Michael Palmieri Architects v Yarra CC [2012] VCAT 53; The King David School v Stonnington CC & Ors (includes Summary) (Red Dot) [2011] VCAT 520; Vivante Pty Ltd v Port Phillip CC [2008] VCAT 523.

1. These proceedings are brought under section 87A of the Planning and Environment Act 1987 (the Act) by Kaazam Developments Vic Pty Ltd to amend Planning Permit No 272/201 issued by the City of Port Phillip at the direction of the Tribunal in P2994/2011[2]. This section confers the Tribunal with the power to amend a permit issued at the direction of the Tribunal if it is considered 'appropriate to do so'.[3] The Tribunal can only exercise this power 'at the request of the owner or occupier of the land concerned' or 'any person who is entitled to use or develop the land concerned'[4].
2. The application is to amend the planning permit to allow for the following:

Construction of a 4 storey apartment building with basement, dispensation from the car parking requirements from the Planning Scheme and amended access arrangements to the land adjacent to a Road Zone.

Construction of 3 storey apartment building with basement comprising 20 apartments, dispensation from the car parking requirements from the Planning Scheme and amended access arrangements to the land adjacent to the Road Zone.

1. The amendment to the planning permit will allow for an addition of a fourth level resulting in an additional 2 two bedroom apartments and alternation to the basement extent and layout to include additional car parking and storage space. With the proposed amendment, there are a number of consequential changes to the plans and these are reflected in the amended plans. Council has no concerns with these amendments, save the proposed inclusion of the new fourth level.

1. The subject site is located on a busy part of Glen Huntly Road. The surrounds are already densely developed, but mostly no higher than 3 storeys. The area is well serviced by bus and is proximate to Elsternwick Station. Such a locality, may in fact, be able to accommodate greater density than 3 storeys but whether it is appropriate to amend the permit is a matter of discretion.
2. The issue before the Tribunal is whether the permit should be amended to allow for a four storey development instead of a three storey development.

1. There is now a body of law on how far a Tribunal should go in exercising the broad discretionary powers afforded to it in a section 87A application. In Michael Palmieri Architects v Yarra CC,[5] Member Potts, at Paragraph 8, summarised these principles:[6]

1. It is important to distinguish between amendments to a permit that seek to clarify the permit's ambit or intent and amendments that seek more substantive changes;

2. Consideration should be given to the context surrounding the application. Has there been unforseen changes in circumstances either before commencing or while the project is proceeding? What time has elapsed since the permit was issued and the amendment application made?

1. Are they an attempt to win back concessions made to other parties in any earlier application?
2. Are they an attempt to re-hear the merits of an earlier Tribunal decision?

1. Are they acceptable having regard to any exceptional circumstances that are different to those under which the original Tribunal decision was made? This may include physical conditions, planning policy or planning controls.

4. Would a decision to grant the amendments undermine community confidence in the planning system and impose unfair costs burden on affected parties through repeated appeals by applicants, rather than achieving a final planning outcome?

Does this application meet the tests of a section 87A application?

1. This application is not seeking to clarify permit conditions or the like. The application is seeking a substantive change to the design through the addition of a fourth level with two additional apartments. There are consequential changes that flow on from this substantive change.
2. In terms of this substantive change to add a fourth storey, it is not apparent from what was put to the Tribunal that there are any attempts to win back any concessions made to other parties in any earlier application nor is it an attempt to re-hear the merits of an earlier decision. Ms Sharp, for the permit applicant, informed the Tribunal that the objector from the adjoining property to the west at 142 Glenhuntly Road has withdrawn from the hearing following the provision of additional screening measures to the western edge of the terrace.
3. Having said this, the comments of Deputy President Dwyer and Member Naylor in The King David School v Stonnington CC & Ors[7] at Paragraphs 17 and 18 are relevant when considering substantive changes to the key permit conditions upon which an original Tribunal decision was based:

17 We...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.

1. Turning now as to whether the change is appropriate, whilst there have been planning policy changes to the Port Phillip Planning Scheme with the introduction of Amendment C62 and, more recently, Amendment C102, overall, these amendments are still supportive of a distinct character for Elwood which, as is noted in Clause 21.06-2 of the Port Phillip Planning Scheme, supports:

Low building heights ranging from 1-2 storey for single residences and 2-3 storey for flats.

It is important that new residential development in established residential areas, including around activity centres, is sympathetic to the valued heritage and/or neighbourhood character of these locations.

1. There is a difference of opinion between the council and the permit applicant as to which Housing Growth Area, under Clause 21.04-1, the subject site sits within. Council submits that it is a "Limited Residential Growth Area" and for the permit applicant, it is within an "Incremental Residential Growth Area". From my consideration of the Port Phillip Planning Scheme, and my inspection of the surrounds, it is apparent that developments up to 3 storeys continue as the preferred character of the surrounds. There are a limited number of 4 storey developments and where this is the situation, the fourth level is usually well setback on the third level to hide visual bulk and massing.
2. I do have concerns that the application for the amendment is interfering with a final planning outcome where a 3 storey building was deemed to be a satisfactory and respectful outcome which supports the existing neighbourhood character. The effects of the permit amendment would be to cause substantive change to this character.

1. The building to the west of the site is 2 storey and the building to the east is a 3 storey one. Strategy 7.5 at Clause 21.05 of the Port Phillip Planning Scheme notes that:

In a streetscape with a diverse building scale, the height of any new residential development is generally no more than 1 storey above the height of the lower adjoining buildings, with a maximum building height of 3 storeys.

1. The addition of a fourth level will increase the density and massing of the development and I do not see the setting back of the fourth level and north facing deck a further 2 metres from the northern boundary, as adequately reducing visibility of the fourth level visual bulk when viewed from Glen Huntly Road.
2. That is, whilst the site could be one which might be able to accommodate some type of a minimal fourth level, it would require more generous setbacks from the eastern and western boundaries. I am not satisfied that the proposal creates a satisfactory diminutive effect, even with this proposed 2 metre setback. The overall result will be too great a massing and visual bulk of the fourth level which will not blend readily into the streetscape. On balance, the amendment will impact too strongly on the buildings proportions within the streetscape and will present as too great a visual massing which will detract from achieving acceptable neighbourhood character outcomes.
3. A more appropriate approach for any fourth level proposal in a predominately 1-3 storey locality, which is already a dense and busy precinct, could be one which carries greater setback and be of more recessive design on the upper level than has been proposed. The proposal viewed from oblique views especially from Foam Street, will show the obvious nature of the fourth level and this also detracts from acceptable neighbourhood character.
4. On the second day of the hearing, there was considerable discussion about the development at 113-115 Tennyson Street, Elwood,[8] and how successful this development has been to hide the effect of its fourth level. In this decision, Senior Member Byard commented at Paragraph 26:

I think it is entirely appropriate that care should be taken in approving four levels, and it is likely to be in only exceptional circumstance that such a thing should be approved in ordinary residential streets in Elwood, away from the particular centre.

1. Senior Member Byard also commented at Paragraph 31 that:

There is an important question to be assessed in relation to whether a fourth level, as here proposed, would have a detrimental effect on the amenity of the area or the streetscape, and whether it would be inconsistent with the neighbourhood character. That can only be assessed in terms of the actual proposal and the actual impacts that it would have. It is not right to suggest that the minor change in the intensity of development transforms it into something of high intensity.

1. The Vivante decision was made before Amendments C62 and C102. Even so, should it have any influence on how the surrounds of Elwood should be further developed, it may be that only with a more modest approach for a fourth level should such a development be considered. It should not be forgotten that Senior Member Byard was accepting of the fourth level proposal in the Vivante case because it was designed to be:

invisible or minor and insignificant...and provides a modest and substantially invisible graduation (paragraph 55).

1. On balance, I do not see the current proposal as being of the type which is respectful of 'modest and substantially invisible graduation'. As the site is located on a still narrow main road, less modesty may be acceptable, but in my view, the proposed setback is still limited and problematic and there are impact concerns when viewed from oblique views and from Foam Street.
2. Having considered all of the submissions and evidence from all parties to these proceedings, I find that the current planning permit for the 3 storey development continues as a satisfactory planning outcome with an appropriate balance between State urban consolidation objectives and local policy objectives which is respectful of the local character. I conclude that this is still the most appropriate planning outcome for the subject site.

1. On balance, having considered all of the submissions and evidence before the Tribunal, the amendment is not an appropriate planning outcome for the site and its surrounds. Accordingly, the three storey development continues to be the appropriate transition between the three storey building to the east and the two storey dwelling to the west as well as the appropriate planning outcome more generally, for the neighbhourhood character. I see no appropriate reason to amend the planning permit.
2. No amendment to the planning permit under section 87A.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] Artek Properties Pty Ltd v Port Phillip CC & Others of 23 January 2012 and correction Order, 1 March 2012.

[5] [2012] VCAT 53.

[6] Member Potts sought guidance from 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 [2011] VCAT 1650.

[7] [2011] VCAT 520.

[8] Vivante Pty Ltd v Port Phillip CC [2008] VCAT 523.