[2004] VCAT 2487

1

The tribunal gives leave for proceeding P1509/2003 to be withdrawn and the proceeding is marked "withdrawn".

2

In proceeding P208/2004, the tribunal affirms the decision of the responsible authority to refuse to grant a permit.

3

The tribunal dismisses the applications in proceeding P2153/2004.

4

In proceeding P209/2004, the tribunal gives its consent for the development to be altered so as to include an additional room at a third level, as described in the plan drawing numbers A00, A01, A02, A03 and A04, all issue B, by Robert Busselmann and Associates but modified by:

a

the elimination of the balcony on the western side of the rumpus room referred to in the plans and its replacement with roof;

b

the erection of an external screen to a height of 1.7 metres above finished floor level outside the western window of this rumpus room.

1

The purpose of these proceedings is to enable the applicants to construct a room at the third level of the building at 73 Esplanade, Altona ("the subject land"). This endeavour would be a relatively simple one, but for a Design and Development Overlay, which was first introduced in 1999, which prevents the grant of a permit to construct a building exceeding a height of two storeys.

2

The land is located on the corner of the Esplanade and Millers Road, Altona. It is regular in shape and has a frontage of 16 metres, a depth of 39 metres and an area of 624 square metres. The surrounding area is characterised by one and two storey dwellings, with the latter seeking to take advantage of views to the bay.

3

At all relevant times the land has been included in a Business 1 zone pursuant to the Hobsons Bay Planning Scheme ("the scheme").

4

On 20 August 1997 the Hobsons Bay City Council ("the council") granted Planning Permit No 97387 ("the permit") pursuant to the scheme. The permit allowed the development and use of the subject land for the purpose of a graphics arts studio and caretaker's house, with associated vehicle parking.

5

Condition 1 of the permit provided:

The development and use as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

6

The plans which were subsequently endorsed by the council showed a building of three levels. The first two levels each contained a substantial number of rooms. The third level, which was described on the plans as a mezzanine level, consisted of a landing having an area of approximately 2.5 square metres. A staircase was shown leading to the mezzanine level. The plans also showed that the roof over the second level was to be a flat roof, save for the roof over the mezzanine area. The mezzanine, which also included an amount of void space, was in the nature of a "pop up" roof, above the main roof.

7

The building was completed sometime in 1998. It included the mezzanine and the stairs to the mezzanine. By including these features, the clear intention of the owner was to provide for a future extension of the building at a third level.

8

On 13 December 1999 the relevant scheme was amended by Amendment L21. This introduced a provision, relating to a foreshore area which included the subject land, that a permit was required for development and no permit may be granted to exceed two storeys. This amendment was made without notification to affected landowners.

9

Subsequently Amendment C11 to the scheme was introduced to make the restriction, introduced by Amendment L21, a permanent restriction. Amendment C11 was subject to notification and a panel hearing. The panel noted that the applicants wished to complete their dwelling with an attic room, to be accessed from the landing in the existing mezzanine. The panel indicated that it generally supported this objective and saw no logical reason why the property should not be so extended. It commented:

If there was a degree of flexibility in the application of controls, this issue could be resolved quite easily, however the amendment as exhibited does not allow such flexibility.

Amendment C11 was subsequently adopted and approved; but the additional flexibility which the panel thought desirable was not included in the amendment.

10

The applicants have applied to the tribunal pursuant to section 149B of the Planning and Environment Act 1987 for a number of declarations concerning the subject land. This proceeding was heard and determined by the President. The applicants have also brought other proceedings, which have been heard and determined by Member Komesaroff. As a matter of convenience, however, we have published a joint determination as we both agree on all matters of law considered in the determination.

11

The first group of declarations relate to the decision of the council to refuse to amend the plans referred to in the planning permit. The subject matter of these proposed declarations is essentially the same as the subject matter of the legal issues in Application for Review P209/2004.

12

A declaration was also sought that:

The construction and use of an internal alteration in the form of an additional bedroom, generally in accordance with the drawing shown in schedule A hereto, is lawful and allowed under the Hobsons Bay Planning Scheme and does not require the issue of a permit or any other planning approval thereunder.

The drawing shown in schedule A showed an extension of the mezzanine floor to the east and the west, within the existing roofed area, so as to take up some of the void space. The proposed additional bedroom would increase the floor area at the mezzanine level from approximately 2.5 square metres to approximately 23.2 square metres. It should be noted, however, that because of the sloping roof a person could stand in only 16 square metres of this area.

13

It is convenient to deal with the application for this particular declaration before turning to the more complex issues raised by the application for the other declarations.

14

Clause 34.01-4 of the scheme provides that a permit is required to construct a building in the Business 1 Zone. Further, clause 43.02-2 of the scheme provides that a permit is required to construct a building in an area subject to a Design and Development Overlay. Clause 62.02 of the scheme then provides that:

Any requirement in this scheme relating to the construction of a building or the construction or carrying out of works does not apply to:

•

The internal rearrangement of a building or works provided the gross floor area of the building, or the size of the works, is not increased.

15

The expression "gross floor area" is defined in clause 72 of the scheme to mean:

The total floor area of a building, measured from the outside of external walls or the centre of party walls, and includes all roofed areas.

16

Mr Hooper QC, who appeared for the applicants, submitted that the construction of the proposed additional bedroom, within the existing roofed area, did not require a permit because it was an internal rearrangement of a building and the gross floor area of the building was thereby not increased. In this respect, he submitted, the "gross floor area" was defined in a way that was the equivalent of site coverage, in that it was only the floor area at the ground floor which must be considered. This submission cannot be accepted. The definition of "gross floor area" focuses upon the total floor area of the building, not the total floor area of the building at ground level. In the case of a multi-level building, the total floor area is to be ascertained by identifying the area of each floor of the building and then adding the areas so identified. In calculating the area of each floor that area is to be measured from the outside of external walls, or the centre of party walls. But the reference to the method of measurement in the definition of "gross floor area" cannot be used to transform the concept of the total floor area of a building into the floor area of just the ground floor of a building. This would do violence to the language used in the definition and would be contrary to the clear intent of the definition.

17

Since the introduction of the foreshore height limitation in late 1999, the interpretation of the provisions has caused difficulty. Clearly the manner in which the provisions have been expressed leaves much to be desired, as it is prone to give rise to ambiguities.

18

Clause 43.02-2 of the scheme provides that a permit is required to construct a building on land subject to a Design and Development Overlay. It also provides that buildings and works must be constructed in accordance with any requirements in a schedule to the overlay, including requirements relating to building height. It then provides:

A permit may be granted to construct a building or construct or carry out works which are not in accordance with any requirement in a schedule to this overlay, unless the schedule specifies otherwise.

19

Schedule 4 to the Design and Development Overlay imposes a height limit on land adjacent to the foreshore in the City of Hobsons Bay. An objective of the overlay is to ensure that the height of new development is compatible with the prevailing character of the area. Clause 2.0 of the schedule provides, in relation to building height:

A permit may not be granted to construct a building or to construct or carry out works exceeding a height of two storeys.

The height of a building or works is the height of its highest point above the permanent footpath at the centre of the site frontage. If there is no footpath, the natural surface level at the centre of the site frontage is the base level.

20

Unlike most other schedules to the Design and Development Overlay (see schedules 2, 3, 5, 8 and 9), Schedule 4 does not actually impose "requirements" in relation to building height. Rather it simply provides that a permit may not be granted to construct a building or works exceeding a height of two storeys. (The reference to works is difficult to follow as the notion of "storeys" is foreign to the concept of works; unless this is understood as applying to part of a building, in which case it is unnecessary.) Although it is arguable that Clause 2.0 of Schedule 4 is inconsistent with the "parent" provisions of the Design and Development Overlay set out in clause 43.02, we think the provisions should be interpreted as if they provided:

1 A permit is required to construct a building; and

2 Such a permit must not be granted to construct a building exceeding a height of two storeys.

21

But there can be confusion about the precise nature of the two storey restriction. One reason for confusion is that the second paragraph of clause 2.0 is cast in language designed to measure height in terms of metres, not storeys. The problems caused by this paragraph are highlighted by the definition of the word "storey" in clause 72 of the scheme, namely:

That part of a building between floor levels. If there is no floor level above, it is the part between the floor level and the ceiling. It may include an attic, basement, built over car parking area, and mezzanine.

A literal meaning of clause 2.0 might be that a permit could not be granted to allow the construction of any portion of a two storey building above the ceiling of the upper storey. This is because, on one view, any portion of the building above the ceiling (including the roof) could be regarded as a building "exceeding a height of two storeys".[1] But such an interpretation would be a nonsense. Thus it is difficult to conclude that this would have been the intent of the scheme.

22

Another possible approach would be to interpret the provision as meaning that a permit may not be granted to construct any portion of a building exceeding a height of two storeys, other than essential components such as the roof. However this interpretation involves reading words into the clause and begs the question of what would be an essential component. What of a chimney? What of a television aerial? What of solar panels seeking to provide hot water utilising the energy of the sun? The problem with this approach is that it fails to definitively answer the question of what would be permissible above the ceiling of the upper level of a two storey dwelling. Thus it must be doubted whether the intention of the framers of the scheme was that these matters would be left to guesswork.

23

The difficulties created by clause 2.0 of schedule 4 are revealed by examining the decisions of Vincent v City of Hobsons Bay (1999/08003) and Lee v City of Hobsons Bay [2000] VCAT 1520.

24

In Vincent Deputy President Macnamara considered a proposal for a three level building, consisting of a basement car park, protruding 1.2 metres above the ground, and two living levels. It was argued by the permit applicant that the basement storey should not count in the assessment of storeys. In the course of his decision Mr Macnamara said:

It is my view these proposed units do exceed the height of two storeys as those expressions are used in the planning scheme. It may be conceded that insofar as the basement's protrusion above ground does not exceed 1.2 metres it is not a storey; however the prohibition is not upon buildings exceeding a particular number of storeys, but it is against buildings exceeding the height of two storeys. These proposed buildings are two storeys high plus 1.2 metres. In the circumstances, therefore, they would if built, clearly exceed the height of two storeys.

25

In Lee Deputy President Horsfall and Mr Hewet considered a proposal to develop land with a dwelling of two levels on a sloping block. In its conclusion the tribunal stated:

The tribunal does not accept the applicant's submission that the height control introduces a "storey" as a unit of measurement. Clearly the presence or not of two storeys is an element in the calculation, whether or not the storey is a conventional one, but the test is whether the height of the highest point above the specified level exceeds two storeys. In the tribunal's view, any excess is either a storey or part thereof or an excess according to the ordinary units of measurement.

After setting out this conclusion, the tribunal then said:

The tribunal agrees with the applicant's submission that the height control cannot be given effective meaning on the basis of the strict definition of "storey". Ordinary roof and foundation structures in the building are not in the tribunal's view prohibited by clause 2.0. However the roof and foundation structures must to some extent be taken into account because clause 2.0 imposes a limitation on the height of its highest point above the permanent footpath at the centre of the site frontage.

Thus a two storey building with ordinary foundations, floor and roof structures built on a level site would not in the tribunal's view offend clause 2.0, but this site is not level and slopes upwards from the rear to the front.

26

It can be seen that by rejecting the applicant's submission that the height control introduces a storey as a unit of measurement, the tribunal in Lee has necessarily immersed itself in a complex analysis, full of uncertainties, that depend upon vague concepts such as "ordinary roof and foundation structures" in order to fathom a meaning of the provision. In our opinion, this is unlikely to have been the intention of the authors of the scheme.

27

In our opinion, the provisions of schedule 4 of the Design and Development Overlay should be construed so as to promote the purpose underlying the control. That purpose, which is to achieve development of a height which is compatible with the prevailing character of the area, is designed to be applied in the context of dwellings containing storeys. With this in mind, we identify the clear purpose of the schedule as to introduce a height control that uses a "storey" as a unit of measurement. So interpreted, the control allows a permit to be granted for the construction of a building of one or two storeys, but does not allow a permit to be granted to construct a building of three or more storeys.

28

In Poci Brothers Pty Ltd v Bayside City Council [2003] VCAT 1884 the tribunal was required to consider a similar problem in the context of the Bayside Planning Scheme. Like the present provision, that provision was inelegantly drafted. In that case the President of the tribunal said:

The height of the building is to be assessed, not by counting every possible level or every possible storey within a building and then reaching the conclusion by addition; but, rather, is to be ascertained by being armed with all relevant information about the building and then reaching a conclusion as to whether the building should be characterised as a building which exceeds a height of two or three storeys (as the case may be).

This approach is called for, not only to ensure that the outcome is one that is practical and imbued with common sense, but also to give effect to the clear purpose of the control. I have no doubt that the purpose of the control is to ensure that when observed externally the built form in the coastal strip of Bayside appears to not exceed two storeys ...

29

It might be thought that our approach does not give sufficient weight to the second paragraph forming part of clause 2.0 of schedule 4. But as this paragraph is so obviously designed to apply to height limits expressed in metres it is difficult to give it any real effect without distorting the clear intent of the first paragraph of the clause. This is not an occasion where it is possible to look at the antecedents of the clause and the content of panel report in relation to the provision. The panel had recommended that the provision contain some flexibility to deal with situations such as that before the tribunal in the present case; but the actual control did not include such flexibility.

30

We note that a paragraph, to the same effect as the second paragraph of clause 2.0 of schedule 4, has been used in clause 2.0 of schedule 8 to the Design and Development Overlay, which relates to a foreshore height limitation in other parts of the municipality. That control is also a control that identifies building height in terms of storeys. However there are specific references in that provision to how basements and roofs are to be considered, which are not contained in schedule 4.

31

The provisions of the Design and Development Overlay must be interpreted having regard to the definitions used in the Planning and Environment Act 1987. One definition is that of "building" which is defined to include part of a building. Hence the requirement of the Design and Development Overlay that a permit is required to construct a building extends to the construction of part of a building or an extension to a building. Similarly the limitation on the power to grant a permit expressed in clause 2.0 of schedule 4 is relevant in considering an application for a permit to construct an extension to a building. But, in such a case, how is the limitation that a permit may not be granted to construct a building exceeding a height of two storeys to be applied? We think the provision means that a permit may not be granted to construct a building, or an extension to a building, so that the building becomes a building of more than two storeys (that is, three storeys) by reason of the construction. Such an interpretation gives effect to the purpose of the provision and accords with common sense. Such an outcome is also consistent with the decision of the Supreme Court of New South Wales in Lawton v SHEV Pty Ltd (1969) 89 WN (Part 1) NSW 635, a restrictive covenant case in which a similar issue arose.

32

Mr Hooper contended that, in its context, clause 2.0 of schedule 4 must be regarded as only imposing a limitation upon the grant of a permit to construct whole buildings. He said that it was only in the context of the construction of whole buildings that the height limitation of two storeys made sense. But such an interpretation would fail to give effect to the intent of the authors of the scheme. If Mr Hooper's contention is correct, it would enable a ten storey building to be erected by a permit applicant obtaining ten separate permits, each adding one additional storey. This would defeat the intention of the scheme.

33

Application P208/2004 is an application for the review of the refusal of the council to grant a permit for the proposed extension. The council contended that the tribunal must refuse this application, as there is no power to grant a permit for an extension to a building which would be contrary to the provisions of schedule 4 of the Design and Development Overlay.

34

One argument which the permit applicant must have considered putting before the tribunal is that the existing building is a three storey building and, hence, the grant of a permit for the extension would not cause the building to become a building of three storeys. Such an argument would be predicated upon the fact that the existing building contains a third level, albeit a level consisting of a landing of about 2.5 square metres. Tempted though he must have been, Mr Hooper resisted advancing this argument. Rather, he acknowledged, referring to Poci, that it was reasonable to characterise the building as a two storey building. This characterisation was agreed to by the other parties.

35

We think Mr Hooper was correct in resisting the temptation to argue that the existing building was a three storey building. We think that, having regard to the principles set out in Poci, it cannot be reasonably said that the mezzanine level resulted in the building being a three storey building. Not only is the area of the mezzanine extremely small, but the purpose of the mezzanine is obviously to create the opportunity to construct a third level at some future date, rather than to be a third storey in its own right.

36

Mr Hooper then argued that the proposed extension, which is to add a room having an area of approximately 40 square metres, would not change the characterisation of the building as a two storey building. He suggested that if a person stood at the footpath at the centre of the site frontage they would not observe the third level. He also pointed to the fact that the roofline to be used for the proposed extension would be an extension of the roofline on top of the mezzanine floor. But neither of these matters are decisive. The fact that a building may appear as a two storey building from some locations does not make it a two storey building. Further, the fact that an existing roofline is to be extended does not mean that a building is of the same number of storeys as the existing building. In the present case the construction of the extension will create the appearance of a three storey building when the building is viewed from positions 100 metres distant from the site in either direction along the Esplanade or towards the foreshore. This is not a case like Poci where an additional level had been created within the building in a way which made no discernible difference to the external appearance of the building.

37

It follows from what we have said that there is no power to allow Application for Review No P208/2004 and to grant a permit for the construction of the proposed extension.

38

The applicant has asked the council to amend the plans the subject of the permit so as to allow the extension to be constructed. The applicant has also asked the council to consent pursuant to condition 1 of the permit to the alteration of the plans, so as to allow the extension to be constructed. The council has refused to make the amendment. It has also refused to give its consent.

Section 62(3) review

39

Application P1509/2003 seeks to review the council's decision to refuse to make the amendment. But, as the applicant has conceded, there is no power for the tribunal to review a decision of a responsible authority in relation to the amendment of plans pursuant to section 62(3) of the Act. Hence the applicant asked that the tribunal give leave for this matter to be withdrawn. The tribunal gives leave and will mark the matter "withdrawn".

40

That leaves Application P209/2004, which is an application pursuant to section 149(1)(a) of the Act to review the decision of the council refusing to give consent to the development being altered from that shown on the endorsed plans so as to permit the construction of the extension on the third level. In this application, by reason of section 51 of the VCAT Act, the tribunal has a broad discretion as to whether or not to give consent in lieu of the council.

41

However Mr Testro, who appeared on behalf of the council, submitted that the tribunal could not grant such consent. First he submitted the permit was "spent", as the development had been carried out, and consent could no longer be given for the development as shown on the endorsed plan to be altered. Second he submitted that even if such consent could be given it could not be given to consent to an alteration which would permit the development to be altered in a manner to produce an outcome which would be inconsistent with the planning scheme currently applying to the land. Third he contended (and in this he was specifically supported by the objector) that even if there was power to consent to the alteration such consent should not be given having regard to the planning merits of the matter.

42

It is clear that the development authorised by the permit has been carried out. But does it follow that the permit itself is spent? We think not.

43

A planning permit which authorises the development of land may or may not have continuing relevance after the development has been carried out. The answer depends on both the nature of the development and the form of the permit (including the conditions in the permit).

44

In the case of a permit (or, for that matter, a planning scheme provision) allowing the subdivision of land, it has generally been accepted in Victoria that once the subdivision has been effected and new titles have issued, the permit (or planning scheme provision) is no longer relevant; and any condition which purports to have an independent operation after this time is invalid.[2] Thus a responsible authority has not been able to enforce a condition imposed upon a subdivision by a planning scheme provision requiring acoustic protection to new dwellings once the subdivision had been carried out: see City of Whittlesea v Jala Pty Ltd[3]. Similarly a condition imposed upon a subdivision permit requiring the provision of building envelopes has been conceded to be of no independent force or effect after the subdivision has been carried out: Kruska v Whittlesea City Council[4].

45

A case that departs from this principle was the decision of the tribunal in Bayside City Council v Sullivan[5], where an enforcement order was granted requiring an owner of a lot, created by a recent subdivision, to enter into a section 173 agreement. The permit for the subdivision was conditional upon such an agreement being entered into, but the then owner had persuaded the responsible authority to issue a statement of compliance in relation to the subdivision without the agreement being entered into. The decision in this case was clearly a just outcome; but as a matter of principle, as Mr Testro acknowledged, it goes against the grain of other cases.

46

Very recently the High Court of Australia has decided in Hillpalm Pty Ltd v Heaven's Door Pty Ltd[6] that a condition imposed upon a permit allowing the subdivision of land could not be enforced against a new owner of a lot created by the subdivision. The decision of the majority of the court did not specifically contend that the permit was "spent", but relied upon the nature of the condition in question; but the reasons of the majority are consistent with such a conclusion.[7]

47

It is not necessary to finally decide the matter in this case, but, like the President in Whelan v Baw Baw Shire Council[8], we tend to the view that once a subdivision is carried out, the permit allowing it, including any conditions, is spent. As the High Court observed in Hillpalm, if a council consent for a subdivision operates to create a continuing obligation, or a right in rem, that affects a later transferee of a lot in the subdivision, that would present a fundamental question about how the creation of such an obligation or right would be consistent with the effective operation of a system of Torrens Title. Our tentative view is that an obligation imposed upon a subdivider which had not found its way onto or attached to the title of a lot could not bind a new owner of the lot; as this would be inconsistent with section 42 of the Transfer of Land Act 1958.[9]

48

But when it comes to a permit authorising the construction of a building, considerations based upon the principle of indefeasibility of title are not relevant. Hence it is necessary, in such a case, to consider the nature of the permission and the form in which it was granted.[10]

49

In the present case, the permit allowed the development of the land with a building and provided that the development, as shown on endorsed plans, must not be altered without the written consent of the responsible authority. This form of permission contemplates the possibility that the development will be altered from that shown on the endorsed plans. It is arguable that the permit might be regarded as only contemplating the possibility of written consent being given if this occurred before the development commenced or, at least, before the development was completed. But common experience tells us that development is sometimes carried out in a manner different than that permitted, yet the differences are such that it is still reasonable to consent to them after the event. Why should a permit expressly allowing the possibility of consent being given for the alteration of the development be interpreted to as to exclude this reasonable possibility? Further, it is also commonplace that once development is carried out the owner may wish to effect minor changes to the development. Why should a permit expressly allowing the possibility of consent being given for the alteration of the development be interpreted so as to deny this possibility in every circumstance simply because the development has been carried out?

50

In our opinion, the decision of the tribunal in Mentone Mansions Pty Ltd v Kingston City Council[11] correctly sets out relevant principles in relation to the amendment of endorsed plans using an informal consent mechanism. Further, in our opinion, the principles outlined in that case can extend to circumstances where the permitted development has been completed.

51

Although the Mentone Mansions decision adopts a flexible approach, it acknowledges that there are significant limits upon the capacity to use an informal consent mechanism to effect changes to a development, whether the development is completed or not. First, as pointed out in Kitsone Pty Ltd v City of Doncaster and Templestowe[12] it is not possible to use a secondary consent mechanism to gain a primary planning permission. For example, if a permit has been granted for the use of land, it will not be possible to obtain a secondary consent under that permit to authorise a development of land which requires a permit. Second, it is clear from both Kitsone and from Mentone Mansions that a secondary consent cannot be used to transform the development or use for which the permit has been granted.

52

Mr Testro also contended that the wording of condition 1 did not create an opportunity for the occupier of the land to ask the responsible authority to alter the development as shown on the endorsed plans. This argument was based upon the language used in condition 1, which Mr Testro argued was really a limitation on the nature of the development which could be carried out. We do not agree with this submission. It is true that the condition limits the nature of the development to that shown on the endorsed plans. But, on a fair reading of the condition, it also allows the responsible authority to give its written consent to the development being altered from that shown on the endorsed plans. Such a reading is consistent with the practice in Victoria over the last 15 years or more. It also is a sensible practice, which introduces necessary flexibility into the planning process.

53

It may be true, as Mr Testro pointed out, that the result is a different one than would be the case if application was made under section 87 of the Act for an amendment of the permit itself. But we see no reason to introduce the limitation imposed upon that process by section 88 of the Act. Quite apart from the fact that section 88 can often unreasonably constrain the tribunal in achieving a just outcome, there is no logical reason why a permit in relation to the construction of a building could not be crafted so that some conditions of the permit continue to have some operation after the development is completed.

54

We now turn to consider Mr Testro's submission that consent could not be given to an alteration to the development if this produced an outcome that would be inconsistent with the planning scheme currently applying to the land.

55

In the present circumstances, we are prepared to proceed on the assumption that the submission is correct.

56

However, as we pointed out previously, the provisions of the Design and Development Overlay impose a limitation upon the grant of a permit to construct an extension to a building which would make that building a three storey building. As a matter of logic, one might think that the same would apply to the amendment of a permit, or the giving of a written consent to alter development as shown on endorsed plans, so as to allow a three storey development. But logic sometimes gives way to the words used in a planning scheme. In the present case the scheme provides that "a permit may not be granted to construct a building ... exceeding a height of two storeys". The scheme does not refer to the amendment of permits or to informal consents granted pursuant to a permit.

57

Although the matter clearly invites different views, we are bound by the decision of Balmford J in Saric v Hobsons Bay City Council[13]. This was a case about the predecessor of the very same height control with which we are now concerned; and there are no fundamental differences between the control there considered and the present control. In the course of her reasons, Balmford J said:

Mr Pizer's next submission was that there was, in fact, no "material mistake" in terms of section 87(1)(c), and that on that ground also, the tribunal had not had power to make the decision to amend the permit. Amendment L21 to the planning scheme provided that "a permit may not be granted to exceed" two storeys. It said nothing to prohibit the amendment of an existing permit to allow the construction of a building of more than two storeys. Accordingly, he submitted, the member had made no mistake in his decision, but had applied the law as it existed at the date of the making of that decision.

With some regret, I accept that submission also. The intention of Amendment L21 may well be to ensure that no building of more than two storeys is constructed in the relevant area. However, the drafting of that amendment does not seem to me to be apt to achieve that intention.

Balmford J considered whether it would be possible to "fill in the gap" in the drafting of the provision. But she considered it was not appropriate as considerable redrafting would be necessary and she could not even be certain what was the relevant intention.

58

We are bound by the decision in Saric, notwithstanding that the tribunal is constituted to include the President.[14]

59

Hence we find that it is open to the tribunal, on the merits, to grant consent to the alteration of the development from that shown on the endorsed plans.[15]

60

It is a matter for Mrs Komesaroff as to whether or not consent should be given. One matter which will constrain the exercise of that discretion is whether or not the alterations sought by the applicant either transform the permit or are too substantial to be legitimately regarded as an alteration which might be approved by a secondary consent. To the extent that this is a question of law, our joint view is that the proposed alterations are relatively modest, especially bearing in mind the existing provision for a third storey, and could be lawfully permitted.

61

This part of the decision is made, in accordance with directions dated 12 August 2004, by Member Komesaroff alone.

62

The issue for consideration is whether the discretion should be exercised to allow the extension, given the decision guidelines, the DDO objectives and strategies, and the neighbourhood character.

63

The neighbourhood does contain sufficient examples of three storey dwellings, constructed before the DDO took effect, indicating a transition to a higher level of construction to take advantage of bay views. Examples of three storey buildings in the locality include 109 and 7 Esplanade and 55, 34 and 13 Queen Street. Some buildings are arguably two or three storeys, namely 81A and 81B Esplanade, 11 Beach Road and 10 Seves Street. Numbers 49 and 51 Esplanade are attic style three storey dwellings. Even some of the two storey homes, such as 77 and 59 Esplanade are so modern, hard edged and striking as to be very prominent.

64

A recently drafted council policy in respect of neighbourhood character policy acknowledges that the single storey historical character of Altona is giving way to increasing double storey construction along the Esplanade. Thus eventually the proposed construction is likely to be only one incremental storey higher than many neighbouring buildings.

65

Thus I would approve the third level extension, with modifications, for the following reasons:

•

The proposed roof form, which continues the current upper storey curved roof form, is a softer form than flat or gabled roof forms.

•

The 10 metre setback of the extension from the frontage means that the extension will be recessive.

•

The existence of other three storey buildings in the area.

•

The concerns of the neighbouring owner as to her personal privacy can be accommodated with plan modifications.

•

The history of the building construction which has caused the applicants so much distress, caught as they have been, by DDO4.

•

The fact that the approval is unlikely to create a precedent.

66

The modifications I would require, as offered by Mr Hooper QC, are:

•

the elimination of the balcony on the western side of the rumpus room referred to in the plans and its replacement with roof;

•

the erection of an external screen to a height of 1.7 metres above finished floor level outside the western window of this rumpus room.

[1] The word "building" is defined in the Planning and Environment Act to include part of a building.

[2] Mr Testro cited Rosemeier v City of Greater Geelong (No. 1) (1997) 20 AATR 86, at 97.

[3] [2000] VCAT 242. Compare Bethune v Baw Baw Shire Council [2000] VCAT 1630.

[6] [2004] HCA 59.

[7] [2004] HCA 59, at [53].

[9] Section 42 provides an exception in the case of fraud. This may provide an explanation of the Sullivan decision.

[10] See the discussion in Darvall v Yarra City Council (2003) 14 VPR 146, at 153-154.

[14] See The People's Investment Co Pty Ltd v Commissioner of State Revenue [2004] VCAT 2424, at paragraphs [21] and [22].

[15] The decision in Saric is consistent with the brothel cases Beaufonte v City of Yarra (1995) 17 AATR 233 and Seventh Colombo Pty Ltd v Melbourne City Council [1998] VSC 7; (1998) 22 AATR 325, although the position in relation to brothels is now affected by section 75A of the Prostitution Control Act 1994 and clause 19.04-3 of the scheme.