some alternative. It will simply require that they seek such approval through a proper process under s 72 of the PE Act, which will provide appropriate opportunity for third-party participation.
8. In my view, Cook has made out his case and is entitled to the relief that he seeks. Accordingly, I propose to make declarations pursuant to s 149B of the Planning and Environment Act 1987 that:
   • The decision of the Council on or about 28 December 2016 to approve amended endorsed plans under permit P15/0608 (for the modification of the layout of a window on the northern and western elevation for the kitchen/pantry) by way of secondary consent is invalid.
   • The amended plans endorsed by the Council on or about 5 January 2017 (and any subsequent amended plans endorsed by the Council) are invalid, insofar as the plans show the modified layout for the window on the northern and western elevation for the kitchen/pantry.

1. In the related but separate Enforcement Proceeding, Cook seeks an enforcement order under s 114 of the PE Act, seeking to remedy the alleged contravention of Condition 1(d) of the Permit.
2. More specifically, Cook seeks an order that works be undertaken to ensure that the development on the Burge Land is brought into conformity with the terms of the Permit, and pursuant to the originally endorsed plans that show the pantry window with a sill height of 1.7 m above finished floor level.
3. Cook contends that the outcome of the Enforcement Proceeding is contingent on the outcome of the Declaration Proceeding. I agree that the two are intertwined, but it does not necessarily follow that the outcome of the Declaration Proceeding leads automatically to the making of an enforcement order in the manner sought by Cook.
4. In its statement of grounds, Cook relies only upon a contravention of Condition 1(d), and does not refer to the contravention of any other condition. As was noted at the hearing of the (unsuccessful) application for an interim enforcement order, there was an initial compliance with Condition 1(d) in that plans were endorsed showing the pantry window with a sill height of 1.7 m above finished floor level. It is the subsequent change to those plans that is in issue.
5. In Young, a decision to which I referred much earlier in these reasons, Senior Member Byard had also been faced with an enforcement proceeding where plans had been endorsed under a Condition 1 type condition. He indicated that, if there was a contravention in relation to those plans, it could not be a contravention of Condition 1 (because the plans had been endorsed in compliance with that condition), but rather any non-compliance with those plans might amount to a contravention of Condition 2.[43]
6. Although the facts and circumstances in Young were a little different, I agree with the Council that a similar outcome arises here. If there is a non-compliance at all, it would appear to be with the 'restrictive function' of Condition 2, which provides that the layout of the land etc must not be altered or modified from that shown on the endorsed plans.
7. Although the Council squarely raised this issue at the hearing, Cook did not rely upon a contravention of Condition 2, nor seek leave to amend the statement of grounds. In my view, this represents a deficiency in the enforcement application as currently pleaded.
8. Even had Cook done so, there are other aspects of the Enforcement Proceeding which lead me to the view that it would be inappropriate to make a final enforcement order at this time, at least not in the form sought by Cook.
9. In particular, although I have found the decision under secondary consent to be invalid, Burge has acted in good faith on that consent and the Amended Plans. The dwelling extension has been fully framed. I am told that area of the original pantry window now contains a support beam, and it would be structurally difficult to undo the work that has already been undertaken.
10. I consider that a short time should be allowed for Burge to consider the implications of the decision in the Declaration Proceeding. Although I do not seek to presume the outcome of any s 72 application for approval of the modified kitchen-pantry window, Burge may decide to make such an application. Alternatively, there may be some other compromise proposal that is still capable of being pursued between the parties.
11. An enforcement proceeding is not intended as a penalty per se. Its primary purpose is to remedy the planning mischief. In this case, until the underlying planning merits of the modified window, or some suitable alternative, are determined, I do not consider it is appropriate to require Burge to demolish works that have already been undertaken at substantial expense, and to build a window only in accordance with the originally endorsed plans. It is conceivable that that may be the ultimate outcome, but it is also conceivable that Burge will achieve some form of approval for a modified window through a s 72 process. Having said that, VCAT would not look well upon any attempt by Burge to continue with the development in its present form under the invalid Amended Plans, until the underlying planning merits of any future kitchen-pantry window are resolved. This places some pressure on Burge to deal with the matter quickly, if Burge is to avoid final enforcement orders in some form being made.
12. Accordingly, I propose to adjourn the Enforcement Proceeding to an administrative mention to give the parties a short time to consider their respective positions in consequence of the decision in the Declaration Proceeding. My orders provide for this.

1. At the conclusion of the hearing, all three parties made application for costs against the other two parties, in the alternative, contingent on the outcome. Cross-applications and indemnity applications for costs were also then made on a similar basis.
2. The applications for costs were triggered by Burge, whose advocate made it clear that the application was being made at the hearing in an endeavour to avoid the fee for the making of an application for costs after final orders have been made in the proceeding. This is an increasingly common practice.
3. It is not appropriate that I express any view on VCAT fees. The fees are set by government through the Victorian Civil and Administrative Tribunal (Fees) Regulations 2016, and administered by the principal registrar in accordance with those regulations.
4. Having said that, it is somewhat farcical for a VCAT member to attempt to consider a scattergun costs application brought by one party against other parties in the alternative (and then by all parties against all other parties) that is contingent upon a then unknown outcome. This is particularly the case at VCAT where costs do not automatically 'follow the event', and even more so in a complex matter in VCAT's Planning and Environment List where there are a variety of possible outcomes. It is impossible to properly consider the relevant factors that might arise under s 109 of the Victorian Civil and Administrative Tribunal Act 1998, or to consider relevant submissions from those who may become liable to pay. The matter is even more complicated in the present proceedings, because the outcomes in the Declaration Proceeding and the Enforcement Proceeding differ.
5. Equally, I do not consider that it is appropriate for a VCAT member to entertain such an application to enable the parties to get a 'foot in the door' before final orders, solely in order to avoid an application fee, and with a lengthy interlocutory process still then required after final orders to deal with the 'real' application for costs.
6. It follows that I have made a decision to simply reserve costs at this stage.
7. This means that, if any party now seeks to make a costs application, after final orders in the Declaration Proceeding, it will need to do so in a proper manner. If that entails the payment of a fee for the costs application, then so be it.

[1] In reaching my decision, I have considered all of the submissions and evidence of the parties, albeit that I do not record or refer to all of the contents of those documents in these reasons.

[2] [2016] VCAT 1289, Member Dawson. 'Ferndale Cottage' is an entity associated with the Cook family, and owns the land at 3461 Point Nepean Road.

[3] Order of Member Dalia Cook in the Enforcement Proceeding, unreported, dated 24 April 2017.

[4] [2005] VCAT 1049 per Gibson DP and Liston SM

[5] taking the name from the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 230

[6] [2005] VCAT 637 per Justice Morris P.

[8] [2015] VCAT 1373 per Byard SM.

[10] The decision in 155 Domain Road predates Westpoint, and arose under the now repealed s 62(3) of the PE Act that then governed the approval by a responsible authority of amendments to plans approved under a permit. That provision expressly required 'consistency with the permit' (which the extracted paragraph above clearly references in its opening words) as a statutory pre-requisite to the amendment of plans. It also arose when there was no definition of the 'permit' itself including endorsed plans (or any equivalent provision in s 72), and it does not mention the then s 73 that also prevented a responsible authority from amending a permit in a manner that changed the effect of any condition required by VCAT. Care should thus be taken in reliance upon this decision.

[12] [2005] VSC 434 per Osborn J.

[13] although it was numbered Condition 1 in that case.

[14] [2005] VSC 434, at [36]-[37], referring to the VCAT decision at first instance to in Benedetti v Moonee Valley CC [2005] VCAT 1580, at [29] per Macnamara DP.

[15] PE Act s 4(2). See for example s 4(2)(i), which seeks to ensure that those affected by proposals for the development of land receive appropriate notice.

[16] These comments are also consistent with what was said in Zuzek v Boroondara CC (Red Dot) [2007] VCAT 2174 per Dwyer DP, at [11] - a case to which I will also later refer.

[17] [2005] VSC 434, at [34]

[18] see, for example, Kaye v Mornington Peninsula SC [2014] VCAT 819, including its reference to the decision in Oakden Shopping Centre Pty Ltd v City of Port Adelaide [2004] SASC 373.

[19] Having regard to s 149(1)(a) of the PE Act that limits a right of review to specified persons.

[20] [2005] VSC 434, at [27]-[28]

[21] [2005] VSC 434, at [29]

[22] On the issue of the test for validity of a permit condition, see for example Benedetti, at [50]- [55], applying the test in Allen Commercial Constructions Pty Ltd v North Sydney MC [1970] HCA 42; (1970) 123 CLR 490, 499-500

[23] Westpoint Corporation Pty Ltd v Moreland CC [2005] VCAT 1049 per Gibson DP and Liston SM

[25] [2000] VCAT 1947 per Members Liston & Rickards.

[27] This definition was not extended to the balance of the PE Act until 2013.

[28] Moreover, there are some who consider that the introduction of a definition of a 'permit', to include endorsed plans, was a clarification of the existing position rather than a change.

[29] Red Dot [2006] VCAT 101. This is a reference to the directions hearing in APAC, reported separately from the subsequent merits decision.

[31] (Red Dot) [2007] VCAT 2174, at [11] per Dwyer DP

[33](Red Dot) [2014] VCAT 397 per Liston SM

[34] [2007] VCAT 2254

[35] [2005] VSC 434, at [27]-[28]

[36] Exhibit NJL-18 to the affidavit of Natalie Luketic

[37] See, for example, Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713 per Gummow J.

[38] [2004] VCAT 38 per Justice Morris P

[40] [2014] VCAT 819 per Gibson DP

[42] (Red Dot) [2014] VCAT 396, per Gibson DP, building upon the comments in Nightingale Vin v Latrobe CC [2009] VCAT 1676, per Dwyer DP.

[43] [2015] VCAT 1373, at [44] per Byard SM