(a) Condition 1 is deleted.

(b) Conditions in the permit are renumbered accordingly.

1. Plans endorsed under the permit are amended and the responsible authority is directed to endorse amended plans generally in accordance with plans TP1.0, TP2.0, TP3.0, TP4.0, TP5.0, TP6.0, TP6.1, TP10.0 prepared by e+mc2 and dated 22 January 2025, but modified to show:

(a) Details of the windows/door frames/shrouds. This is to allow white window frames at first floor to match the first floor wall and roof colour and black window frames at ground level.

(b) Removal of the sliding door to the study/retreat on the first floor, and the provision of a balustrade between the study/retreat and the stairwell with a height of no greater than 1.2 metres for a length of two steps.

Dylan Todd and Giulia Chelini, Town Planners of Hobsons Bay City Council

Amendment to the endorsed plans for a second dwelling on the lot that is two storeys in height

Application under section 87(2)(a) of the Planning and Environment Act 1987 (Vic) -

Clause 32.09-7 to construct two or more dwellings on a lot on land within the Neighbourhood Residential Zone

Clause 32.09-7 to construct a front fence on land within the Neighbourhood Residential Zone that exceeds the maximum height under Clause 55.02-8.

Clause 52.06-3 to reduce the standard car parking requirement

The land is a rectangular shaped allotment, with a frontage to Hudsons Road of 11.89 metres, a sideage to Robb Street of 30.48 metres, and an overall area of 362 square metres. The land presently supports a single storey detached dwelling.

1. Daniel Herrmann (the 'applicant') seeks to amend the plans endorsed pursuant to a planning permit issued by the Hobsons Bay City Council (the 'Council') in respect of land at 41 Hudsons Road, Spotswood (the 'review site'). The planning permit allows the following.
   • The demolition of a shed and fencing
   • The construction of an additional dwelling on the lot
   • Construction of a front fence; and
   • A reduction in the number of car parking spaces required under Clause 52.06-5 of the Hobsons Bay Planning Scheme.
2. I have decided to allow the application in part, and direct that the Council endorse a set of amended plans. Reasons for my decision were given orally at the conclusion of the hearing. What follows is an edited version of my oral reasons.
3. The Council raises a single concern with respect to the application to amend the endorsed plans. The Council submits that the permit was issued in accordance with a consent order, following an agreement reached at a Compulsory Conference in application for review P379/2024 on 1 June 2024. As part of the mediated agreement, an amended plans condition required the removal of a sliding door from the study/retreat area. The Council required this permit condition on the basis that it was concerned this area could otherwise be used as a third bedroom, which would have required a larger car parking waiver, noting that no on site car parking is proposed for this second dwelling. The parties agreed to the application of the condition as sought by Council on the planning permit, and the following condition is found at Condition 1(a).

Removal of the study/retreat slider door replaced with a balustrade with a height of no greater than 1.2m for a length of two steps.

1. The application of this condition to the planning permit was then followed by the endorsement of plans, which included the following first floor layout, which depicts the removal of the door from the study/retreat.

1. The applicant now proposes a range of amendments to the endorsed plans, which includes the reapplication of a sliding door to this room, and removal of the adjacent balustrade as depicted in the proposed layout set out below.

1. The Council submits that it is inappropriate for an application for amended plans to seek to reverse a concession made at a Compulsory Conference at the Tribunal. They further submit that:
   1. It is Council's submission that there has been no significant change in circumstance relevant to the decision that would support a departure from the mediated outcome reached at the Compulsory Conference for P379/2024. Further the applicant has not provided any additional justification in support of the proposed change.
2. The Council relies on two previous Tribunal decisions for its position to reinforce the concessions made at the previous Compulsory Conference. In the decision of The King David School v Stonnington CC & Ors (includes Summary) (Red Dot) [2011] VCAT 520 the Tribunal made the following remarks.

[15] Section 87A allows a permit holder to request the Tribunal to amend a permit issued at its direction, and the Tribunal may amend the permit "if it considers it appropriate to do so". In addition to the 'clarifying' amendments we have referred to earlier, it will also often be appropriate for the Tribunal to allow more substantive amendments to a permit to facilitate a reasonable change in the development or use. This might include, for example, an amendment that responds to different market conditions or opportunities that arise after the permit was issued, or changes arising during the detailed design, construction or financing of a project. Section 87A was also intended to provide this flexibility. > > [16] That said, there are some aspects of the principles that apply to 'repeat appeals' that are relevant to the Tribunal's consideration of a s 87A application to amend a permit, particularly only a very short time after it has issued. Public policy seeks to ensure that there is some finality to litigation. It is to the detriment of the planning system generally, and to the certainty of the permit review process, if permit applicants are able make repeated applications to the Tribunal on similar subject matter, as a basis for simply seeking to change an earlier Tribunal decision with which they do not agree. It undermines confidence in the planning system by affected parties (primarily responsible authorities and objectors) and the community at large, as well as imposing an additional cost burden on them[2]. > > [17] We consider that the flexibility afforded by s 87A should not be used to undermine the intent of the original Tribunal decision unless there is some sound justification for doing so. In short, s 87A should not be used as a de facto review of the original Tribunal decision in order to seek a more favourable outcome, or as an attempt to 'win back' development aspirations that were not supported in the original Tribunal decision. In our view, this would rarely (if ever) be "appropriate" for the purposes of s 87A, as it would undermine the finality and certainty of the review process. We therefore consider a degree of caution should be exercised by the Tribunal under s 87A in making substantive changes to key permit conditions upon which an original Tribunal decision was predicated - at least in the immediate period following the original Tribunal decision and in the absence of a change of circumstance or some other good reason that makes it "appropriate" to do so. > > [18] In our opinion, these principles do not only apply where the original decision of the Tribunal is set out with detailed reasons. They apply equally to a situation where the Tribunal decision comprises a consent order following mediation or a settlement, so as not to undermine the basis of that consent outcome. These principles also apply where the Tribunal decision is a 'deemed' order of the Tribunal following a call-in, as in this case.

3. This decision urges caution about the use of s87A applications to amend a permit, where the Tribunal decision comprises a consent order following mediation, unless there is a change of circumstance or some other good reason for doing so. This decision gives examples of such changes of circumstances, including responding to different market conditions, or changes arising during the detailed design, construction or financing of a project.
4. In the decision of Marone Pty Ltd Joint Venture v Glen Eira CC & Ors (includes Summary) (Red Dot) [2011] VCAT 1650 the Tribunal remarked as follows:

How have I approached the use of Section 87A PEAct in this proceeding?

[4] In the words of the PEAct, the Tribunal may amend a permit issued its direction if the Tribunal considers "it appropriate to do so". [Section 87A (1)]. There is no more specificity in the PEAct as to relevant considerations.

[5] It is now generally understood that the scope of consideration in a Section 87A proceeding is confined to the proposed changes. A debate about the entirety of the approved development is not re-opened.[3]

[6] Several Tribunal decisions have discussed aspects of the use and application of Section 87A. The King David decision refers to a number of principles including with respect to mediated outcomes. The parties relied on various comments in The King David decision and other Tribunal decisions as cited above to support their respective submissions. This included a helpful series of questions identified by Mr Connor.

[7] Section 87A confers a wide discretion on the Tribunal and provides flexibility with respect to variations to permits issued at the Tribunal's direction. Many applications asking for modest and minor permit amendments have come before the Tribunal since Section 87A was introduced into the PEAct. Many of these have been uncontentious. They have facilitated appropriate changes to permits and plans. They have often dealt with ambiguities or unintended consequences of conditions of the types discussed in The King David decision.

[8] In Makryllos, the Tribunal refers to the ability to go back on an agreement reached by mediation by means of an amendment request and the need for the Tribunal to assess the amendment request on its merits. The findings demonstrate that there can be more than one acceptable development outcome[4]. The King David decision is not inconsistent with those points. However, it adds contextual considerations in deciding whether it is appropriate to make the amendments requested in a Section 87A proceeding.

[9] Relevant contextual considerations will vary from case to case[5].

[10] The King David decision emphasises the importance of finality and public confidence in the planning system and from that perspective says:

• The flexibility afforded by Section 87A should not be used to undermine the intent of the original Tribunal decision unless there is some sound justification for doing so.
• A degree of caution should be exercised by the Tribunal under Section 87A in making substantive changes to key permit conditions upon which an original Tribunal decision was predicated - at least in the immediate period following the original Tribunal decision and in the absence of a change of circumstance or some other good reason that makes it "appropriate" to do so.

[11] Mr Connor sought to distinguish Tribunal orders post-mediation that he said are not a reasoned decision of the Tribunal in the same manner as accompanies a Tribunal order after a full merits hearing where the issues have been debated and findings made. There are differences. However, The King David decision discourages substantial amendments that undermine key or core components of a Tribunal determination including a mediated outcome. That is, it seeks to protect the integrity of the original Tribunal decision, including if that was by way of a mediation or consent order. > > [12] That is for a sound reason. Mediation plays an important role in the resolution of planning disputes in an efficient, cost effective and fair manner. Public confidence in appropriate dispute mechanisms such as mediation is essential in their success. People who have participated in good faith should have confidence that agreements will be honoured. Consistent with The King David decision, in the absence of a good and sound reason, key components of mediated settlements should generally not be undone via a Section 87A application.

1. The Tribunal finding set out above, is that in the absence of a good and sound reason, key components of mediated settlements should generally not be undone via a s87A application. This is a sound finding that is likewise supported by the decision of The King David School v Stonnington CC & Ors (includes Summary) (Red Dot) [2011] VCAT 520.
2. The applicant's written submissions do not address this issue raised by the Council, that the amendment seeks to step away from one component of a mediated outcome. Orally, the applicant concedes that there have been no change in circumstances comprising a change to the physical content of the land, or the Hobsons Bay Planning Scheme, that would support the requested departure from the mediated settlement. In support of the proposal to depart from the mediated settlement, the applicant submits the following:
   1. The mediation was only between two parties, being the Council and the applicant, who are both in attendance today. In difference to the decisions relied upon by Council, there has been no third party involvement in this proposal, or in the mediated outcome.
   2. The agreement was entered into as, at the time of the previous mediation outcome, no car parking demand assessment had been prepared, and so the Council was not willing to consider a car parking reduction associated with a three bedroom dwelling. A car parking demand assessment has now been prepared.
   3. The applicant has now gone through a detailed design phase, including the preparation of various plans and reports. As part of that process, the applicant has had more time to consider how the spaces will be used, and desires the flexibility provided by a door to this space. Further, there is greater demand for work from home spaces today, which are best designed as enclosed spaces.
3. I am not persuaded by these submissions, and instead find that it is not appropriate to divert from the component of the mediated settlement that is sought to be altered by the amendment. I make this finding for the following reasons. Firstly, the applicant has failed to identify any good or sound reason why this component of the mediated outcome should be undone. That is, there is no change in circumstances or physical context that has been identified that would justify a departure from the agreed position. Nor has the applicant identified any change in market conditions, or any change regarding the detailed design and construction process, that would necessitate this amendment. Nor has the applicant identified any change to the Hobsons Bay Planning Scheme, that would justify the applicant seeking a different outcome from that previously agreed to between the parties. Instead, this simply appears to be a second attempt by the applicant to obtain approval for an original component of the proposal, that was agreed to be changed by the mediated outcome that lead to the grant of a planning permit.
4. In response to the previously summarised submissions of the applicant I note the following:
   1. While the mediation was only between two parties, the Council was one of those parties and they do not consent to a departure from the previously mediated outcome. Regardless of the number of parties, when entering a mediated outcome a Council makes a decision as to what concerns they might be willing to let go, in order to secure other outcomes. That is why a mediated outcome should not be varied in the absence of a change of circumstances that provide sound justification.
   2. The absence of a car parking demand assessment at the time of the previous mediated outcome could have been rectified by the applicant, via the preparation and submission of such an assessment prior to a contested hearing. Instead, the applicant chose to take the offer that was on the table from the Council, to settle the matter and secure a planning permit.
   3. The mediated outcome was entered into between the parties relatively recently, on 1 June 2024. I do not regard there to be a different approach or understanding of the importance of work from home spaces since that date. Further, while I understand that the applicant has recently gone through a detailed design process, I am not told that this process has required the proposed amendment for structural or other related reasons. While I appreciate that the applicant desires to have a greater flexibility in the use of this space, that was a consideration at the time of entering into the mediated outcome.
5. The applicant also submits that the increase in reduction in car parking that is required under Clause 52.06 of the Hobsons Bay Planning Scheme is able to be justified. While that may be the case, this submission goes to the merits of the proposal, and fails to provide any justification to depart from the mediated outcome. In other words, the increased reduction in car parking associated with a three bedroom dwelling could also have been justified at the time of the Compulsory Conference in application for review P379/2024. However, the applicant at the time chose not to pursue that justification, but rather take the mediated offer that was on the table. In accordance with the Tribunal decisions of The King David School v Stonnington CC & Ors (includes Summary) (Red Dot) [2011] VCAT 520 and Marone Pty Ltd Joint Venture v Glen Eira CC & Ors (includes Summary) (Red Dot) [2011] VCAT 1650, it is not appropriate to depart from that mediated outcome, in the absence of good justification.
6. For these reasons I will allow the application in part, but require the amended plans to be further amended to remove the sliding door to the first floor study/rumpus, and add an open balustrade to part of the interface with the adjacent stairwell, prior to the endorsement of amended plans by Council. I will also require an additional change to colors as requested by the applicant, and agreed to by the Council.

[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] Although not referred to in the hearing before us, a similar sentiment has been expressed by Member Hewet in Garnaut v Yarra CC [2010] VCAT 1089.

[3] Bestway Group Pty Ltd v Monash CC (Red Dot) [2008] VCAT 86. Consequently, I have not addressed some of the broader concerns about the development referred to in some submissions (for example, with respect to the use of the lane for access into the basement).

[4] In that case, dealing with a fence treatment.

[5] The King David decision explains changes it allowed in that case. Another example is Minawood (cited above) where the Tribunal had regard to the context of the original permit application and approval that involved retention of a heritage building.