1. Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 the application is amended by changing the name of the applicant to:

Mr Kyle O'Brien, Town Planner, David Lock and Associates

Application to amend permit to allow the construction of eight townhouses on the land.

Application under section 87A of the Planning and Environment Act 1987 - to amend a permit issued at the direction of the Tribunal.

General Residential Zone Schedule 2; Significant Landscape Overlay Schedule 4; Design and Development Overlay Schedule 10.

Clause 32.08-6 - Construct two or more dwellings on a lot;

Clause 43.02-2 - Construct a building and construct and carry out works;

The subject site has an area of 1,115 square meters and currently contains a single dwelling and associated outbuildings.

Zhou v Maroondah CC [2016] VCAT 196, Kind David School v Stonnington City Council [2011] VCAT 520, Callea Property Developments Pty Ltd v Wyndham CC [2014] VCAT 466, Bestway Group Pty Ltd v Monash CC (Red Dot) [2008] VCAT 860, Central Estate Properties Pty Ltd v Manningham CC (Includes Summary) (Red Dot) [2014] VCAT 343

1. In 2016, the Tribunal in Zhou v Maroondah CC [2016] VCAT 196 ordered that a planning permit be issued for the construction of a four-storey apartment building comprising 16 dwellings on land at 15 Landale Avenue, Croydon.
2. The owners of the land no longer wish to pursue this development and have requested an amendment[2] to their permit under Section 87A of the Planning and Environment Act 1987 to allow the construction of eight dwellings on the land, all expect the rear dwelling to be constructed in a reverse living arrangement.
3. Council do not support the amendment, on the basis that the amended proposal is an underdevelopment of the site. They are also concerned that the revised design will not provide sufficient space for landscaping and will result in a poor level of internal amenity for the future occupants of the dwellings.

1. Having considered all the submissions and evidence and inspected the subject land and its locality I find that the key issues in this proceeding are:
   • Are the proposed changes a transformation of the proposal?
   • Is the amended proposal an underdevelopment due to its height?
   • Is the amended proposal an underdevelopment due to the reduction yield?
   • Is the design response acceptable?

1. I have determined that the application to amend the permit should be disallowed as the proposal will result in an underdevelopment of the site due to its reduced yield. My reasons follow.

ARE THE PROPOSED CHANGES A TRANSFORMATION OF THE PROPOSAL?

1. Section 87A allows for consideration of changes which are wide-ranging, from amendments which are 'clarifying' to those, such as the proposal before me which are more substantial.[3] The test that is applied when considering whether an amendment to a permit should be allowed under section 87A is whether the Tribunal considers it appropriate to do so'. The approach which has been adopted by the Tribunal when considering whether an amendment should be allowed under section 87A is to focus on the proposed changes rather than reopening debate about the whole proposal.[4]
2. The Tribunal has found on numerous occasions that it is inappropriate to amend a permit where it would result in a transformation of the original proposal. In Bestway Group Pty Ltd v Monash CC (Red Dot) [2008] VCAT 860

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

1. Where the line is between an amendment and a transformation is often subjective and depends on the circumstances of the case. As found by the Tribunal in Central Estate Properties Pty Ltd v Manningham CC (Includes Summary) (Red Dot) [2014] VCAT 343:

It is not possible to lay down a universal rule which identifies where the line is to be drawn between amendment and transformation. It is possible only to say in any particular case on which side of the line the proposal falls. However I consider that the line must be drawn in a town planning context so the question is whether from a town planning perspective what is proposed is a modification of what the permit allows, or alternatively a transformation into something different. If it is the latter it goes beyond the jurisdiction conferred by section 87A and requires a new application for permit with all the statutory process that entails.

1. In this case, if approved, the changes sought by the amendment would result in a very different development from that which was previously supported by the Tribunal. The applicant submitted that the redesign was sought to respond to market conditions. In King David, the Tribunal considered that section 87A could be used in such circumstances, however, the Tribunal in Central Estate Properties disagreed with this approach:

I note here that in the King David matter that Tribunal considered that exceptional circumstances might include market conditions as a reason for seeking amendments. I would treat such circumstances with extreme caution. In my view, in anything other than the most extra-ordinary circumstances, a change in market conditions would normally fall outside the contemplation of planning considerations. I would take the previous Tribunal's adoption of such a circumstance to not to be taken as an opportunity for permit holders to amend plans or use just because it is felt that what has been approved may not sell in the current market or that the amendments may see a better return achieved. Rather it should be taken to mean that unusual or unanticipated conditions of a most extra-ordinary nature have arisen that requires substantive changes.

While one can recognise the intertwining nature of planning, development and economic benefit, as expressed within section 4 of the Planning and Environment Act, for many commercially driven applications there will always be an element of a calculated 'market risk' as part and parcel of the process. If the calculation of such risk is found wanting once a permit is gained, then the proper and orderly planning process required under the Planning and Environment Act would seem to require an examination of a substantively revised proposal through the process of a new permit application.

1. Whilst I do have some concerns that the substantial changes of this proposal represent a transformation of the development, this was not the view of the Responsible Authority. Having found that the amendments sought are inappropriate for other reasons there is no need for me to consider whether the amended proposal represents a transformation. However, should a further redesign be contemplated by the owners of the land, a new planning permit may need to be sought if the redesign is significantly different from the previous approval.

IS THE AMENDED PROPOSAL AN UNDERDEVELOPMENT DUE TO ITS HEIGHT?

1. Council submitted that the proposal represented an under development of the land for two reasons, its yield and its height.
2. With respect to height, both the General Residential Zone Schedule 2 and Design and Development Overlay Schedule 10 allow building forms of up to four storeys in height (with a two to three storey street interface) on this site. As shown in the extract of the Maroondah Strategic Framework Plan, the site is in one of the few locations within the municipality where apartment style housing is expressly encouraged to be located.[5] The policy designation closely aligns with the area known within the Planning Scheme as the Croydon Major Activities Area ("Croydon MAA").

1. Council submitted that when the housing policy was combined with the zoning and overlay height controls, the planning scheme was only contemplating the development of four storey apartment buildings on this site. I disagree.
2. Whilst four storey apartment style forms are clearly anticipated for this site, it does not follow that every site within the Croydon MAA should be developed at this height. Clause 22.09 seeks to support a diverse range of housing in the Croydon MAA via the provision of an adequate number of smaller and affordable dwellings so that all family types, age groups, levels of mobility and affordability are accommodated. The Croydon MAA has been divided into various precincts, with differing development expectations. The subject site has been included within a housing opportunity area. The neighbourhood character statement for these areas is:

Residential development consists of low rise, multi level, multi occupancy, apartment style buildings in garden settings, where the buildings are softened and framed by canopy trees.

1. The revised design, whilst two storey in height does propose a building that I find to be consistent with the "apartment style" building form desired by the planning scheme for this site. I note that the adjoining site has been developed with a three-storey apartment building, which is a further indication that whilst apartment style buildings are expected for this area, they do not have to reach a height of four stories to be acceptable.

IS THE AMENDED PROPOSAL AN UNDERDEVELOPMENT DUE TO THE REDUCTION YIELD?

1. A key concern of Council was the loss of eight dwellings for this site. Clause 21.07-2 of the scheme specifically encourages the provision of new housing within the Ringwood and Croydon Major Activity Areas. It was Council's submission that it was critical that housing opportunities with the Croydon Activity Centre are realised to accommodate the predicted housing growth within the municipality. I agree.
2. The Croydon Town Centre Structure Plan[7], which is a reference document at Clause 22.09-4 of the scheme, estimates that an additional 91,000 new dwellings are required for Melbourne's eastern region by 2030 with 17,000 required to be provided within Maroondah. This figure is substantially less than that given in Plan Melbourne 2017-2050[8] which estimates that between 175,00 to 190,000 new dwellings are required for Melbourne's eastern region by 2050. Nonetheless, I have considered the lower estimate in my calculations.
3. The housing strategy estimates that the additional 17,000 dwellings will be dispersed throughout the municipality generally as shown in the following table:[9]

Strategic sites (Inc Ringwood and Croydon Town Centres)

1. Census data[11] indicates that in 2006, when the structure plan was written, there were 9,827 private dwellings in Croydon. By 2016 the number of dwellings had increased by 1,913 dwellings to 11,740. Based on these figures a further 2,568 new dwellings are needed by 2030 to meet the housing targets specified within the structure plan for Croydon. Based on the percentages above, 1,863 additional dwellings are needed to be established within the Croydon Town Centre to meet the housing target.
2. The Structure Plan divides the Croydon Town Centre into various precincts, with the subject site included within Precinct 5 (as shown on the map below). Six precincts within the centre are considered appropriate locations for the provision of additional housing. Whilst each precinct has differing development expectations, for simplicity's sake I have divided the 1,863 dwellings by six, to give an average of 311 new dwellings per precinct. I note that as it has been designated as the housing opportunity area, Precinct 5 could reasonably be expected to accommodate a greater amount of housing than the average. Three separate areas are designated as Precinct 5, and again dividing 311 dwellings into three, each section would be reasonably expected to accommodate a minimum of 104 additional dwellings.

1. The subject site included within the section of Precinct 5 located north of Mount Dandenong Road and east of Croydon Park, as shown on the map above. This section has been developed overtime with several medium density and higher density developments. The level of development is shown on the aerial below: [12]

1. Based on this image, I estimate that only 12 sites within the precinct are reasonably capable of being developed for additional housing, including the place of worship located at 63 Hewish Road. Dividing the 104 dwellings into 12 sites gives an average of 8.6 dwellings or 9 dwellings for each site. As the proposed amendment provides 8 dwellings, it is providing marginally less than the minimum yield that should be provided for this site.
2. I find that it is inappropriate to approve a change that would result in a yield less than the bare minimum required to meet the targets of the Structure Plan, particularly given the more recent housing targets provided within Plan Melbourne for Melbourne's Eastern Region. I find that a significant reduction in yield from 16 to 8 dwellings is unsupportable in this location, particularly given its designation as a housing opportunity area.

1. I may have been prepared to accept some reduction in yield from the approved 16 dwellings if the amended design represented an acceptable planning outcome, but I find that the amended design has several flaws which make it unacceptable. These include:
   • The extensive use of hard surfaces around the site, which is demonstrated by the reduced capacity of the site to be landscaped and the use of a gun barrel driveway;
   • Poor entry arrangement to the dwellings, as the entrance to most dwellings presents as a single door to the accessway with no glazing. Mr O'Brien provided a plan at the hearing indicating that each entry could be highlighted with a panel with a number, however I find such an arrangement to be unacceptable, and is reminiscent of a commercial loading dock;

• Poor presentation to the street, including a two-storey sheer wall, limited glazing and a poor entry arrangement to dwelling one which needs to be better resolved; and
• Extensive and unnecessary use of screening of the first-floor balconies restricting views of the driveway and reducing the internal amenity of the dwellings. Whilst this issue could have been dealt with as a condition I find that it is a further indication that this is a design that needs to be rethought.

1. Whilst I appreciate that there may be market considerations as to why the owner does not wish to pursue the approved 16 dwellings, for the reasons given above, the proposed amendments are considered to be an unacceptable response to the provisions of the Maroondah Planning Scheme. The application to amend the permit pursuant to section 87A of the Planning and Environment Act 1987 is therefore disallowed.

[1] The submissions 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] Pursuant to section 87A of the _Planning and Environment Ac_t 1987

[3] Kind David School v Stonnington City Council [2011] VCAT 520

[4] Callea Property Developments Pty Ltd v Wyndham CC [2014] VCAT 466

[6] Extracted from the plan prepared by t a square (Drawing TP05) dated 26 September 2017

[7] Croydon Town Centre Structure Plan Background Report Planisphere 2006 page 30

[8] Referenced at Clause 11.01 of the scheme

[9] I have simply divided the total figures between the locations specified to provide an estimate of the dwellings required for Croydon (e.g. for the Greenfield sites I have calculated the number between the two sites mentioned in the structure plan)