A. Application for Review 257/2006 is allowed. The decision of the responsible authority to refuse consent to vary the development requirements under the s 173 agreement which affects 18-20 Windella Avenue, Kew East is set aside.

B. Pursuant to clause 6 of the Section 173 Agreement applicable to the land, section 149(1)(b) of the Planning and Environment Act 1987 and section 51 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal consents to the development of the land in a manner which is not in accordance with the Development Requirements set out in Annexure A to the agreement provided that the development of the land is in accordance with the plans prepared, respectively by B R Smith and Associates, surveyors and by Paul Shaw and Associates Pty Ltd dated 25 June 2005, Revision B, or as subsequently agreed to by the council of the City of Boroondara pursuant to clause 6 of the Section 173 Agreement.

C. Application for Review P2659/2005 is allowed. A permit is granted and must be issued for the subdivision of the land into seven lots and the development of seven dwellings at 18-20 Windella Avenue, Kew East, generally in accordance with the plans prepared, respectively, by B R Smith and Associates Surveyors, and by Paul Shaw and Associates Pty Ltd dated 25 June 2005 Revision B. These plans must be endorsed by the responsible authority and the permit is granted subject to the following conditions:

1 The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

2 The land must be drained to the satisfaction of the Responsible Authority and all drainage works must be completed prior to the occupation of each building.

3 Stormwater drains must be connected to a legal point of discharge approved by the Responsible Authority. Drainage connections within a road reserve must be to Council's standards. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

4 Any new vehicle crossover or modification to an existing vehicle crossover, must be constructed in accordance with Council's standard details. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

5 Within 30 days of the endorsement of the plans, a landscape plan prepared by a landscape architect or suitably qualified and experienced person or firm incorporating:

a. the area(s) set aside for landscaping;

b. a schedule of all proposed trees, shrubs and ground cover, which will include the location, number, size at the time of planting, height and spread at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;

c. planting required by any other condition of this permit;

d. paving, retaining walls, fence design details, and other landscape works including areas of cut and fill and finished site levels;

must be submitted to the satisfaction of the Responsible Authority. When the landscape plan is to the satisfaction of the Responsible Authority it will be endorsed and will form part of this Permit.

6 Landscaping as shown on the endorsed landscape plan must be carried out for each of the lots shown on the endorsed plans and completed to the satisfaction of the Responsible Authority prior to the occupation of the dwelling on a lot.

7 All landscaping works shown on the endorsed landscape plans must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the Responsible Authority.

8 Garbage containers must be stored out of general view, to the satisfaction of the Responsible Authority.

9 All clotheslines must be positioned so as not to be visible from any nearby street, to the satisfaction of the Responsible Authority.

10 All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.

11 No plant, equipment, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.

12 Any air-conditioning or cooling units, condensers and the like must not be located on external walls or on balconies without the prior written consent of the Responsible Authority.

13 Reticulated water, sewerage and underground electricity must be available to each lot shown on the endorsed plans before any lot can be used for residential purposes, to the satisfaction of the Responsible Authority.

14 Prior to the issue of a Statement of Compliance, the owner must enter into and comply with an agreement with Melbourne Water Corporation, under Section 269A of the Melbourne and Metropolitan Board of Works Act 1958, for the provision of drainage works and the acceptance of surface and stormwater from the subject land directly or indirectly into Melbourne Water's drainage system.

15 No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

16 Prior to certification, the Plan of Subdivision must be referred to Melbourne Water, in accordance with Section 8 of the Subdivision Act 1988.

a. Provide to CitiPower Pty (Reference number AF322) a copy of the proper Plan of Subdivision.

b. Provide application for electricity supply into each lot and ensure that any electrical installation shall comply with the requirements of "Electricity Safety Act 1998" and "Service & Installation Rules Code of Practice";

c. Provide to CitiPower Pty a subdivision fee for assessment of Plans.

18 Prior to a Statement of Compliance being issued by the Responsible Authority, the owner shall provide to the satisfaction of Telstra all works for provision of Telecommunication Services to each lot created in the subdivision.

19 Where any extension or alterations to Telstra's network or plant are necessitated by the proposed subdivision, the cost of such works shall be met by the owner prior to the Statement of Compliance being issued.

20 The plan submitted for certification must show details of easements and/or RCM/RIM sites which may be required by Telstra.

21 The plan of subdivision submitted for certification must be referred to Multinet Gas in accordance with Section 8 of the Subdivision Act 1988.

22 The size, layout and location of the lots as shown on the endorsed Plan of Subdivision (PS505325G) must not be altered without prior written consent of the Responsible Authority.

Drainage Works Prior to a Statement of Compliance

23 Prior to the issue of the Statement of Compliance, the owner of the land must enter into an agreement with Council for the provision of drainage works and the acceptance of surface and stormwater from the subject land directly or indirectly into Council's drainage system.

a. The subdivision is not commenced within two (2) years of the date of this permit; or

b. The subdivision is not completed within four (4) years of the date of commencement.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

a. The development does not start within two (2) years of the issue date of this Permit; or

b. The development is not completed within four (4) years of the issue date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

Mr J Kane of Counsel, who called expert evidence from Mr D Gold, Consultant Town Planner, and Mr D Robertson, Consultant Traffic Engineer. He also called Mr M Walker, Building Designer, to explain the plans for the proposed development.

Mr P Georgiev, Mr T Alexander and Ms E Matthews appeared in person.

1 The subject land is the site of the former East Kew Bowling Club. It has frontages to Windella Avenue and Stathwyn Place and is abutted on the south by a public open space reserve. It has an area of 2,575 square metres and is in five titles.

2 In Tony Alexander and Ors v Boroondara City Council[1] ('Tony Alexander') Member Eccles set aside the decision of the responsible authority to grant a permit for a six lot subdivision and the development of six dwellings on the land. The characteristics of the land and of the surrounding land have not changed since then. The planning controls have not changed and neither have the relevant local planning policies relevant to the land. After Member Eccles' decision, Melbourne 2030 became an adopted policy of the State government and was then included in Clause 12 of the State Planning Policy Framework.

3 The land and surrounding area were described by Member Eccles in Tony Alexander as follows:

The subject land is rectangular in shape, apart from a small cutout rectangle at its southeast corner, abutting the public reserve. It was previously occupied by the East Kew Bowling Club. It is flat, having been cut and filled to provide a level surface for the former bowling club and has brick retaining walls with a maximum height of 1.5 metres along the northern, southern and western property boundaries. The retaining walls on the northern and southern boundaries reduce in height towards the eastern end of the site.

Th e neighbourhood in which the site is located is primarily residential in nature, with a mixture of single dwellings and dual occupancies. Strathwyn Place connects Windella Avenue and Strathalbyn Street. It has a pavement width of 5 metres. The property at No 24 Windella Avenue has been subdivided to accommodate a dual occupancy at the rear. The original dwelling at No 24 is a single storey brick house set back 6 metres from Windella Avenue. The new dual occupancy unit is the only dwelling in Strathwyn Place. It is single storey brick dwelling set back 3 metres from Strathwyn Place, with a crossover to a brick garage.

To the south the subject land abuts a public reserve used for passive recreation. Windella Avenue has mainly single storey detached dwellings with a variety of building styles, but there is a "side by side" double storey dual occupancy development at No 15, diagonally opposite the site, and there are other double storey buildings elsewhere in the street, such as at 6, 8, 13, and 40 Windella Avenue. The dual occupancies at No 15 are set back 9 metres from the frontage. The dwelling to the north of the dual occupancy development is at the corner of Hamilton Street and Windella Avenue and addresses Hamilton Street. It has a sideage to Windella Avenue and is set back 3 metres from that street. Opposite the subject site there is a fall of approximately 500mm from the pavement in Windella Avenue to the property lines on the western side of the street and a further fall from the property lines to the floor levels of the dwellings on these properties.

Abutting the subject site to the east are three properties which face Strathalbyn Street. Nos 25 and 27 Strathalbyn Street are single storey dwellings with garages on the common boundary with the subject land. At 23 Strathalbyn Street is a double storey building containing flats, with a carport which extends for just about the full length of the common boundary with the subject site.

4 The proposal before Member Eccles in Tony Alexander was to develop six two storey dwellings on the land and subdivide the land into six lots. Lots 1, 2 and 3 were to face Windella Avenue, Lot 4 was to have frontages to both Windella Avenue and Strathwyn Place, and Lots 5 and 6 were to face Strathwyn Place. The dwellings on these lots were each to have two storeys with the upper floor in an attic style. Dwellings 1 - 4 were to be detached, and Dwellings 5 and 6 were to share a party wall. Dwellings 1 - 4 were to be set back from Windella Avenue by between 7 and 8.5 metres at ground floor level, with their first floors set back between 11 and 9 metres. Dwellings 5 and 6 were to be set back from Strathwyn Place at ground floor level by between 4 metres and 5.77 metres. Their upper floors were to be set back between 5.75 and 7.46 metres. Dwellings 1, 2 and 3 were to have double garages at basement level accessed by a ramp from Windella Avenue. Dwellings 4, 5 and 6 were to have double garages accessed by crossovers from Strathwyn Place. Member Eccles concluded that the proposed development would present unreasonably intrusively to Windella Avenue and to the abutting public reserve to the south.

5 The land and surrounding land is in the Residential 1 Zone and is affected by an agreement made pursuant to s 173 of the Planning and Environment Act. No Overlays apply to it. Pursuant to the zoning a permit is required to subdivide land and to construct a dwelling on a lot less than 300 square metres in area. Pursuant to the Schedule to the Residential 1 Zone a permit is required to construct a dwelling on a lot with an area between 300 and 500 square metres.

6 In Tony Alexander Member Eccles outlined the origin and main provisions of the s 173 agreement as follows:

The subject land was owned by Boroondara City Council until it was sold in 2001. As detailed in the Officer's Report on the permit application, prior to the sale of the land a Working Group comprising two councillors and three community representatives (including Mr Alexander) was established to consider options for the future use of the land. A package of information, including an options discussion paper, was prepared and sent with a questionnaire to 410 persons, including all owners and occupiers of properties within a 300 metres radius of the site, and a newspaper notice in the Progress Press also invited submissions. A telephone survey was also undertaken of a random sample of ratepayers within a kilometre radius of the site. Based on the submissions lodged and the data collected via the questionnaire and the telephone surveys, the Working Group recommended that the land be used for some community purpose and that the Council further investigate possible future community uses such as meeting rooms, youth centre, club rooms etc, recreation uses such as restoring the bowling green, tennis courts, basketball courts etc, or open space including a playground, ovals for use by schools, community gardens etc.

Despite the recommendations of the Working Group, the Council resolved to sell the land. In 2001 the Council entered into an agreement with the purchaser of the land pursuant to s 173 of the Planning and Environment Act. Mr Gold and Mr Baulch agree that the s 173 agreement was recorded on the titles to the land as part of the Contract of Sale. The s 173 agreement was and is binding on the purchaser of the land and on successors in title.

The agreement sets out parameters for the development of the site. It sets out requirements for all development, requirements for multi-dwellings and single dwellings on lots of 500 square metres or less, and requirements for special housing (for aged accommodation or social housing). For all development the agreement provides that electricity must be provided underground, each dwelling must achieve a four star energy rating and that fences must meet specified height and transparency standards.

For multi-dwellings and single dwellings on lots less than 500 square metres the provisions of the agreement include that there must be a maximum dwelling density of one dwelling per 400 square metres of the site area, primary access must be to Windella Avenue, the footprint of all buildings including garages must not be more than 50% of the site area, the setback from Windella Avenue must be at least 7 metres, the setback from Strathwyn Place must be at least 3 metres, any structure or building must not exceed 2 storeys in height above natural ground level, not including basement parking which must be below ground level, and that with the exception of the requirements set out, the development must comply with the Good Design Guide for Medium Density Housing.

For special housing the agreement sets out a series of requirements, including that the anticipated traffic demand from all uses on the site must not be more than 60 vehicles per day. For all forms of development there are also preferred characteristics of development which are prefaced by the word "may" rather than the word "must".

The s.173 Agreement affecting the subject land

7 The agreement also includes at Clause 6 the following:

The Owner covenants and agrees that the Owner will only develop the subject land in accordance with the Development Requirements, or as subsequently agreed by Boroondara, which consent is required to be given pursuant to this clause of this Agreement.

8 As Member Eccles also said in Tony Alexander:

Clause 6 is a "let out" clause. It allows the Council to approve a development which meets only some, or none, of the "mandatory" or preferred development requirements set out elsewhere in the agreement. Mr Alexander and Mr Georgiev referred to this clause as having the effect of making the agreement a "Claytons agreement". They said that the Council had given them to understand that the development requirements set out in the agreement had to be complied with and that this was their understanding when they lodged their Application for Review.

9 In Tony Alexander, Member Eccles concluded that the development before him had a relatively high level of compliance with Development Requirements annexed to the Agreement. Clearly the Council was of the view that it could and would grant any necessary consents pursuant to Clause 6 of the Agreement because it issued a Notice of Decision to Grant a Permit.

10 The proposal now before the Tribunal is for the subdivision of the land into seven lots varying in size from 196m² to 489m², and the development of seven double storey dwellings. The development was conveniently described in Mr Gold's Witness Statement as follows:

The subdivision will first create lots 1-3 facing Windella Avenue and a balance "super lot" for dwellings 4-7.

Houses will be built on Lots 1-3 in accordance with the design shown on the application plans. The Strathwyn Place "super lot" will be developed with four dwellings (in accordance with the plans) and these will then be subdivided.

A Body Corporate will be responsible for the common driveway servicing Lots 4-7.

three, four bedroom dwellings (1-3);

three, three bedroom dwellings (5-7); and

one, two bedroom dwelling (no 4).

Overall the site coverage will be 42% and coverage by buildings and impervious services is 56%.

11 The three dwellings to face Windella Avenue are to be set back a minimum of 7 metres at ground floor level from that frontage. Dwelling 3 is to be set back a minimum of 5 metres at ground floor level from Strathwyn Place. The upper floors of these dwellings are stepped back from their ground floor footprints. The ratio of upper floor area to ground floor area varies from 52.5% to 60.1%. The separation distances at ground floor level between these dwellings is 3 metres. The dwellings are to be benched into the site such that their floor levels are to be at approximately the same level as the footpath in Windella Avenue. A retaining wall is to be located to the rear of these dwellings on the west side of what is to be the access driveway for the rear dwellings.

12 The rear dwellings are to be attached at ground floor level but separated at upper floor level by distances of approximately 3 metres. The upper floors are to be generally stepped back from the ground floor footprints and the ratio of upper floor area to ground floor is to vary between 43.6% and 57.4%. Dwelling 4 is to set back a minimum of 3.94 from Strathwyn Place. The ground floors of the rear dwellings are to be set back a minimum of 3 metres from the eastern boundary. The ground floors of the dwellings on the southern side of the land adjacent to the reserve (Dwellings 1 and 4) are to be set back from the boundary by between 1.96 metres and 2.5 metres, save for the garage of Dwelling 4, which is to be built to the boundary. All the dwellings are to have double garages, save for Dwelling 4, which is to have a single garage. Visitors could utilise tandem spaces in front of the garages to Dwellings 1-3 and at least two visitors' cars could be accommodated on the aprons in front of the garages for the rear dwellings.

13 While Application for Review P2569/2005 is of a failure to determine within the prescribed time, the responsible authority determined, after the Application for Review had been lodged, that had it made its decision within time it would have refused to grant a permit on the ground that the proposal does not comply with the Section 173 Agreement registered on the associated certificate of title. In fact the agreement is registered on each of the five titles which comprise the subject land.

14 The decision of the Council that had it determined the permit application within time it would have refused it was communicated to the Tribunal by letter dated 19 January 2006 and signed by Michael Deidun, Acting Coordinator, Statutory Planning. A copy of the letter was sent to the applicant and all objectors. The letter also stated as follows:

Council has reached a decision in relation to consent required to be obtained by the Owner in relation to the proposal's non-compliance with requirements of a s.173 Agreement applying to the property. This consent has been refused.

15 The Officer's report on the permit application raised no concerns about the merits of the proposal, leaving aside the s.173 agreement. It concluded:

While the proposal may be considered acceptable when taking into consideration the requirements of ResCode, the proposal does not comply with the requirements of the Section 173 Agreement which burdens the land. The Section 173 Agreement was developed in consultation with the surrounding community and provides a level of expectation for all development on the site from not only Council, but the community also. Certainly the Agreement makes provision for Council to consent to proposed development that do (sic) not comply with the Agreement. However, for the reasons set out in this report, such consent is not given to the proposal currently before Council. The failure of the proposal to comply with the Section 173 Agreement is a relevant consideration in making a decision in relation to the permit application. As such, this application should be refused.

16 Following receipt of that letter the applicant lodged on 2 February 2006 an Application for Review (P257/2006) of the Council's decision to refuse consent pursuant to the s 173 agreement. The application was made pursuant to s 149(1)(b) of the Planning and Environment Act 1987, which provides that:

A specified person may apply to the Tribunal for the review of -

(b) a decision of a specified body in relation to a matter if an agreement under section 173 provides that the matter must be done to the satisfaction, or must not be done without the consent, of the specified body and makes no provision for settling disputes in the matter.

A "specified person" is defined in s 148 to include the owner, user or developer of the land directly affected by the matter. A "specified body" is defined to include a responsible authority or municipal council.

17 Application for Review P257/2006 was accompanied by a letter dated 26 February 2006 and signed by Mr Gold requesting that it and Application for Review P2659/2005 be heard together. Mr Alexander had lodged out of time a Statement of Grounds in relation to Application for Review P2659/2005 of the failure of the responsible authority to determine the permit application within time. As a preliminary matter at the beginning of the hearing he made application to be joined as a party to that proceeding. The other parties raised no objection to his application. We joined him as a party pursuant to s 60 of the VCAT Act.

18 Mr Alexander, Mr Georgiev and Ms Matthews were not aware prior to the commencement of the hearing that the s 149(1)(b) Application for Review had been lodged. We asked them if they had any objection to both proceedings being heard together and if they wished to be joined as parties to the s 149(1)(b) Application. They replied that they had no objection and wished to be joined. The other parties raised no objection to their being joined. Accordingly we also joined them as parties to Application for Review P257/2006.

19 The reasons set out in the report for not granting consent pursuant to the s.173 agreement are confined to observations that the proposed development does not comply with four of the Development Requirements annexed to it. These non-compliances, which the applicant readily acknowledges, are that the proposal would have a higher dwelling density than 1:400 (it would be 1:368), primary access (in the sense of number of vehicles) would not be from Windella Avenue, the ratio of upper floor to ground floor areas for all but one of the dwellings would exceed 50%, and two of the seven dwellings would not have 75m² of private open space, including 50m² of secluded private open space.

20 Ms Lane's submission dealt with the refusal of the Council to grant consents pursuant to Clause 6 of the s.173 agreement. She made no reference to the merits of the proposal leaving aside the provisions of the agreement. Mr Gregoriev and Mr Alexander's submissions were similarly confined to the matters relating to the agreement. Their view is that the proposal does not comply with the Development Requirements annexed to the agreement and therefore the proposal should be refused. They made no submissions in relation to the bulk and visual presentation of the proposal to Windella Avenue or to the abutting reserve to the south, which were their main concerns in the previous proceeding.

21 In Tony Alexander Member Eccles made these observations:

In my opinion the Council would have done better to have adopted a more flexible approach. Given the size of the site it would have been better to encourage a development with a density higher than 1:400, a variety of dwelling sizes, perhaps basement parking in common property for all or most dwellings, and a single vehicle crossover or perhaps a couple of crossovers. The size of the site and its abuttal to the public reserve provides opportunity for a design response with a far better outcome in planning terms than the proposal before me. This is also the view of Mr Alexander and Mr Georgiev, who submitted that they would not be opposed to a more intensive development of the land, provided it was appropriately designed

22 It is our view that, leaving the s.173 agreement aside, the proposal has more than sufficient merit to warrant approval. It would not result in any unreasonable visual intrusion in the streetscapes of either Windella Avenue or Strathwyn Place, it would have no amenity impacts on abutting or nearby properties and it would present in an appropriate manner to the public reserve to the south. Amenity levels for the occupants of the dwellings would be high. It would meet all the quantifiable standards set out in the ResCode provisions of Clause 55 of the Planning Scheme, and in our opinion would also meet the objectives set out in that Clause. Ms Matthews is concerned about the impact of traffic generated by the development on Strathwyn Place and on the availability of visitor parking. We accept the evidence of Mr Robertson that the traffic generated from the development would have negligible impact on the functioning of either Windella Avenue or Strathwyn Place and that adequate visitor parking is available on site or in nearby streets, including Strathwyn Place.

23 Ms Lane submitted that Clause 6 of the s.173 agreement is silent as to the matters to be consider or taken into account when the Council arrives at a decision as to whether or not to consent to development on the land which is not in accordance with the Development Requirements annexed to the agreement and that the correct approach is to examine the purpose of the Development Requirements, which was the approach taken by the Council Officer who prepared the report on the permit application and who concluded that in this instance consents should not be granted. The question of what is the correct approach to be taken when deciding whether or not to grant consent pursuant to Clause 6 is a question of law. That question has been determined as set out below by Member Komesaroff, in accordance with s.107 of the VCAT Act.

24 Council agreed that the Tribunal has the power under s.149(1)(b) to review its refusal to consent to variation of the Development Requirements in the s.173 Agreement. This was the attitude taken in Wooldridge v Boroondara CC ('Wooldridge')[2] .

25 How should the Tribunal review council's refusal to agree to variation of the Development Requirements, pursuant to cl. 6? I repeat clause 6:

The Owner covenants and agrees that the Owner will only develop the subject land in accordance with the Development Requirements, or as subsequently agreed by Boroondara, which consent is required to be given pursuant to this clause of this Agreement.

26 The starting point would have to be informed by the Agreement itself at cl. 3.2 which makes it clear that it is intended to achieve the objectives of the Planning Scheme, in similar fashion to Wooldridge:

The Owner's use and developments of the subject land is subject to the conditions and obligations set out in this Agreement which provide for the use or development of the subject land for the specified purposes and which are intended to achieve or advance the objectives of the Scheme.

27 The development of multi-units in the Planning Scheme at the date of the s.173 Agreement was at a different standard to ResCode nowadays, which supersedes those earlier, different standards. It is those earlier standards which are expressed in Annexure A to the s.173 Agreement.

28 It is also significant that the s.173 Agreement itself defines

A reference to a "planning scheme" or "the Scheme" includes any amendment, consolidation, or replacement of such scheme and any document incorporated by reference into such scheme.

29 Planning officers stress compliance of this current proposal with current ResCode standards. Three different council officers assessing Urban Design, Traffic Engineering and ResCode all stress its high level of compliance with the Planning Scheme. Given this high degree of compliance, consent to variation appears a proper exercise of council's discretion.

30 As for the four areas of departure from the Development Requirements, I turn to the expert planning and traffic engineering evidence before us which informed our finding on the merits above. Technical non-compliance with the crude 1 dwelling: 400 m2 density specification has resulted in a superior outcome than the previous proposal in Tony Alexander which complied with it but was found wanting in other areas. Further, the former Tribunal encouraged this variation in order to achieve a superior outcome.

31 A particularly positive feature is lowering the development by soil removal, to bring it into line with its neighbours. The Windella Avenue frontage is presently elevated to level out the former bowling club's surface. Its lowering is significant in the context of this predominantly single storey neighbourhood.

32 The objective of the Development Requirements is for the development to address Windella Avenue, which is certainly does without overpowering it. Traffic engineering evidence confirms the capacity of Strathwyn Place to handle vehicle access generated by the proposal to it rather than to Windella Avenue.

33 A consequence of limiting the upper floors to 50% would have been the enlarging of the ground floors. Six of the larger upper floors are over 50%. The dwellings are setback in accordance with ResCode, are articulated and would not result in any unreasonable overshadowing.

34 Again, the private open space not only complies with the present day standards, but also provides between 40.6 to 81.1m² excluding service areas, all of which enjoy northern orientation. Further, the site abuts a public park.

35 The Development Requirements are expressed in mandatory and preferred terms. It is interesting that council itself is happy to vary the car parking standard which is expressed in the Development Requirements as a mandatory requirement of 0.66 spaces per bedroom, instead applying current ReCode standards.

36 Nor could Mr Georgiev and Mr Alexander find fault with the proposal other than its technical non-compliance with the superseded planning standards. However, Mrs Matthews was honest enough to regard it as a significant improvement to its predecessor.

37 Mrs Matthews relied on Hickey & Ors v Port Phillip CC[3] which must be distinguished on the facts. That case involved dealing with common property of a member of a body corporate pursuant to s.32 of the Subdivision Act 1988 which could only be achieved by unanimous resolution of the members of the body corporate and which unanimous resolution was not forthcoming. The s.173 Agreement contains no such impediment.

38 Salerno v Maribyrnong CC[4] is also distinguished in that it relies on mandatory building envelope provisions in a s.173 Agreement which contained no comparable cl. 6 'let out' provisions.

39 Messrs Georgiev and Alexander refused to be drawn on the merits, relying instead on council's refusal to consent under the s.173 Agreement.

40 The above analysis indicates that the current proposal complies with the current Planning Scheme which was the object of the parties at the time of entry into the s.173 Agreement. Planning scheme standards have now been superseded, which was the intention of the Agreement, as indicated by cl. 12.6.

41 Wooldridge must be distinguished because there the Tribunal upheld council's refusal to consent under the s.173 Agreement because the replacement development was out of keeping with neighbourhood character with respect to the scale of the buildings and therefore contrary to Element 3 of the Good Design Guide, the then relevant planning scheme control.

42 The final question I need consider is the mechanism to vary the Development Requirements. In Johnson v Indigo SC[5], Liston SM said:

the [s.173] agreement exists, and unless the agreement is ended (or the agreement is found to be defective) the agreement will remain an obstacle to the subdivision of the land whatever the decision of the Tribunal. Indeed an enforcement order can be made if a use or development contravenes the provisions of a section 173 agreement.

Therefore a responsible authority or the Tribunal should not lightly issue a permit for a use of development inconsistent with a section 173 agreement. However planning schemes, permits issued under planning schemes, and section 173 agreements are all tools for achieving the objectives of Planning Victoria as they are set out in section 4 of the Planning and Environment Act 1987. There may be unusual circumstances in which it is appropriate to consider whether or not a permit should be granted notwithstanding that the implementation of the permit would result in a breach of an agreement. In such circumstances it would be prudent for the permit to provide that the permitted use or development could not commence until the agreement was amended or ended.

43 Liston SM's comments were made because there was no accompanying s.149(1)(b) review, seeking review of council's refusal to consent to amend the s.173 Agreement. That explains his last sentence. In any event, he did not need to consider a mechanism, as he refused the subdivision review on the merits.

44 In Les Finnis Architects Pty Ltd v Bayside CC[6] ('Finnis'), Moles M highlighted the difficulties created by a planning merits decision contrary to a s.173 Agreement.

Irrespective of the motive of the requirement for the Section 173 agreement, I do not believe that it is appropriate for me to proceed to grant a planning permit in conflict with another planning instrument affecting the subject land. Amongst the responsibilities of this Tribunal, is the enforcement of permits and agreements. Without amendment of the agreement, a breach of that agreement would occur.

It was submitted to me that this difficulty could be resolved by including a condition on any permit granted for these two dwellings to the effect that before the development would begin, the Section 173 agreement would have to be removed from the land or varied.

This to my mind, however, is an inappropriate piecemeal course to the processing of planing approvals for this land, which flies directly in the face of the recommendations of the High Court in Pioneer Concrete (Queensland) Pty Ltd v Brisbane City Council [1980] HCA 1; (1979-80) 145 CLR 485. At page 500 of that decision, Stephen J. said that "no piecemeal series of applications is permissible ... instead, that use must be stated in appropriate detail in one application and all the land involved and the use must be the subject of the application". Later at page 504, Stephen J. also said that:

"Such piecemeal applications are likely to place planning authorities and Review Tribunals in somewhat of a dilemma. The first application may well require assessment of the entire proposal if it is to be properly disposed of: yet the second application will still remain to be dealt with on its merits as an independent matter. When it comes to be heard there will be strongly felt pressures to avoid what might seem to be conflicting outcomes if, the first application having been granted, the second were to be refused. Any detailed examination of the first application, whether by the Tribunal or by objectors, of matters which will have to be dealt with in the second is likely to be met with the objection that they are more proper for consideration when the second application is heard; and when the second application is heard it is likely to be much dominated by the outcome of the first."

It is my approach that to proceed with this dual occupancy in the absence of a consideration of the removal of the Section 173 agreement would prejudice the subsequent decision on the Section 173 variation or removal.

Also, the inclusion of a condition on any permit granted for this dual occupancy which would say that the development could not proceed until the Section 173 agreement were removed, might be said to represent or effect an amendment to the earlier planning permissions granted for the land. Is there a change of circumstances then to warrant such an alteration of that earlier permission? It was Mr Connor's submission that the change of circumstances was that the house on 28A had been constructed. This of course is only relevant if the purpose of the restriction is solely to guarantee its construction. As earlier noted this is not clear. Mr Tweedie said that there would otherwise be no change of circumstances. It is my view, however, that if there is any change of circumstances it is that the Responsible Authority have undertaken a new urban character study for this locality - which would recommend in favour of the retention of the existing dwelling and garden rather than the construction of these two dwellings, which are not reflective of the valued neighbourhood character."

45 Contrary to Finnis, I do have two reviews before me which give me jurisdiction to ensure there is no conflict between the two planning instruments, ie. the planning permit on the one hand and the s.173 Agreement on the other hand, thus ensuring there is no risk of enforcement proceedings pursuant to the Planning and Environment Act 1987, s. 180:

An agreement must not require or allow anything to be done which would breach a planning scheme or a permit.

46 I have had to vary the approach adopted by Marsden SM in RP Home Design v Banyule CC[7] because I can find no power to amend (by Order of the Tribunal) the wording of the s.173 Agreement. See the comments of Morris J in Solid Investments Australia PL v Greater Geelong CC & Others[8], which implies that one mechanism is to remove the land from the application of the s.173 Agreement and require it to enter a fresh s.173 Agreement_._ I do not wish to put council and the developer to such effort and expense in this case, although, to avoid a potential enforcement scenario, I would have preferred a more patent consistency between the development as constructed and the wording of the s.173 Agreement.

47 The alternative simpler mechanism I can pursue is to grant consent under clause 6 of the s.173 Agreement to a development which is not in accordance with the Development Requirements set out in Annexure A to the agreement, provided that the development of the land is in accordance with the plans prepared, respectively by B R Smith and Associates, surveyors and by Paul Shaw and Associates Pty Ltd dated 25 June 2005, Revision B.

Des Eccles Tonia Komesaroff

Presiding Member Member

[2] [2001] VCAT 2382

[3] [2000] VCAT 1920 (30 September 2000)

[4] [2001] VCAT 945

[5] (Red Dot) [2005] VCAT 648 (13 April 2005)

[6] [2000] VCAT 1928 (30 September 2000)

[7] [2004] VCAT 1736

[8] [2004] VCAT 2356 @ para 90.