1. The Tribunal declares that no permission is required under clause 43.02 of the Glen Eira Planning Scheme to construct buildings and works in accordance with permit GE/PP-29399/2016.

1. The decision of the responsible authority is set aside.

1. The following amended plans are endorsed under condition 2 of permit GE/PP-29399/2016:

TP-200 Rev 3 (3 September 2018), TP-201 Rev 5 (6 December 2018), TP-202 Rev 5 (6 December 2018), TP-203 - TP-210 (inc) all Rev 3 (3 September 2018), TP-300 - TP-302 (inc) all Rev 3 (3 September 2018), TP-400 Rev 4 (3 September 2018) & TP-117 Rev 3 (3 September 2017)

He tendered an affidavit sworn by Dean Priester on 3 December 2018

Application under section 149(1)(a) of the Planning and Environment Act 1987 to review the failure to grant a secondary consent to endorse amended plans under condition 2 of permit GE/PP-29399/2016 within the prescribed time.[1]

Application under section 149A(1)(a) of the Planning and Environment Act 1987 for two declarations regarding the interpretation or effect of permit GE/PP-29399/2016

The subject land is on the north side of Glen Huntly Road, about 15 metres west of Orrong Road. It is rectangular in shape with a frontage of about 17 metres, a depth of about 38 metres and an area of about 640 square metres. It comprises 3 lots. It is now vacant but recently contained 3 buildings (one single storey and two double storey). The land is located in the Elsternwick activity centre.

1. The Council issued permit GE/PP-29399/2016 (in these reasons, the permit) under the Glen Eira Planning Scheme (the scheme) on 14 June 2017 in respect of land in a commercial zone in the Elsternwick activity centre (the subject land in this proceeding).
2. The permit allows demolition of most buildings and construction of an eight-storey mixed use building, and is relevantly expressed as follows:

Demolition of existing building [sic[3]] at 415 Glen Huntly Road on land affected by the Heritage Overlay, partial demolition of buildings at 411 and 413 Glen Huntly Road on land affected by the Heritage Overlay, construction of an eight storey building with basements, comprising 37 dwellings and 2 shops on land within a Commercial 1 Zone and affected by a Heritage Overlay ...

1. Condition 1 of the permit required the submission of amended plans for endorsement by the Council. The Council endorsed plans under this condition on 30 April 2018.
2. The owner of the subject land, Jezmac Pty Ltd (Jezmac) has started the development allowed by the permit and recently completed the demolition of existing buildings. Jezmac has not yet started to construct buildings.[4]
3. By amendment of the scheme on 16 August 2018, Design & Development Overlay Schedule 10 (DDO10) started to affect the subject land. Under the DDO head-clause (ie clause 43.02), permission is required to construct a building or works in a DDO.[5] DDO10 specifies some buildings and works that do not require permission.[6] None are relevant in this proceeding. Schedule 10 also includes various design objectives, non-mandatory built form requirements and decision guidelines. I will return to these matters later in these reasons.
4. On 12 September 2018, the Council wrote to Jezmac informing it that the Council's 'preliminary' view was that, having regard to Alkero Development Pty Ltd v Stonnington CC,[7] permission was required under DDO10 before the 'development can start'.
5. Condition 2 of the permit is a condition in standard form that does not allow specified aspects of the development as shown on the endorsed plans to be amended without the Council's consent. It provides:

The layout of the site and size, design and location of buildings and works as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority. Note: This does not obviate the need for a permit where one is required.[8]

1. This type of consent is known as a secondary consent. On 14 September 2018, Jezmac applied to the Council for secondary consent under condition 2 to amend the endorsed plans.
2. On 8 October 2018, the Council wrote to Jezmac to inform it that permission is required under DDO10 before construction of the new building starts.
3. On 31 October 2018, Jezmac applied to the Tribunal to review the Council's failure to decide the secondary consent application within the prescribed period and for a declaration that, in effect, no permission is required under DDO10.[9]
4. I have decided that no permission is needed under DDO10 and that the amended plans should be endorsed. My reasons follow.

1. Jezmac contends no permission under DDO10 is required to construct the building in accordance with the plans endorsed under condition 1 of the permit. It seeks a declaration in the following terms:

The Permit confers accrued rights to, inter alia, construct a building in accordance with the endorsed plans without a new permit or an amendment to the Permit to include permission under DDO10.

1. Threshold issues relating to standing,[10] jurisdiction[11] and the factors that should be present[12] in a declaration application exist and are not in dispute.

1. As has been held on many occasions, a permit under the Planning and Environment Act 1987 (the PE Act) is a valuable right attached to land.[13] The effect of section 28(2)(e) of the Interpretation of Legislation Act 1984 (the IL Act) is that a permit is a right accrued under a planning scheme (an 'accrued right') that is not affected by the planning scheme's subsequent amendment or repeal, unless the contrary intention expressly appears.[14]
2. There is no express contrary intention in the scheme, in force either before or after the relevant amendment that commenced on 16 August 2018, that affects the permit as an accrued right.[15]
3. The more difficult task is to define the scope of an accrued right in a permit in individual circumstances, as in this proceeding. The starting point is that Courts have often adopted a principle that the construction of a statutory provision designed to protect or preserve a right (such as section 28(2)(e) of the IL Act) should be as liberally construed as the language and its context allows.[16]

1. At a more specific level, I agree with the Tribunal in Alkera in stating that the scope and extent of an accrued right under a permit depends on a careful analysis of what the permit allows, its conditions and any endorsed plans or other document approved under the permit.[17]
2. I also agree with the Tribunal's observations in Alkero that an accrued right in a permit to develop land:
   • (a) does not widen to include any rights to develop that could have been sought or were available under the scheme when the permit was granted but were not sought or granted in the permit,[18]
   • (b) includes a right to develop in accordance with amended plans that may be subsequently approved under secondary consent,[19] and
   • (c) does not narrow to comply with mandatory requirements to develop not complied with in or under the permit that were included in the scheme after the permit was granted.[20]
3. The Council particularly relies on Alkero in support of its contention that permission under DDO10 is required for the construction of the building. Before going to that case, I should refer to Callea Property Development Pty Ltd v Wyndham CC,[21] being a relevant case referred to in some detail in Alkero.

The development of the land by the construction of seventeen (17) dwellings, including sixteen (16) double-storey dwellings and one (1) single-storey dwelling with associated car parking and landscaping in accordance with the endorsed plans.

1. It will be observed that this description did not specify the zone, overlays or other provisions of the scheme under which permissions were required. However, it appears from the Tribunal's reasons that permission to develop the land was only required under the provisions of the relevant zone in the relevant scheme.
2. The Tribunal in Alkero usefully summarises the relevant facts and question in Callea as follows:

An application was made to amend the permit so that all the dwellings were of single-storey construction. Plans had been endorsed, which showed a front setback of 9 metres. Subsequent to the grant of the permit, the planning scheme was amended to introduce a Design and Development Overlay (DDO9) with a mandatory front setback of 20 metres. No substantive change to the location or footprint of the dwellings was proposed under the permit amendment but it meant that the front setback was now prohibited under the planning scheme. The question was whether additional permission was now required under the [DDO] and whether the permit could be amended given the development was now prohibited (in terms of its setbacks).[22]

1. In Callea, the Tribunal found no permission was required to develop the land under the DDO because what the development allowed by the permit did not limit the right to permission under the relevant zone. By way of obiter dictum, the Tribunal went on to observe that if the permit had allowed development expressly under the relevant zone its conclusion 'may' have been different.[23]

1. In Alkero, the Tribunal had to consider a permit that made express reference to the relevant zone or overlay under which permission was required. The permit relevantly allowed:

Demolition of buildings in a Heritage Overlay, construction of buildings and works for an aged care facility in a Residential 1 Zone, Heritage Overlay and Design and Development Overlay (Schedule 3) ... in accordance with the endorsed plans ... .

1. The Tribunal considered an application under section 87A of the PE Act to amend the permit, including the endorsed plans. The nature of the changes may be summarised as development for a number of dwellings (and not for an aged care facility), with significant changes to the building envelope including two new storeys (but no overall change in maximum height) and to the numbers and location of car spaces.[24]
2. The Tribunal refused the amendments. It found the development for dwellings would fundamentally change the permit and that the appearance and layout of the development was 'qualitatively different' and the number of car spaces 'significantly increased'. Accordingly, it found the amendments were an impermissible transformation rather than amendment of the permit.
3. The Tribunal went on to consider whether the amendments could have been allowed if the application had not been refused as a transformation.

1. The relevant scheme had been amended after the issue of the permit to rezone the land from Residential 1 to General Residential (GRZ) and include the land in an additional overlay, the Significant Landscape Overlay (SLO), and to amend the Design & Development Overlay (DDO).[25] The more important consequences of these changes were that permission was required under the GRZ, mandatory building height limits applied under both the GRZ and DDO, and a new permission was required under the SLO.[26] There were no transitional provisions relating to these changes.
2. The Tribunal would have refused the amendments because it considered some aspects of the proposed amendments exceeded the accrued rights under the permit. The Tribunal stated:

... [if] permissions [in a permit are] given under named controls, the non-inclusion of permissions under other controls means that no permissions for them exists. The permit would need to be amended to give the required permissions. Because they are new permissions, they must comply with the current provisions of the planning scheme. Such amendments could not authorise a development which is prohibited.[27]

1. I summarise the Tribunal's main findings in relation to accrued rights as follows:
   • (a) The accrued right did not include permission to develop under the GRZ. As the proposed amendments to the permit exceeded the mandatory height controls in the GRZ, the amendments would have been prohibited.[28]
   • (b) The accrued right under the DDO was no wider than the development approved under the endorsed plans of the permit. The mandatory building height requirements under the amended DDO were not met in the endorsed plans. The amendments could be approved if they did not comply with these mandatory requirements provided they did not exceed the building heights under the endorsed plans.[29]
   • (c) The accrued right did not include permission to develop under the SLO. The amendments could not be approved unless consent was sought as part of the requested amendments to the permit. As the SLO did not include any mandatory requirements to develop land, there was no bar to considering the amendment on its merits subject to consideration of the relevant decision guidelines.[30]

1. I do not accept the Council's submission that I should apply or following the reasoning in Alkero in this proceeding for the following main reasons.
2. First, there are important distinguishing features. Alkero concerned the amendment of a DDO after the grant of a permit and did not concern the introduction of a DDO (and the resulting new requirement for permission to construct a building) after the grant of a permit. Alkero also concerned the introduction of new mandatory requirements to develop under both the new zone and the amended DDO that were not met under the permit. It did not concern the introduction of a non-mandatory requirements to develop under the new overlay after the grant of a permit.
3. Second, I have respectfully come to a different conclusion about the effect of specifying in what the permit allows the name of the zone, overlay or other relevant provision of the scheme under which the permit is granted.
4. The practice of specifying the provision of the scheme by name or clause number under which permission is granted appears to have increased in recent years. It is not universally followed and many permits granted by a responsible authority or the Tribunal do not specify such provisions. I have not had the opportunity before this proceeding to carefully consider the consequences of specifying the provisions in what a permit allows.
5. I suspect the practice has arisen out of decision makers paying more attention to identifying what permissions are required in respect of a particular permit application. Such attention is very helpful in ensuring all relevant considerations under the scheme are taken into account when deciding an application, including whether the application complies with mandatory requirements.
6. However, there is nothing in or under the PE Act or the scheme that requires a permit to specify, in what it allows, the source of the permission under the scheme. The permit must include a description of what the permit allows. What the permit allows must include 'all matters that the responsible authority has decided to grant the permit for'.[31] A matter would usually include a description of the use or development or other relevant matter.
7. If, for example, five clauses of a scheme each provide that permission is required to construct a building and if a permit is granted to construct a building, there is no requirement to include in what the permit allows the five clauses (or a description of the provision such as a zone or overlay that relates to those clauses) under which the application was assessed and approved. A description of the clauses or provisions is not the same as a description of a matter for which a permit is granted.
8. A description of a matter could be made with differing degrees of particularity, depending on the nature of a particular application.
9. For example, if one or more provisions of the scheme required permission to construct a building, the permit could be expressed to allow the 'construction of a building'. It could also allow 'construction of a six-storey apartment building' although this may not be essential if the six-storey apartment nature of the building was identified in the conditions and endorsed plans.
10. In either case, the matter is described by reference to the matter for which a permit is granted and not any clause under which permission may be required. The reference to the 'matter' is important because if the matter does not include a matter for which permission is subsequently needed by amendment of the scheme before the matter is completed, permission for that additional matter may be required. On that issue, the Tribunal has found the accrued right in a permit allowing construction of a building does not include demolition of a building and if permission for the latter is introduced before any demolition is started or completed, permission for demolition is required.[32]
11. In deciding whether or not to grant a permit it is necessary to carefully consider what is the matter for which permission is sought and what are the clauses or provisions of the scheme under which permission is required for those matters.[33] The description of the matter must be, in my opinion, for what the Courts have described as a 'global permit' or a permit for an 'overall development proposal'.[34] The inclusion of the clauses or provisions of the scheme under which permission for a matter is required in what a permit allows can cause doubt as to whether the scope of the matter in what the permit allows is limited when it should not be so limited. It can cause distraction from what is the substance of the matter.
12. Consequently, the subject of the accrued right in a permit is the description of the matter for which a permit is granted as expressed in what the permit allows (together with, as I have already stated, the conditions, endorsed plans and other documents approved under the permit) regardless of whether the source(s) of the permission for the matter is included or specified in what the permit allows.

1. In making the finding in this proceeding, I am giving effect to authorities and statute but also taking into account policy considerations.

1. In recent years there have been many changes to the Victoria Planning Provisions as part of a Government planning reform program. Some residential zones have been deleted and new residential zones introduced. Changes have been made to other zones. Existing overlays have been amended. Overlays have been applied to land not previously subject to such overlays. Provisions in schemes in a section known as 'Particular provisions' have been amended or introduced. All these changes have sometimes introduced a new permission to develop and/or mandatory or preferred requirements for development.
2. If the new permission can be characterised as being for the same matter (or forming part of the same matter) as in the permit, the effect of the accrued right under the permit includes the additional permission. For example, if the matter allowed under the permit is 'construction of a building' no additional permission should be needed under any new provision of the scheme that requires permission to construct a building.
3. It does not matter, in my opinion, that the purpose, objectives or the decision guidelines under the new provisions may be different to those provisions considered when the permit was granted. In my opinion, this is giving effect to the IL Act provision that a right under a permit is not affected by subsequent amendment or repeal of the scheme. The important proviso to this principle is, as stated in the IL Act, unless the amendment or repeal of the scheme includes an express contrary intention.

1. The consistency of the accrued right in the permit with DDO10 is a merits issue and is of no relevance to the question of the scope of the accrued right. I have not considered that consistency in deciding the declaration application.
2. However, it is of some interest to make some observations about the consistency or otherwise. It is unnecessary to refer to all the provisions of the relevant amendment. It suffices to state that it introduced a permission to construct buildings or works for land affected by DDO10 and discretionary requirements relating to building height, setbacks and design and specified decision guidelines.
3. The subject land is included in precinct 3 under DDO10 known as 'shoptop heritage/character'. The discretionary requirements in this precinct include:
   • (a) A maximum building height of '14 metres (comprising up to 4 storeys)'.
   • (b) A zero primary street setback for 2 storeys and then a minimum of 5 metres to upper levels and ensuring upper levels of buildings are not visible from standing eye level directly opposite the street frontage.
   • (c) Various specified setbacks from rear lanes at different building levels.
   • (d) Various design requirements and objectives.

The permit is inconsistent with a number of these requirements, including maximum building height and street setbacks.

1. The Tribunal considered development of the subject land on two occasions.[35] The matters comprising the discretionary built form requirements in DDO10 were, in considerable substance, considered in both decisions.
2. In the first decision, the proposed development was, in summary, part demolition and construction of a six-storey building. The podium height, upper building levels setback and maximum height were all properly considered in an activity centre and heritage context and found to be acceptable.[36] The Tribunal ultimately refused to grant a permit for reasons other than the built form. In the second decision, the proposed development was, in summary, part demolition and construction of an eight-storey building. Again, the same built form matters were found acceptable.[37] The Tribunal granted a permit.

1. In this proceeding, I therefore find that the accrued right includes the construction of a building or buildings in accordance with the conditions and endorsed plans and other documents. DDO10 introduced the need for permission to construct a building. The additional permission is already part of the matter in what the permit allows and is part of the accrued right. Accordingly, no additional permission under DDO10 is required. I will therefore make an appropriate declaration.

1. Jezmac has applied to review the Council's failure to decide a secondary consent application to amend layout plans under the permit. I have already referred to condition 2 of the permit, under which the Council's consent is required to amend the layout plans endorsed under condition 1.
2. The ambit of the secondary consent procedure is not established by statute but has been the subject of many Tribunal cases. The leading authority is Westpoint.[38] That authority has been considered and applied on many occasions. Useful subsequent cases that have clarified the Westpoint principles include Zuzek,[39] Detour Investments[40] and Cook.[41]

1. The amended plans contain what I find are modest refinements to the development in the endorsed plans. Jezmac and the Council tendered detailed lists of the changes. I summarise the amendments as internal changes (including additional storage), a different car stacker model with minor resulting changes to the car park layout, minor change to basement ramp, minor increase in size of a lightwell servicing habitable rooms and minor decrease in size of a lightwell servicing non-habitable rooms, minor reduction in retail tenancy floor areas, minor changes to external finishes, additional operable windows, and additional bicycle parking spaces.
2. Relevantly, there is no change in overall building height, no change to setbacks to the street or right of way, no change in dwelling numbers or types, and no change in car space numbers.
3. I agree with the Tribunal in Alkero that if a development allowed in a permit is, by subsequent amendment of the scheme, now prohibited, the ambit of a secondary consent remains subject to the Westpoint principles. Consequently, a secondary consent that exceeded the scope of the development allowed under the permit would not be possible for two reasons. First, it could not exceed the scope of the accrued right under the permit. Second, the scope could not exceed the ability to amend the permit under the provisions of the PE Act.[42]
4. However, that principle does not apply in this proceeding because DDO10 does not prohibit the development allowed in the permit.
5. Jezmac's application is not controversial or seriously in dispute. The focus of any secondary consent application is on the scope and nature of the changes proposed to be made to the endorsed plans. I find the amended plans incorporate changes of an insignificant nature having regard to the development allowed by the permit and the endorsed plans.
6. The Council did not oppose the grant of the secondary consent, while reserving its position on whether additional permission was needed under DDO10.

1. For the above reasons, I will make an appropriate declaration that permission is not required under DDO10 and I will grant secondary consent and endorse the amended layout plans.

[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] 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.

[3] When the permit was granted there was more than one building on the subject land.

[4] Mr Priester's evidence is that on 22 August 2018 Jezmac Pty Ltd entered into a contract with AG Construction Group Pty Ltd to construct the building, with construction to start and finish around February 2019 and May 2020 respectively.

[5] Strictly speaking, no permission is required under DDO10. Permission is required under the DDO 'head' clause ie clause 43.02. In these reasons, reference to permission under DDO10 means a reference to permission under clause 43.02.

[6] Glen Eira Planning Scheme cl 43.02 sch 10 cl 2.0.

[7] [2018] VCAT 1120 (Gibson DP & Sibonis M, 16 July 2018) (Alkero)

[8] The note at the end of this condition is of interest in this proceeding. However, because it is a note it has no operative function.

[9] Jezmac also sought a second declaration that '[t]he endorsed plans may be lawfully amended pursuant to condition 2 of the Permit, including variations to setbacks, provided that the variations are generally in accordance with the plans specified in condition 1 of the Permit'. It is unnecessary to consider that requested declaration because the matter is more conveniently addressed in the secondary consent application (Application P2175/2018). Jezmac also applied under section 87A of the Planning and Environment Act 1987 to amend the permit to include permission under the DDO and to allow the development in accordance with the amended plans but that application is not before me. Jezmac intends to pursue that application subject to the outcome of this proceeding.

[10] Jezmac is a specified person - _Planning and Environment Act 198_7 s 148.

[11] _Planning and Environment Act 198_7 s 149A(2).

[12] State Transport Authority v City of Wodonga (1989) 2 AATR 175, 184; and many subsequent cases such as Hill v Campaspe SC [2005] VCAT 1128 [11] & Egan v Glenelg SC [2005] VCAT 2700 [94].

[13] See eg Elwick 9 Pty Ltd v Freeman [2018] VSC 234 [92]-[102] (Quigley J).

[14] The Planning and Environment Act 1987 contains no provision of a general nature consisting of a contrary intention relating to the right under a permit being affected by an amendment to a scheme. Section 6(2)(ke) of that Act provides that, subject to the existing use provisions in section 6(3), a planning scheme may specify the effect it has on a use or development of land for which a permit has been granted. In relation to existing uses, each planning scheme protects or confirms the right (as an 'existing use' right) in a permit to use land if the use starts before or (as long the permit has not expired) after any amendment of the scheme (see eg Glen Eira Planning Scheme cl 63.01 dot points 1 & 2).

[15] The PE Act provides that any permit may be cancelled or amended in particular circumstances and provides for the expiry of any permit, but these are not 'express contrary intentions'.

[16] See eg Seventh Colombo Pty Ltd v Melbourne City Council [1998] VSC 7 [33]; Gembrook Pines Pty Ltd v Glen Eira CC [2016] VCAT 537 [22].

[17] Alkero Development Pty Ltd v Stonnington CC [2018] VCAT 1120 [44].

[18] Alkero Development Pty Ltd v Stonnington CC [2018] VCAT 1120 [51]-[52].

[19] It is relevant to add here that there are established limits to this power. They include the need for the permit to contain a condition that empowers the granting of secondary consents and the need for the plans to not be a transformation of what the permit allows. This latter limit is part of a series of principles often called Westpoint principles, named after a case bearing that name and developed in later cases. I will return to the application of these principles later in these reasons.

[20] Alkero Development Pty Ltd v Stonnington CC [2018] VCAT 1120 [44]-[45].

[21] [2014] VCAT 466 (Callea).

[22] Alkero Development Pty Ltd v Stonnington CC [2018] VCAT 1120 [48].

[23] Callea Property Development Pty Ltd v Wyndham CC [2014] VCAT 466 [36].

[24] Alkero Development Pty Ltd v Stonnington CC [2018] VCAT 1120 [3].

[25] For a list of all the changes - see Alkero Development Pty Ltd v Stonnington CC [2018] VCAT 1120 [6].

[26] Alkero Development Pty Ltd v Stonnington CC [2018] VCAT 1120 [7].

[27] Alkero Development Pty Ltd v Stonnington CC [2018] VCAT 1120 [62].

[28] Alkero Development Pty Ltd v Stonnington CC [2018] VCAT 1120 [60].

[29] Alkero Development Pty Ltd v Stonnington CC [2018] VCAT 1120 [65].

[30] Alkero Development Pty Ltd v Stonnington CC [2018] VCAT 1120 [61], [64].

[31] Planning and Environment Act 1987 ss 63, 64, 64A & 86; Planning and Environment Regulations 2015 sch 1 form 4.

[32] See eg Brimbank CC v LS Planning Pty Ltd [2006] VCAT 2218.

[33] Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal [2003] VSCA 83 [17].

[34] Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27 [23], [29], [30], [37] & [48].

[35] Jezmac Pty Ltd v Glen Eira CC [2015] VCAT 1074 & Jezmac Pty Ltd v Glen Eira CC [2017] VCAT 810.

[36] Jezmac Pty Ltd v Glen Eira CC [2015] VCAT 1074 [28].

[37] Jezmac Pty Ltd v Glen Eira CC [2017] VCAT 810 [19], [24]-[26] & [30].

[38] Westpoint Corporation Ltd v Moreland CC [2005] VCAT 1049.

[39] Zuzek v Boroondara CC [2007] VCAT 2174.

[40] Detour Investments Pty Ltd v Boroondara CC [2007] VCAT 2254.

[41] Cook v Mornington Peninsula SC [2017] VCAT 1129.

[42] Alkero Development Pty Ltd v Stonnington CC [2018] VCAT 1120 [56].