Units 2.03 and 2.04 to be not less than 45 square metres in floor area and with bedroom dimensions of at least 3x3 metres.

(d) Condition 1(g) is deleted and replaced by the following condition:

(g) The part of the building located in the General Residential Zone which is not within the building envelope referred to in condition 1(a) must not exceed 10.5 metres in height.

(e) Condition 1(i) is deleted and replaced by the following condition:

• (i) Carparking is to be allocated at the following rates:

  • Not less than one (1) car space per one or two bedroom dwelling.

  • Not less than two (2) car spaces per three (3) or more bedroom dwelling.

  • Not less than one (1) car space for the food and drink premises.

  • Not less than one (1) visitor car space

(f) Condition 1(j) is deleted.

(g) Condition 30 is varied by replacing the figure "5.0m" in the third dot point with the figure "2.9m".

(h) Condition 37 is deleted.

1. The responsible authority is directed to issue an amended permit in accordance with these orders.

Ms Teresa Bisucci, solicitor, of Best Hooper Lawyers. She called the following witnesses:

• Mr Maugan Bastone, a town planner, of urbis
• Mr John Kirakidis, a traffic engineer of GTA Consultants
• Mr Robert Galbraith, an arboriculturist, of Galbraith and Associates

It is proposed to amend Planning Permit No. GE/PP-21796/2010 which was issued at the direction of the Tribunal on 14 December 2010. The proposed amendments make significant changes to the architectural form of the four storey apartment building approved under the 2010 permit. An amended permit was granted by the responsible authority on 27 May 2015.

Application under Section 80 of the Planning and Environment Act 1987 to review conditions contained in the amended permit.

Part Mixed Use Zone and part General Residential Zone Schedule 1.

The land is subject to an Environmental Audit Overlay.

A permit is required to construct more than one dwelling on land in the Mixed Use Zone and the General Residential Zone.

The subject land is a triangular shaped parcel at the southeast corner of Alma Road and Orrong Crescent.

The land is located at the eastern edge of a small neighbourhood activity centre which extends along the north side of Alma Road to Orrong Road to the west.

There is a significant amount of apartment style residential development in the area. This development is described on p.4 of the written submission made on behalf of the applicant.

1. This proceeding arises out of an application by Gembrook Pines Pty Ltd under s.72 Planning and Environment Act 1987 to amend Permit No. GE/PP-21796/2009 granted by the Tribunal and issued on 14 December 2010 for the construction of a four storey building containing a shop and up to 9 dwellings with basement car parking for 17 vehicles, a reduction in the car parking requirements of the Glen Eira Planning Scheme and a waiver of the loading bay requirements of the planning scheme.

1. By order made on 8 December 2010, the Tribunal directed the issue of the permit referred to above (see MIG Pty Ltd and Others v Glen Eira CC.[1]
2. At that time the subject land was located in two zones. The western portion from the apex joining Alma Road and Orrong Crescent was in the Mixed Use Zone and the balance of the site was zoned Residential 1.
3. The project was subsequently revisited by its proponents and new architects were engaged. It reincarnated in a quite different architectural form basically within the same building envelope but now containing up to 15 dwellings with a food and drink premises instead of a shop. It seems to be generally accepted that the revised proposal presents a more attractive appearance at what is a landmark location in the municipality.
4. In the meantime the part of the site zoned Residential 1 was rezoned to General Residential - Schedule 1. This amendment was gazetted on 23 August 2013.

1. On 3 July 2015 the responsible authority amended the existing permit by granting a new permit, being Permit No. GE/PP-21796/2009/A. The new permit contained a number of conditions which are the subject of challenge by the permit holder in these proceedings.

1. There is one major issue and four secondary issues.
2. The major issue arises in consequence of Conditions 1(a) and 1(g) which require the entire upper floor (level 3) to be located in the Mixed Use Zone, and which require no part of the building located in the General Residential Zone to be higher than 10.5 metres. The part of the initially approved development which now lies within the General Residential Zone rises to a height of 13.3 metres.
3. These conditions are founded upon the following mandatory provision contained in Schedule 1 to the General Residential Zone.

3.0 Maximum building height requirement for a dwelling or residential building

A building used as a dwelling or residential building must not exceed a height of 10.5 metres, unless the slope of the natural ground level at any cross section wider than 8 metres of the site of the building is 2.5 degrees or more, in which case it must not exceed a height of 11.5 metres.

A lift overrun may exceed the abovementioned mandatory height requirements by no more than 1.5 metres.

There was no height limit prescribed in the Residential 1 Zone which applied when the original permit was granted.

1. The secondary issues can be summarised as follows.
   • (a) Should units 2.03 and 2.04 on Level 4 be combined to form a single unit (Condition 1(b)).
   • (b) Should the parking provision for visitors be increased, and the replacement of the proposed shop by a food and drink premises require additional car spaces (Condition 1(i)).
   • (c) Should the permit require a disabled car space (Condition 1(j)).
   • (d) Should excavation be allowed within 5 metres of the flax-leaf paper bark on Orrong Crescent.

A challenge to condition 1(c) was not pursued by the applicant.

1. The conditions under challenge in effect require that part of the development which is located in the General Residential Zone and which exceeds 10.5 metres in height to be either reduced in height to no more than 10.5 metres or relocated to the mixed use zone.
2. The portion of the originally approved development which exceeds 10.5 metres in height extends a distance of 700mm into what is now the General Residential Zone. The revised design would increase this incursion a further 2.8 metres to 3.5 metres.
3. In imposing these conditions the responsible authority placed no reliance on the mandatory height limit. Its case is based on planning policy which finds expression in clause 22.07 of the Glen Eira Planning Scheme. The policy requires a gradation of scale from commercial development down to residential development. The authority is content with the bulk and mass of the building in the Mixed Use Zone, but says that in the General Residential Zone it should be reduced in height to provide a more appropriate transition to neighbouring residential development to the east. It says that this would make the difference in scale less stark.
4. Notwithstanding the way in which the responsible authority put its case the threshold question remains whether the revised project offends the mandatory height limit to the extent that it intrudes into the General Residential Zone. This is a question of law which must be answered favourably to the applicant before the planning merits can be considered.
5. There are three possible scenario.
   • The mandatory height limit prohibits any building exceeding 10.5 metres in height on the part of the land located in the General Residential Zone.
   • It is permissible to allow building within the currently approved building envelope to the height allowed by the envelope.
   • Having regard to the existing approval the mandatory height limit does not apply to any part of the land within the General Residential Zone.
6. The starting point for a legal analysis is the critical fact that the original and amended permits authorise development of the land. They do not relate to the use of the land. The use of the land for the purpose "dwelling" is permitted as of right under the planning controls that apply both now and when the original permit was granted in 2010.
7. This means that the provisions of the Planning and Environment Act 1987 (s 6) and the Glen Eira Planning Scheme (clause 63) which protect existing uses, that is, uses that are lawful when a planning scheme is amended but may become unlawful by virtue of that amendment, can provide no comfort or assistance to the applicant in this case.
8. So far as the Tribunal is aware planning legislation in Victoria, which is to be found in both the Act and planning schemes made pursuant to the Act, have never insulated approved but as yet unconstructed development from planning scheme changes which introduce new and more restrictive development standards. If a new development standard is introduced, into the planning scheme, for example, a reduced height limit, nothing in the planning legislation exempts an approved development which has not been constructed from compliance with the new standard.
9. This means that the applicant must identify and rely on whatever rights it may enjoy under the 2012 permit, that is, the 2010 permit as subsequently amended by the Tribunal in 2012, which existed prior to the introduction of the mandatory height control. In this regard the applicant can call in aid s 22(2) Interpretation of Legislation Act 1984. Truncated to confine its application to the present case the subsection provides that where a subordinate instrument, which includes a planning scheme, is amended the amendment, in the absence of an express contrary intention shall not:

(e) Affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provision.

1. In Lakkis v Wyndham CC[2] Deputy President Macnamara (as he then was) said at para [29]:

[29] It is noteworthy that the Planning and Environment Act appears to treat existing uses in general separately from pre-existing permits. It may be that the draftsman of the State Section of the present Scheme - Clause 63, dealing with existing uses runs the two together and assumes that existing uses of both types are to be dealt with in the same manner. The provisions of Clause 63.01 with the exception of the second bullet point are a reproduction of what appears in Section 6(3) of the Planning and Environment Act. In my view the scheme of the Planning and Environment Act is to treat existing uses which are the subject of permit rights separately from other existing uses such as those which were carried on before a scheme existed at all or those which were "as of right" under a repealed scheme. Permits are specifically dealt with in Section 68 and 208 of the Planning and Environment Act. Permits create substantive rights. Changes to the substantive law are presumed not to operate retrospectively. See Maxwell v Murphy [1957] HCA 7; (1957) 96, CLR 261, 267 per Dixon CJ. Where a subordinate instrument such as a planning scheme expires, lapses or ceases to have effect, the expiry, lapsing or ceasing to have effect does not affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provision (Section 28(2)(e) of the Interpretation of Legislation Act 1984). In my view these principles preserve the operation of Permit No. 745 and it is not dependant at all for its preservation on Clause 63 of the current Scheme or on Section 6(3) of the Planning and Environment Act.

1. This raises a potentially more difficult question, namely, what is the right which is protected under the 2012 permit? What degree of specificity defines the right? Is it narrowly confined to a right to develop strictly in accordance with the plans endorsed pursuant to the permit, or should s.28(2) allow a more liberal construction.
2. Given the permissive nature of s.28(2) the Tribunal considers there is no warrant to impose a strict literal interpretation. Clearly the right cannot extend to allow a transformation as opposed to an amendment in the Addicoat v. Fox (No.2)[3] sense.
3. Adopting the purposive approach dictated by s.35(a) Interpretation of Legislation Act the Tribunal considers it appropriate that the right should be identified in a planning context. At its core town planning is concerned with the avoidance or control of land use conflict. Applying the purposive approach the right retained by a permit under s.28(2) Interpretation of Legislation Act could allow changes to the permitted development that do not alter or increase land use conflict.
4. This should enable internal changes within a permitted building envelope that do not have a material external impact. It may extend to changes that would be allowed by the secondary consent mechanism. Such amendments would rarely create a more intrusive impact, which is consistent with the purpose of both the planning legislation and the Interpretation of Legislation Act. Each case must be assessed on its own particular facts.
5. Applying these propositions to the present case the Tribunal is of opinion that the part of the project to be constructed on land in the General Residential Zone can be changed provided the alteration remains within the confines of the building envelope approved by the 2012 permit. The Tribunal will vary Conditions 1(e) and 1(g) accordingly.
6. Ms Bisucci, in an excellent submission on behalf of the applicant, placed reliance on the incisive analysis of a similar situation by Deputy President Gibson in Fosters Group Ltd v. Mornington Peninsula SC [2010] VCAT 104. However, that case is distinguishable from the present case on the basis that it was concerned with a change of land use and conditions regulating land use rather than a change in development standards prescribed by the planning scheme. The present situation is quite different.
7. Ms Bisucci also referred to the decision of the Supreme Court in Seventh Colombo Pty Ltd v. Melbourne CC [1998] VSC7. That case also concerned a change to conditions regulating what had become a prohibited use, and so is distinguishable. The commentary on the decision appears based on the proposition that the statutory power to amend a permit cannot be circumscribed by something contained in a planning scheme, being subordinate to the statute. The proposition thus as stated is unexceptional although it does lead to the anomalous result that an existing permit can be amended in a way that would be prohibited if a new or replacement permit was being sought. This is quite contrary to the purposive approach to statutory interpretation.
8. This Division of the Tribunal would simply add, with respect, that a power to amend a permit although expressed in absolute terms is nonetheless subject to the limitations imposed by the general principles of administrative law (see National Trust of Australia (Vic) v. Australian T & G Mutual Life Assurance Society Ltd [1976] VR592. Thus the power must be used for the purposes of the legislation which can compendiously be described as the prohibition and regulation of the use of land. It may be that these limitations rather than anything specific in a planning scheme constrains the power to amend a permit.
9. Moreover, in exercising its discretion to allow an amendment the responsible authority is obliged to take into account all relevant planning considerations. If controls over the use have been tightened since the grant of the permit but the amendment seeks a relaxation of the controls it would be a significant factor militating against allowing the amendment. For example, if a permit for a bar, when granted, required a closing hour of 11pm, and the planning scheme was subsequently amended to introduce a mandatory 10pm closing time, an amendment to the permit seeking to extend closing time to midnight would face a difficult hurdle.

1. In deference to the way in which the responsible authority presented its case it is appropriate to comment on the planning merits of the proposed increased incursion of the building into the General Residential Zone above a height of 10.5 metres.
2. The revised design would decrease the setback from the east boundary, which is where conventional residential development on the south side of Alma Road presently commences, from 11.8 metres to 8.3 metres. In fact the setback at Level 2 would increase from 4.9 metres to 6 metres.
3. The Tribunal considers that setbacks of this magnitude on the periphery of an activity centre are more than adequate to cope with the transition in built form from the four storeys of the proposed development to the existing residential development to the east. Moreover there is a reasonable expectation that the existing residential development to the east will experience pressures for change in the short or medium term.
4. In the absence of the mandatory height limit which now applies to the part of the land in the General Residential Zone the Tribunal would be inclined to allow the redesigned proposal.

1. Condition 1(b) requires that Units 2.03 and 2.04 be combined to form one two bedroom dwelling.
2. The council is concerned that Unit 2.04, which has a floor area of 36sq m, is undersized and will not offer future residents a reasonable level of amenity. The applicant contended that the combined apartments would create a dwelling that did not respond to market demands in the area.
3. The applicant called expert evidence from Mr Maugan Bastone, an experienced town planner. Mr Bastone suggested that the two units in question be reconfigured to create two one bedroom apartments of not less than 45sq m in floor area each. The Tribunal considers that having regard to the northern orientation of the units and the exposure of Unit 2.04 to morning sunlight a minimum floor area of 45sq m is reasonable in this case.
4. The Tribunal will adopt Mr Bastone's proposed rewording of condition 1(b).

1. The applicant called evidence from Mr John Kirakidis, an experienced traffic engineer. His evidence was the only evidence before the Tribunal relating to the adequacy of off street car parking. Mr Kirakidis' evidence was not contested and no cogent reason has been advanced as to why it should not be accepted.
2. In relation to visitor parking the Tribunal notes that there are ample vacancies on street in the vicinity of the subject land. In any event experience has shown that visitors tend to resist using underground car parking spaces.

1. The provision of disabled car parking facilities is more properly a matter to be dealt with under the Building Code and the applicable Australian Standard. There is no need to duplicate these requirements in a planning permit.

1. Mr Robert Galbraith, an experienced arboriculturist gave evidence, in relation to the protection of the flax-leaf paper bark tree. Mr Galbraith expressed the opinion that the proposed development as shown on the amended plans would not threaten the health of the flax-leaf paper bark in Orrong Crescent. The Tribunal accepts Mr Galbraith's proposal that condition 30 be amended to provide that no excavation should come within 2.9 metres of this tree.

1. There may have to be further design changes to accommodate the modified conditions. This means that it is not possible to specify with any certainty the number of dwellings the development will ultimately accommodate. The number of dwellings will be constrained by the requirements of the permit conditions.
2. The Tribunal has therefore modified the permit preamble to avoid reference to a specific number of dwellings. That number will become apparent when the proposal has been further revised.

1. For the above reasons the Tribunal will allow the application for review in part and direct the issue of a permit subject to conditions varied in accordance with the Tribunal's order.

[1] [2010] VCAT 1954

[2] [2001] VCAT 863

[3] 1979 VR 547