Amend a permit for the construction of a second dwelling, alterations and additions to existing dwelling. The permit was issued at the direction of the Tribunal. The application is to delete conditions on the permit which require amended plans to be endorsed showing the construction of a boundary fence between the existing dwelling and the new dwelling, and the screening of a first floor deck and staircase.

Request under S.87A of the Planning and Environment Act 1987 for amendment of a permit.

The site is located on the south side of Park Street, mid-block between Lang Street and Garton Street. It has a Park Street frontage of 11.87 metres, a Lang Street frontage of 12.77 metres and a length of between 43.75 and 48.58 metres. This creates a total site area of 547 square metres. The second dwelling permitted under permit no. PL07/0462 is currently under construction.

VCAT Reference Nos P21/2008 & P163/2008, Esposito & Ors v Yarra CC, 25 September, 2008.

1. A planning permit was issued at the direction of Tribunal[1] authorising the construction of a second dwelling, partial demolition and alterations and additions to an existing dwelling at 578-582 Park Street, Princess Hill.
2. The permit contained a number of conditions including a condition 1 which required amended plans to be prepared and submitted to the Council for endorsement. Two of the amendments required to be made are as follows:

1. A boundary fence between the existing house and the new dwelling to be erected a minimum of 6.68 metres south of the butterfly roof of the rear addition to the existing house;

1. Screening measures to limit overlooking from the rear staircase and first floor north facing deck of the new dwelling into the rear secluded private open space area of the existing house in accordance with standard B22 of clause 55.
2. The reason for the imposition of the conditions was specifically addressed in the Tribunal's decision. Under the heading On-Site Amenity and Private Open Space Provision the Tribunal commented as follows:

Ms Wilson pointed out the butterfly roof of the addition to the existing house has a height of 5.2 metres and will overshadow the rear open space of the house as the boundary fence between the two dwellings should be setback 6.68 metres from the existing house rather than the proposed title boundary of 6.4 metres. There is adequate open space available between the two dwellings to enable this requirement (standard B29 of clause 55) to be met and I will so order.

This brings me to Mr Glossop's evidence that, whilst a title boundary is nominated on the plans, it is not proposed to actually build a boundary fence between the two dwellings. Ms Wilson expressed concern about this and also queried the potential for overlooking between the two dwellings with or without a boundary fence.

Mr Glossop described this proposal as a unique development because both dwellings will be in the same ownership. Because of this he stated it was unnecessary to comply with all of the objectives in clause 55. I disagree with this as clause 32.01-4 of the Residential 1 Zone states a development must meet the requirements of clause 55, and clause 55 states a development must meet all of the objectives of this clause. As such, it is incumbent upon a permit application to demonstrate that all of the clause 55 objectives have been met.

The shortcomings identified by Ms Wilson can be easily addressed by permit condition requiring:

• A boundary fence to be erected a minimum of 6.68 metres south of the butterfly roof of the rear addition to the existing house; and
• Screening measures to limit overlooking from the rear staircase and first floor north facing deck of the proposed new dwelling into the rear secluded private open space area of the existing house in accordance with standard B22 of clause 55

1. The current application is to amend the permit to in effect delete conditions 1 (b) and 1(c). The justification for amending the permit as requested has not changed since the original Tribunal decision, i.e. the proposal is unique because both dwellings will be in the same ownership, and the development will be used in an integrated manner with both dwellings occupied by family and friends. On this basis, it was submitted that concerns about internal amenity are not applicable and the screening and fencing are not necessary. The applicants have however indicated a preparedness to enter into an agreement made under section 173 of the Planning and Environment Act 1987. A draft agreement was tabled and during the course of the hearing, a number of variations to the content of the agreement were discussed. In general terms however it was proposed that the fence and screen required by the conditions not be provided unless the land was sold, subdivided or rented to a party not being an immediate family member.
2. The applicant also submitted that compliance with the conditions is not necessary to achieve the relevant objectives of Clause 55 of the planning scheme.
3. With respect to the submission that the conditions are not required to meet the objectives of Clause and were based on an erroneous application of relevant clauses of Clause 55, I note that to a large extent Clause 55 is a performance based provision. Discretion is available to the decision maker in determining whether a proposal meets all the objectives of the Clause. A judgement needs to be exercised and the judgements made will vary from case to case depending on the circumstances of each case. Differences of opinion will inevitably arise, not only between applicants and objectors, but also between professionals involved in the design of residential developments including planners, designers and council officers. In the Victorian planning system the resolution of disputes arising from these differences of opinion rests with the Tribunal.
4. With respect to the discretion available to me in this matter, I agree with Mr Stokans that because this application has been brought under section 87A of the Planning and Environment Act 1987 it is not a repeat appeal and the Tribunal's long standing and consistently applied tests with respect to repeat appeals are not applicable[2]. Mr Stokans referred me to a decision of Deputy President Dwyer[3] in which the tests to be applied in section 87A applications were considered. In that decision Deputy President Dwyer said:

Section 87A therefore purports to provide a very wide discretion. There is as yet no body of law that sets out the factors that may be relevant to whether an amendment is appropriate. I do not propose to set out any exhaustive factors here, save to agree with the submission by both parties that what is appropriate will depend on the facts and circumstances of each case, and that the exercise of my discretion ought to take account of any relevant decision guidelines or considerations set out in the Act, and be reasonable and for a proper purpose having regard to the objectives of the Act and/or the specific provision conferring the discretion. This includes, in my view, whether or not the amendment of the permit would lead to an appropriate planning outcome. (Para 63)

1. I reiterate that this is not a repeat appeal. However there are elements of the rationale underlying the Tribunal's approach to repeat appeals which remain relevant to the consideration of applications under section 87A of the Planning and Environment Act 1987. As the Tribunal stated in the Amoco decision, public policy seeks to ensure that there is an end to litigation. If Applicants were repeatedly coming before the Tribunal, perhaps seeking to exhaust the patience of the Tribunal or even in an attempt to pick and choose a suitable division of the Tribunal to hear the appeal, it would be to the detriment of the appeal system. Repeated appeals impose unnecessary costs on respondent parties.
2. In the context of this case, while I am not bound by the previous decision, it is appropriate that I exercise caution when determining whether different findings on the need for the conditions are warranted. This is especially the case in circumstances where the Tribunal made specific findings about matters where a judgement did need to be exercised as to whether an objective of Clause 55 was met or not. It would be detrimental to the appeal system if repeated applications were made to amend permits on the basis that applicants did not agree with the judgement arrived at by the Tribunal in the original decision.
3. I record my finding that the decision of the Tribunal in the original decision was not based on an erroneous application of Clause 55 as alleged by the applicant and I have not been presented with any submissions or evidence which would persuade me that I ought to arrive at different conclusions to that reached by the previous Tribunal on the merits of the necessity for the conditions.
4. I now turn to a consideration of the use of a section 173 agreement as a mechanism by which to avoid the need to comply with the permit conditions. As I have indicated above a number of permutations of the proposed agreement were discussed at the hearing but in the final analysis, the basis of the agreement was that because of the personal circumstances of the current land owners, compliance with the conditions was not necessary.
5. I am not persuaded that the approach urged on me by the applicant is appropriate in this case. There are two reasons for this. Firstly the personal circumstances of a land owner or permit applicant are rarely relevant in determining whether a planning permit should be issued, or under what conditions it should be issued. Planning permits are concerned with authorising or controlling the use and development of land. Consequently planning permits run with the land and therefore land can be used and developed in accordance with a planning permit irrespective of the identity or circumstances of the land owner or occupier. I do not think it is desirable that these principles are departed from unless exceptional circumstances warrant such a departure.
6. The very rare circumstances where permits are issued with conditions restricting the identity of the owner or occupier of the land, are typically justified on the basis that the permit is only being granted because of the special characteristics, qualifications or abilities of the person which are considered to be necessary to avoid or suppress external amenity problems which any other person would not be able to achieve[4]. I do not consider the circumstances applying in this case fall into the category of exceptional circumstances which would warrant the imposition of a condition based on the personal circumstances of the current land owner.
7. The second reason I have not been persuaded that the permit ought to be amended through the use of a section 173 agreement is that I have reservations about the enforceability of a condition or agreement based on the dwellings not being rented to a party other than an immediate family member. I agree with Ms Wilson's submission that the reliance on a section 173 agreement in this case replaces the certainty associated with the existing permit conditions related to the development of the land, with a level of uncertainty around who the occupants of the dwellings actually are. I do not think it is appropriate that the Council, which will be obliged to enforce the permit conditions including the agreement, should have to concern itself with establishing the identity of the occupants of these dwellings in order to satisfy itself that permit conditions are being complied with.

1. It follows from the above that the application is disallowed.

[1] VCAT Reference Nos P21/2008 & P163/2008, Esposito & Ors v Yarra CC, 25 September, 2008.

[2] The doctrine of repeat appeals is most conveniently set out in Amoco v Berwick SC (1983) 1 PABR 166. In broad terms the principles establish that great weight ought to be accorded to the first decision of the Tribunal. In the absence of any material change of circumstances of the land, and its surrounds, changes in planning policy and/or changes in the interpretation of the facts or law relevant to the Tribunal's consideration, or changes in the proposal itself, the first decision of the Tribunal should be followed.

[3] Popular Pastimes Pty Ltd v Melbourne City Council [2008] VCAT 1184 (24 June, 2008)

1. [4] There are a large number of Tribunal decisions which have considered this issue. See for example Russell and Others v City of Greater Geelong and Valestro 1996/09049. In that case the Tribunal said:

"The normal rule is that planning permits attach to the land and run with the land. If the land is sold the benefit of the permit passes with the land to the purchaser. However, there have been exceptional circumstances where a permit has been granted subject to a condition that the permit will only be effective while utilised by a particular specified person or persons. This sort of exception has been recognised where the use sought would be expected to create amenity problems and would normally be refused for that reason but the use is considered acceptable because of the personal qualities and skills of the persons concerned. This is where that person, by virtue of such qualities, is accepted as being capable of conducting the use without occasioning the amenity problem that would otherwise be anticipated for the time being.