1. In addition to amending the plans under condition 1 of the permit to reflect the form of use and development now proposed, consequential amendments to the text in a number of permit conditions would be required. For example, updated descriptions of various plans such as a Sustainable Management Plan and Waste Management Plan referred to in conditions 3 and 4 would be required to align with the amended form of the proposal.
2. It was common ground, and I agree, that the proposal would also give rise to a new permission under the description of what 'the permit allows' to use the land for dwellings because the frontage at ground floor exceeds a width of 2m in the C1Z. Unlike the endorsed plans, the design changes proposed seek to create a residential lobby with a frontage of 2.4m to Kooyong Road.
3. The applicant otherwise contends that no other new permissions necessitating changes to the text describing what the permit allows, is required. More particularly, the applicant submits that the permit need not make reference to permissions under DDO19 under the heading of 'what the permit allows'.
4. It asserts that the permit creates an accrued right that is unaffected by subsequent amendments to the planning scheme and thus includes various permissions that would otherwise now apply under DDO19 were this an application for a new permit.
5. In support of this position, the applicant provided supplementary written and oral submissions during the hearing which I have considered. In doing so, the applicant relies principally on the Tribunal's findings in Jezmac Pty Ltd v Glen Eira CC [2018] VCAT 2053[41] (Jezmac) and Callea Property Developments Pty Ltd v Wyndham CC [2014] VCAT 466 (Callea) which both dealt with amendment of a permit where a DDO was applied after the original grant.
6. The following extracts, quoted verbatim from the applicant's supplementary written submissions are relevant:[42]
   1. In the present case, the rights embodied in the Permit include the right to develop the land by the "construction of a mixed use development ...in accordance with the endorsed plans and subject to ... conditions".
   2. The reference in the permit preamble to the source of the permissions is of no consequence regarding the scope of those rights.

15 As Senior Member Code ruled in Jezmac (at 42):

The subject of the accrued right in a permit is the description of the matter for which a permit is granted as expressed in what the permit is granted as expressed in what the permit allows, together with, as I have already stated, the conditions, endorsed plans and other documents approved under the permit) regardless of whether the source(s) of the permission for the matter is included or specified in what the permit allows"[43].

1. The broad right to construct such a development means that no additional permission is required under any new permission of a scheme that requires permission to construct a building, or to construct it in a particular way.[44]
2. This is turn means that, if the permit is amended in the manner proposed, no additional permissions are required to be granted in this case by reason of the provisions of DDO19.[45]
3. However, the contents of DDO19 are a matter which can be considered by the Tribunal, and which will inform its decision as to whether to exercise the discretion to amend.
4. The written submissions go on to consider the scope of the power to amend a permit, principally by reference to Mondib which are said to confirm that the analysis in Jezmac is correct and provides an additional reason to conclude that it is not necessary to 'grant a permit' for the new permissions required under DDO19.
5. The council does not agree with the applicant's submissions. It says the facts and circumstances that applied in both Jezmac and Callea[46] are to be distinguished from those that apply in the present case. Importantly, in Jezmac, for example, no changes to the building envelope were sought to be made, in contrast to the circumstances here.
6. I respectfully disagree with the applicant's submissions.
7. I firstly acknowledge that there is similar particularity in the drafting of the permissions in the Jezmac permit with the permit before me.
8. In relation to the construction of the building under consideration in Jezmac, the permit saliently refers to the:

'... construction of an eight storey building '... on land within a Commercial 1 Zone and affected by a Heritage Overlay ...'. [My underlining]

1. In the present case, the permissions for the 'construction of a mixed use development' are similarly particularised as follows:

... construction of a mixed use development (food and drink premises, restaurant and dwellings) in a Commercial 1 Zone and Heritage Overlay, with associated reduction in the car parking requirement and a variation to the loading and unloading requirement in accordance with the endorsed plans. ... [My underlining]

1. Both the zone and (heritage) overlay control which required permission for the construction of the development are cited.
2. The particularity with which the permissions have been drafted in both permits is not to be confused with the Tribunal's discussion in Jezmac about the alternative practice of drafting permits in broader or less particularised terms. This is often referred to as a 'global permit' or a permit for an 'overall development proposal'. Commenting on the two approaches and the implications of the more particularised approach, the Tribunal made the following observations:[47]

... The inclusion of the clauses or provisions of the scheme under which permission for a matter is required in what a permit allows can cause doubt as to whether the scope of the matter in what the permit allows is limited when it should not be so limited. It can cause distraction from what is the substance of the matter.

1. Be that as it may, the fact is that at least in relation to the 'construction of the ... development', the permit before me has been drafted with a high degree of particularity because it refers to the Commercial 1 Zone and Heritage Overlay. In doing so, the rights that exist for construction of the development are limited by reference to those required under this zone and Heritage Overlay together with a three dimensional envelope gleaned from the development shown in the endorsed plans.
2. Further, while the particularised nature of the permissions granted are similar to the permit before the Tribunal in Jezmac, the scope of the changes under consideration are different. This is an important distinguishing feature.
3. The Tribunal in Jezmac records that:

Relevantly, there is no change in overall building height, no change to setbacks to the street or right of way, no change in dwelling numbers or types, and no change in car space numbers.[48]

1. In the present case, the proposed amendments extend upwards and outwards beyond the 'envelope' of the approved development shown on the endorsed plans.
2. This is notably so in terms of the proposed increase in overall building height and reductions to some building setbacks including a reduction in some setbacks above the approved street wall. The new frame element also extends in part, above the approved street wall.
3. When I adopt the methodology described in paragraph 42 of Jezmac and consider the following matters together, being:
   • the particularised description of what the permit presently allows (in terms of the construction of the development); and
   • the extent of the approved development envelope on the endorsed plans under the permit; and
   • the nature of the proposed amendments that extend beyond the approved development envelope on the endorsed plans; and
   • the nature of new permissions now required under DDO19 which comprise:
     • an overarching buildings and works permission;
     • exceedance of the (non-mandatory) preferred maximum building height of 18 metres (5 storeys);
     • exceedance, in part, of the (non-mandatory) preferred minimum setback above the street wall of 8m; and
     • exceedance, in part, of interface requirements at clause 2.4;

I am led to conclude that the text describing what the permit allows would need to be amended to include reference to the various buildings and works permissions under DDO19 to encompass those parts of the proposal that extend beyond the development envelope under the endorsed plans.

1. In saying this I make it clear that I accept that no new permission is required for the approved development already shown on the endorsed plans including those elements that now exceed the relevant permit requirements under DDO19. An example of this latter element is the approved 5m front setback to High Street at Level 3 (fourth storey) - being part of the development that is above the approved street wall where a preferred minimum setback of 8m is now specified in DDO19.
2. To summarise, I am lead to these conclusions given the following circumstances combined:
   • the particularity with which the development permissions are expressed in the description of what the permit presently allows; and
   • the nature of amendments to the development which would include new building elements that extend beyond the envelope of the approved development on the endorsed plans and which are now subject to various permissions under DDO19.
3. For completeness, I would not have required changes to the permission for a reduction in the car parking requirement. This aspect of the required permission is broadly drafted in the permit - in contrast to the particularised approach adopted for the construction of the development - and in my view already encompasses the reduction in parking now required for a new use - the proposed office. This is not to say that there is not a discretion to be exercised. Rather, the decision to be made is whether it is appropriate to amend the plans forming part of the permit with consideration to the relevant parts of the planning scheme.
4. I have approached my task of assessing the current proposal with these considerations in mind.
5. If am wrong, I record that my substantive findings on the merits would not change. I also record that there is no dispute that I must consider and apply the policies and provisions of the planning scheme, including the relevant provisions of DDO19, as they exist at the time of my decision in deciding whether to approve the amendment application.
6. I now turn to the substantive merits.

ACCEPTABILITY OF THE DESIGN, STREET-WALL, MASSING AND HEIGHT IN PUBLIC REALM

1. The council takes no issue with the height and form of the development for its first three storeys, up to Level 2.
2. In relation to built form above Level 2 along both High Street and Kooyong Road, the council submits that the fourth storey frame element forms part of the street wall. The combined height and resultant scale of these elements is said to be inconsistent with the predominant street wall height of heritage fabric, thus failing to integrate with the surrounding streetscape of both streets.
3. It is also submitted that the massing and proposed overall building height would result in a building form that is too dominant, bulky and prominent for this setting thus compromising the heritage values of the precinct and built form outcomes sought by DDO19.
4. As well as the addition of a sixth storey, particular concerns are raised with:
   • reduced building setbacks at Level 3 from the north boundary (from 6m to 3.3m) and east boundary (from 3m to 2m);
   • reduced building setbacks at Level 4 from the north boundary (from 6m to 4.54m) and south boundary (from 8.6m to 5m); and
   • the addition of a 1m wide balcony behind the street wall on the east side of Level 4.
5. The respondents largely support these submissions and variously express concerns that the proposed response departs too greatly from the design direction offered by the planning scheme, would not represent a 'modest' scale of development and would set an undesirable precedent. The departure from the agreed consent position is a matter that is also said to weigh against the higher form now proposed.
6. For the applicant's part, in summary, it asserts that the proposed street wall is acceptable because it is slightly lower (by about 1m) than the approved three storey street wall and generally emulates the approved scale. Mr Czarny describes the frame element as one whose masonry panels assist in uniting the base and upper building levels while also serving to filter and mitigate the upper building levels behind. In his opinion, the absence of a roof to the frame element assists in maintaining a sense of outlook and openness to the sky.
7. The scale of the street wall and overall building composition including setbacks and massing through all building levels are also said to appropriately demarcate this corner site. The design is said to step up with the landform in a way and by an increment that is broadly consistent with the scale and form of the adjoining Alara development and which is to be reasonably expected for a major activity centre. Mr Czarny describes the sixth storey as a 'cap' or 'crown' to the building which is recessed and distinguishable from the levels below. He describes the overall quality of the design as superior to the approved scheme.
8. Both Mr Negri and Mr Czarny express the opinion that the proposal will continue to be 'modest' in scale.
9. The site's large relatively large size, corner location and position in the activity centre west of Kooyong Road are said to be other favourable factors that lend support to a more flexible design response on this site compared to others. The applicant also relies on the variability of building and parapet heights and forms west of Kooyong Road relative to development east of Kooyong Road and the absence of heritage fabric on any adjoining site or the review site itself.
10. The applicant also places emphasis on the favourable strategic attributes of the site, the non-mandatory nature of building height and setback requirements in DDO19, alignment of the amended proposal with economic policies that support employment in commercial areas and the contribution this proposal will make to housing diversity objectives.

1. There are consistent planning scheme themes that call for new development that does not adversely affect the significance of heritage places. A proposal's effects on the host precinct in the surrounding context, whether heritage fabric exists on a site subject to a development proposal, or on adjoining sites, remains highly relevant. There is a clear emphasis on designing new buildings that are variously required to 'respect', 'reinforce', 'protect', 'complement' and 'maintain' the features and setting of the heritage place.[49]
2. Through various planning scheme policies and the requirements and decision guidelines of DDO19, this is to be achieved through building setbacks and separation techniques together with an appropriate scale, form and articulation to avoid unreasonable visual bulk - from both the public and private realm within the activity centre and at interfaces with residentially zoned land. The prominence of the heritage form from the public realm is also expected to be maintained by providing setbacks behind the street parapet. High quality design that contributes to local urban character and high standards of internal amenity for residential uses is sought.
3. This does not mean that invisibility of new fabric is intended. Rather, designs are to take their cues from existing valued heritage forms particularly the scale of parapets presenting to streets.
4. I take these planning scheme directions to mean that new development is to be understated and deferential to, rather than dominating over, valued heritage fabric and its prevailing character. A transitioning down to lower scale residential forms at the activity centre interface is also sought. In addition to overall building height, these considerations inform whether a development is capable of meeting the first objective of DDO19 for a modest scale of development that complements the existing heritage fabric.
5. I accept as a general urban design proposition that a site's corner location and size may support a more flexible design response.
6. In support of this proposition, the following diagram is relied upon by Mr Czarny. It appears in his written evidence and is extracted from the Urban Design Guidelines for Victoria under Element 5.1 'Buildings in activity centres'.[50]

1. Guideline 5.1.1g in text form accompanying this image in the Urban Design Guidelines is also cited in Mr Czarny's evidence statement as follows:

Shape the building form and detail to reinforce important street corners.

1. This guideline is however qualified by the following 'tip' appearing in the Urban Design Guidelines:

TIP Not all corners are important. A strategic planning process can identify important corners.

1. In this case a comprehensive structure planning process for this activity centre has occurred. This relatively recent work culminating in the Structure Plan informed the introduction of DDO19. If this work is to have any meaning, these aspirations are not to be departed from lightly.
2. Within this context, it is highly relevant that this corner site is not singled out for any preferential higher or different built form treatment in the planning scheme or Structure Plan relative to its surrounding commercial neighbours.
3. The site is not a strategic redevelopment site. Kooyong Road is identified as a local road. The site is visually and physically remote from land around Dandenong Road where the DDO19 envisages a strong sense of arrival into the activity centre.
4. The site is however located opposite Kings Arcade - a feature through which many pedestrians pass and which is a strategically relevant element of the site's spatial context and heritage significance for precinct HO400. It is an individually noteworthy building (both internally and externally) which also enhances the aesthetic significance of precinct HO400. These are strategically important features of the site's context that attract and concentrate pedestrians moving and stopping between the train station, the arcade's retail offering and High Street. The pedestrian approaches to and from Kings Arcade along the south side of High Street include locations from which the review site is highly exposed on oblique views.
5. The strategic role of Kings Arcade's as a 'pedestrian arcade' between the railway station and High Street is reinforced through its inclusion in Map 2 to the DDO19. Its individual heritage significance within precinct HO57, is similarly described in the following terms:[51]

King's Arcade is a notable building both externally in its façade treatment and internally in its retention of the character of such a retail arcade. The arcade is strategically sited to lead from the commercial area of High Street to Armadale Railway Station.

1. In terms of the requirement in clause 2.3-2 in Schedule 19 that contemplates enhanced streetscape diversity with slightly higher street walls for development not subject to a Heritage Overlay, this does not apply to this site given its location within HO400.
2. As to what constitutes a predominant street parapet height is not defined in DDO19. However, it is clear that the height of parapets with heritage value in High Street do vary from single storey scale of about 4m to 6m[52] and two storey original scale of retail buildings (equivalent to a three storey contemporary scale) or about 10m. Buildings of this scale comprise 'adjacent significant or contributory buildings' using the words of policy at clause 15.03-1L, most of which also contribute to the significance of HO400. They include Kings Arcade and its eastern Victorian era neighbour at 980 High Street, the retained State Bank Building on the Alara site, the Victorian retail group at 1001-1007 High Street and the Armadale Baptist Church and hall at 88 Kooyong Road.
3. Although the width of lots, spacing between heritage fabric and original building styles are more variable in High Street west of Kooyong Road than to land east of Kooyong Road, parapets built to the street are consistently one or two (commercial) storeys throughout High Street and present with a high level of overall visual continuity. These features are identified in the statement of significance for HO400 and create a sense of visual cohesion in the streetscape. Overall, these elements combine to present with a strong horizontal emphasis and sense of openness to the casual observer in the public realm.
4. The site's proximity to multiple buildings that have contributory heritage significance, its high degree of visual exposure from all four points of the compass and to pedestrians moving around this part of the activity centre, together with the site's elevated position in the broader land form that rises from the west along High Street, all underscore the visual and strategic sensitivity of this location. So too does the site's abuttal with residentially zoned land to the north in Kooyong Road.
5. Thus, despite its corner location, I find that an appropriate design response for this site is one that maintains the visual continuity of and consistency with the predominant scale of heritage forms rather than overtly departing from them. A transitioning down to its northern residential interface is also necessary. The proposal would not achieve these outcomes for reasons to which I return.
6. I have also approached with some caution the proposed re-instatement of a sixth storey in circumstances where deletion of one level of the now approved building was central to the consent position reached in the earlier proceeding. A departure from this agreed position is not to be taken lightly and would ordinarily warrant good and sound reasons to do so.
7. In my view, these issues come into sharper focus in the context of built form controls in DDO19 introduced after the grant of the permit that now offer clearer guidance for development of this site.
8. I find that the elapse of time and changed ownership of the site do not sufficiently justify a departure from the consent position reached. In terms of the different architectural expression, it has a sound quality that I find is very good to high. But this is necessarily what the planning scheme expects[53] and is but one consideration of many. I do not find that the proposed architecture is so superior relative to the approved scheme as to justify a departure from the consent position reached, or for that matter to justify a departure from other planning scheme directions for the design and siting of development. In saying this, there is no suggestion from any of the experts or in submissions that the architectural quality of, or internal amenity of the apartments in the approved scheme is unacceptable.
9. While I agree that the provision of medium density housing in well serviced locations like this one has strengthened policy backing since the permit was originally granted, the form of accommodation proposed would see a halving of the number of dwellings from 18 to 9 with larger three bedroom apartments now proposed. I also accept that differently configured apartments would respond to consumer preferences, but it could be equally said that a loss of nine dwellings in such a well serviced location is a matter that weighs against this proposal. Moreover, the additional building height and larger envelope now proposed stems at least in part from the insertion of a new level of the building for the office use.
10. I accept that the inclusion of the office use would contribute to employment opportunities and this is a positive feature but I am unable to find that it outweighs the proposal's disbenefits. In the balancing of different policy objectives directed at land use outcomes, I am also mindful that the strategic role of this centre is more heavily weighted to 'predominantly specialty retailing and food, particularly uses that attract tourists, visitors and weekend trade' rather than offices. This is to be distinguished from the Glenferrie Road activity centre where 'a wider mix of office and service uses at the northern and southern ends' is envisaged.[54] For a use that does not require a permit in the C1Z, it remains that the built form manifestation of this proposed office use together with other changes to the built form carry the greatest weight in determining this proposal's acceptability.

Acceptability of the street wall and frame element

1. I begin by observing that the term 'street wall' is not a defined term in DDO19, other parts of the planning scheme or for that matter in any of the relevant material available to me for this proceeding, including the Structure Plan and Heritage Design Guidelines.
2. I agree with the applicant's submissions that the determination of whether building fabric is a street wall will turn on its particular facts. That said, I do consider that essential elements of a street wall are at least a structure that is sited on (or with a negligible setback to) a street boundary with an upright form and which includes solid elements either in full or part that may be expressed in a variety of ways. It may have a decorative or functional role to play and may include glazing. I do not however think that a roof is an essential element.[55]
3. In the present case I consider that the street wall can be characterised as having a three storey scale. Its height ranges from approximately 10.9m to 11.7m along High Street (east to west) and up to 10.3m at its northern end in Kooyong Road. That is, the street wall does not, in my view strictly include the fourth storey frame element. This is due to the proportion of solid to void elements in its design. These void elements are most appreciable in front-on views in High Street where a larger setback to the main façade of Levels 3 and 4 (fourth and fifth storeys) sit behind.
4. I am not troubled by the architectural composition of the three storey street wall form and scale. Its height as indicated above also sits lower than its approved counterpart by about 1m.
5. I find however, that the height, appearance and composition of the framing element is not an acceptable part of the development, primarily when viewed in oblique mid-range and longer range views from all four aspects.
6. In High Street, the frame element would not meet the requirement of DDO19 for development above the street wall which is preferred to be setback by a minimum of 8m. The intent of this requirement is to maintain the prominence of heritage forms when viewed from the public realm.
7. The frame element is designed to read as part of the street wall below and as an extension of it. This is due to its similar architectural language which like its lower level counterpart, incorporates solid vertical elements that are angled and capped with a horizontal plinth. Similar materials are adopted for its solid elements. I agree with Mr Czarny that the response is an architecturally cohesive one. It would create the appearance of a solid base to the first four levels while avoiding what Mr Czarny referred to as the 'wedding cake effect'.
8. I also accept that the frame element has been deliberately designed to 'mitigate', 'filter' or partially conceal the fourth storey and to a lesser extent the fifth storey. The degree to which it achieves this intent necessarily varies from one location to the next. These levels of the building are to be primarily set back 5m from High Street and 2m and 3m at fourth and fifth storeys respectively in Kooyong Road.
9. I find however that the proposed design response comes at the expense of the casual observer's ability to appreciate intervening void spaces of the frame element on the oblique. As a consequence, I agree with Mr Czarny that the frame element is not visually recessive.
10. In the form proposed, the frame element has a heaviness and creates visual ambiguity as to where the street wall starts and finishes. It leads to the perception of a four storey scaled street wall in both High Street and Kooyong Road.
11. The top of the frame would rise to a height of up to 14.28m in High Street at its western end. By way of comparison, heritage fabric on the Alara site has a predominant parapet height ranging from 10.7m to 10.2m (west to east given the topography).
12. In Kooyong Road, the height to the top of the frame element rises to 12.9m at its north-east corner. The latter would do so at a setback of 3.3m from the northern site boundary at the NRZ3 interface.
13. I find that this built form response is not contextually appropriate. The proposed development would read with built form constructed to the south and east boundaries that is too high and which represents too great a departure from the predominant street wall of heritage fabric in High Street.
14. At the interface with 97-99 Kooyong Road, I similarly find that the design response involving the fourth storey frame element with a height of 12.9m and 3.3m setback from the north boundary does not provide an acceptable transition in scale to its northern residential neighbour in the NRZ3 when viewed from the public realm.[56] I make this finding having considered the location of the neighbouring driveway and the siting of the approved development at this interface.[57]

Acceptability of massing and height in public realm

1. I find that the overall massing and height of the proposal would be too dominant and discordant in both High Street and Kooyong Road.
2. I have particular concerns with the proposed setbacks and height of the two uppermost levels at the fifth and sixth storeys in High Street and the sixth storey in Kooyong Road.
3. In High Street, the fifth storey (Level 4) is to be setback 5m from the south boundary (compared with the 8.6m approved setback). This also compares with the 8m preferred setback in DDO19 and is 6.4m less than the 11.4m setback of the abutting Alara development at this level.
4. At the level above, the sixth storey is proposed with an 8m setback from the south boundary, rising to an overall height of 21.9m. The setback at this level accords with the preferred setback in DDO19 for levels above the street wall but exceeds the preferred maximum height by one storey or 3.9m.
5. In Kooyong Road, from the east boundary, the fourth storey (Level 3) is to have a setback of 2m (compared to the endorsed 3m setback) while the fifth storey (Level 4) is to have a predominant setback of 3m (like the endorsed plans) with balconies in the north-east and south-east corners and with a 2m setback from the east side boundary.
6. The new sixth storey is to have a 5m setback from the east boundary.
7. Taken together, I find that the proposed overall height and massing of the proposed revised levels would sit too far forward in High Street and Kooyong Road in a way that would be excessively dominant in both streetscapes.
8. The visual impacts of the proposal will be at odds with the otherwise relatively consistent streetscape character of existing heritage fabric and larger setbacks of contemporary developments nearby that have either been built or approved and contain a more recessive development pattern to upper levels. These include the Alara site and the permitted six storey development further west at 929-931 and 933 High Street in a mid-block location.
9. The proposal's departure from the existing and emerging development pattern and massing will be most evident in mid-range and short-range oblique views from both directions in High Street. This includes locations on the south side of High Street west of the Kings Arcade pedestrian entry and east of the Kooyong Road intersection, as well as in shorter range views from both directions in Kooyong Road on approach to the site. From High Street, the proposal will have a bulky appearance and create an uncharacteristic sense of enclosure in the streetscape that will disrupt the consistent and continuous pattern and rhythm of development. The height of the development on approach from the south in Kooyong Road will have an uncharacteristic and discordant vertical emphasis.
10. At the north boundary interface with 97-99 Kooyong Road, I find that the proposed setbacks of 3.3m and 4.5m at the fourth and fifth storeys together with the siting and design of the sixth storey would not provide an acceptable mass and transition in scale when viewed from the public realm.
11. In doing so, the proposal would not meet the first design objective of Schedule 19 to the DDO that seeks a modest scale of development that complements the existing heritage fabric. Nor would the design and proposed setbacks meet the requirement of maintaining the prominence of the heritage form when viewed from the public realm. I also find that the design would not complement the prevailing character or contribute positively to local character, running counter to the requirements of DDO19, the decision guidelines of clause 43.01-8 and policies set out in clauses 02.03-4, 15.01-2L-01 and 15.03-1L.
12. It is primarily for these reasons that I find this proposal fails. I therefore make only brief findings on other matters raised.

1. In the private realm, I accept the applicant's submissions and evidence that the proposal would not give rise to unreasonable residential amenity impacts in respect of the abutting flats to the north in Kooyong Road. In short, I find that from a residential amenity perspective, this interface is relatively benign having regard to intervening features including lot orientation, existing building setbacks, location of private open space and the position of existing habitable room windows.
2. The primary off-site residential amenity impacts requiring consideration relate to additional overshadowing, loss of sunlight and outlook/views and a sense of enclosure by residents of the adjoining Alara apartments from indoor areas and balconies facing east.
3. I firstly agree with Mr Negri's opinion and the submissions put for the applicant that amenity expectations for residents living in a commercial context and in a major activity centre cannot be reasonably expected to be the same for residents in a purely residential context. The need to achieve equitable development outcomes is also a relevant consideration. That said, planning scheme guidance in policies such as those at clause 02.03-4 support development that does not compromise access to sunlight and daylight on adjoining sites. Planning scheme policies also promote the creation of liveable urban environments while minimising the detrimental impact of development on adjoining properties[58] while the design of buildings to provide for solar access is a decision guideline at clause 34.01-8.
4. I acknowledge that the development as proposed would result in some loss of views to surrounding heritage buildings. In the submissions of Mr Thomas this would include a loss of views to the Baptist Church and Malvern town hall and clock tower, the latter contrary to the requirements of the requirements set out for High Street under DDO19.
5. This is not however a matter that weighs against the proposal now sought. I say this because I consider that retention of the landmark status given to these buildings is directed towards their appreciation from the public rather than private realm. The views lost would be from the private realm and I agree with Mr Negri's evidence that these would most likely be lost under the approved development.
6. In terms of additional overshadowing arising from this proposal, I have considered the existing extent of overshadowing upon balconies from the Alara development itself and that which would occur under the endorsed plans. Shadow plans relied upon by Mr Negri were circulated during the hearing to this effect.
7. It was Mr Negri's evidence that the additional built form mirrors and follows the light court created by the setbacks on the endorsed plans and that the extent of overshadowing to balconies is limited to 10am and would be reasonable in a major activity centre context.
8. Although I agree the proposed building setbacks from Alara mirrors those shown on the endorsed plans for the first four storeys, it is apparent that:
   • Additional built form is shown in the north-west corner of Level 4;
   • Level 5 adds approximately 4m of building height at this interface (RL 66.15 compared with the endorsed RL 62.2);
   • Roof top plant would present with an enlarged screening device above Level 5 whose height extends to RL67.5 for a length of 10.3m on or proximate to the roof edge compared with RL 63.4 for a length of 2.6m.
9. I therefore reject assertions put for the applicant in submissions and evidence that the proposal does not change the light court shown in the endorsed plans. The light court's efficacy will be diminished by the changes proposed.
10. Turning to those effects I accept the evidence that due to its primary northern aspect, the main balcony of Mr Batagol's apartment on Level 4 would not be subject to an unacceptable level of additional shadowing for this context.
11. I am unable to reach this conclusion in relation to the each of the three apartments on the three levels below which would receive additional overshadowing as a consequence of the proposal between 9am and 10am and when I consider the extent of shadows already affecting balconies in the afternoon period, particularly between 1pm and 3pm in the case of apartments on Levels 2 and 3.
12. I find that the increased height of the building to its west elevation (rising to 23.23m) and to its north-west portion on Level 5 would, for residents of the Level 1 apartment, create an unacceptable extent of visual enclosure even in an activity centre context.
13. I make these findings also being cognisant of the mediated outcome where I understand that at this interface, modifications to the plans were made with the express intention of achieving acceptable levels of neighbouring residential amenity. The proposal would wind back the amenity benefits gained for residents of Alara to an extent that I find is too great and unreasonable in the circumstances.

1. The main benefits of this proposal derive from the contribution that the new office use would make to economic objectives. Changes to the vehicle access arrangements are also positive. The provision of larger apartments will contribute to housing diversity objectives but will result in a loss of nine dwellings - halving the number of dwellings already approved. Despite the proposal's positive response to these planning objectives and those asking for high quality design, I find that the height, siting and massing of the proposed development would not produce an acceptable built form outcome when viewed from the public realm. Amenity related impacts for some neighbouring residents of Alara in the private realm will also occur. On balance, the proposal's disbenefits outweigh its benefits.
2. When tested against various planning scheme considerations and the background circumstances that led to the grant of a permit by way of a mediated outcome, I conclude that the proposal would not be an acceptable one. The application to amend the permit is refused.
3. I will affirm the council's decision.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] As amended in accordance with order 1.

[3] In application for review P1014/2017.

[4] This is because the original application for a permit was made in December 2016 before the gazettal of Amendment VC136 on 13 April 2017. Amendment VC136 introduced clause 58 into all Victorian Planning Schemes.

[6] [2021] VSC 722 [20]

[7] [2021] VSC 722 [73]

[8] [2021] VSC 722 [88]

[11] Cited in both King David and 478 St Kilda Road.

[12] [2011] VCAT 735

[13] See in particular Marone Pty Ltd Joint Venture v Glen Eira CC & Ors (includes Summary) (Red Dot) [2011] VCAT 1650; and Teperman v Boroondara CC [2016] VCAT 180.

[14] [2016] VCAT 426 [80]

[15] See in particular Marone Pty Ltd Joint Venture v Glen Eira CC & Ors (includes Summary) (Red Dot) [2011] VCAT 1650 and 478 St Kilda Road Land Pty Ltd v Port Phillip CC (Red Dot) [2016] VCAT 426

[16] [2014] VCAT 466 [43]

[19] Clause 43.02-2 noting none of the specified exemptions in clause 2.0 of Schedule 19 to DDO apply to this proposal.

[20] Clause 2.3-2 of Schedule 19 to DDO.

[21] Clause 2.3-2 of Schedule 19 to DDO.

[23] No limitation on floor area is specified in the schedule to the C1Z.

[24] These uses are nested in a retail premises.

[25] Due to the operation of the parent buildings and works provision at clause 43.02-2 of the DDO.

[26] Based on the note appearing in clause 2.3 for the purposes of the tables in this clause.

[27] Which is also a Background document in the planning scheme.

[28] For example clauses 11.03-1S and 16.01-1R.

[30] Clauses 15.01-1R, 15.01-2S and 15.01-5S.

[33] Amendment C312ston was gazetted on 11 May 2023. It made administrative, formatting and technical

changes to local provisions of the Stonnington Planning Scheme to reflect reforms introduced by Amendment VC148 and to ensure consistency with the Ministerial Direction on the Form and Content of Planning Schemes. Submissions were provided by the council and applicant on the implications of this amendment for the issues in this proceeding. Both concur that the changes made are largely policy neutral. I agree in the context of the issues in this proceeding.

[37] I also note that this structure is consistent with that appearing in the Heritage Design Guidelines which informed the preparation of this policy.

[38] Under clauses 11.03-1S and 15.01-1S.

[40] Having regard to the provisions of clause 72.08 and s. 60(1) and (1A) of the Planning and Environment Act 1987.

[41] Also cited with approval in Ilex Holdings Pty Ltd v Port Phillip (corrected) [2019] VCAT 2047 especially [53].

[43] The approach in Jezmac was subsequently endorsed as the correct approach by the Senior Member Daicic in Ilex Holdings Pty Ltd v Port Phillip (corrected) [2019] VCAT 2047 at [53].

[45] Jezmac at [52]. Callea at [17] to [37] per Deputy President Gibson.

[46] In Callea, the amendments concerned changing dwellings from double storey to single storey with a largely unchanged 9m front setback. After the permit was granted, the planning scheme was amended to introduce a Design and Development Overlay (DDO9) with a mandatory front setback of 20 metres. No substantive change to the location or footprint of the dwellings was proposed under the permit amendment but it meant that the front setback was now prohibited under the planning scheme. The Tribunal found no permission was required to develop the land under the DDO. The description of what the permit allowed was broadly drafted and did not expressly refer to the relevant zone. Had it done so, the Tribunal went on to observe that if the permit had allowed development expressly under the relevant zone its conclusion 'may' have been different.

[47] [2018] VCAT 2053 [41]

[48] [2018] VCAT 2053 [56]

[49] See for example clauses 02.03-4, 15.01-2L-01, 15.03-1L and the decision guidelines of clause 43.01-8 (HO) and 43.02-6 (DDO).

[51] Extracts from City of Prahran Conservation Study tabled in submissions for the council.

[52] Based on my observations during my inspection and review of endorsed plans filed for various developments. See for example the south elevation showing existing heritage fabric for retention at 929-933 High Street shown on the endorsed plans for Permit 0018/19.

[53] See for example clauses 02.03-4, 11.03-1S and 15, and clause 2.2 in Schedule 19 to the DDO.

[55] Having regard to its ordinary meaning and dictionary definitions. For example, the Macquarie dictionary definition of 'wall' makes no reference to a 'roof'.

[56] When scaled, the endorsed plans (east elevation) show the neighbouring flats with a wall height of 7.87m, while the current plans show a wall height of about 8.1m.

[57] The approved design shows a three storey street wall to a height of 11.4m with a 3m setback, while the two levels above step back further to 6m from the north boundary.

[58] See for example clauses 15.01-1R, 15.01-2S and