This vacant site is a roughly triangular shaped parcel albeit with a curved street frontage and total area of 1847sq.m. It is located at the apex of Lorne Street and Leamington Crescent, bounded on its two long sides by railway reserves. Development in these streets is residential, comprising a variety of one and two storey dwellings.

Several larger recent apartments of four to five storeys mostly for student accommodation are being developed in Dudley Street on the north-east side of the railway reserve. The south-west side of the railway reserve contains single and multi-dwellings mostly one to two storeys in scale.

Description of Existing Permit Proposed to be Amended

By consent, the Tribunal directed the grant of the permit[1] for the construction of a three storey building comprising thirty-four (34) dwellings, basement car parking and a reduction of the car parking requirement. The permit was issued on 24 May 2010.

The substantive amendments to this proposal involve an increase in the number of dwellings by 11 (to 45) through the addition of two further levels to the building (total 5 storeys).

• Reducing the total number of car spaces from 49 to 48, including a reduction in the number of visitor car spaces from 6 to 2 and associated amendments to condition 15.
• Modifying the appearance of the north, south and west elevations through the introduction of a 'graffiti' mural art installation.
• Amending Condition 17 of the Permit which provides for noise attenuation measures.
• Various other modifications to the basement and the layout and size of dwellings, setbacks and areas of private open space.

Development Contributions Plan Overlay - Schedule 2 (DCPO2).

Clauses 10, 11, 15, 16, 18, 21, 22.08, 62.05 and 65.

I inspected the site and surrounds on several occasions, including on Wednesday 19 and 26 October (late morning and early afternoon respectively) and on the evening of Friday 21 October.

The King David School v Stonnington CC & Ors (Red Dot) [2011] VCAT 520

Marone Pty Ltd Joint Venture v Glen Eira CC & Ors (Red Dot) [2011] VCAT 1650

Makryllos v Port Phillip CC [2011] VCAT 735

1. Lorne Crest Pty Ltd has requested that the Tribunal amend Permit GE/PP-21828/2009.[2] The Permit was issued on 24 May 2010 at the direction of the Tribunal constituted by Member Sibonis 'on the papers' at the request of the parties[3] to that proceeding and with their consent. Plans were endorsed by the Council on 28 October 2010.
2. The proposal originally refused by the Council was for a 4 storey building with 34 dwellings. Consent was then reached for a 3 storey building with the same number of dwellings. A 5 storey building with 45 dwellings and 1 less car space is now proposed.
3. Mr Pitt, for the Applicant explained the basis for this application[4] in the following terms:

The grant of the Permit provided a level of development certainty enabling the Applicant to obtain finance not only for the permitted development but also the Amended Development and it has established that there is a demand for the proposed typology of dwellings, particularly by people employed in the immediate area but who are not students and for whom the substantial recent development of student accommodation in the immediate locality is not suitable.

1. In support of this application, the Applicant also relies upon the evidence of three witnesses who variously assessed the merits of the amendments and find them to be acceptable from an urban design, traffic, parking and town planning perspective.
2. The Council, Mr Baldachino and Achwest Pty Ltd variously oppose the amendment of the permit in the manner sought. In particular, having originally refused a 4-storey version of the development, the Council contends that the increase in the building height and number of dwellings undermines the negotiated consent position for the permitted 3-storey building. It was also submitted that the site does not enjoy strategic support given its location and that of its immediate surrounds within the Council's 'minimal change' area. Other areas of concern include the proposal's visual impacts and traffic and carparking arrangements - the latter two which are of particular concern to Mr Baldacchino and Achwest Pty Ltd.[5]

How should Section 87A of the Planning and Environment Act be applied?

1. The Tribunal may amend a permit issued at its direction if "it is appropriate to do so" under Section 87A(1) of the Planning and Environment Act 1987 ("the Act"). As other divisions of the Tribunal have previously observed, the Act does not prescribe any other relevant considerations as to how the term "if it is appropriate to do so" should be applied.
2. Having reviewed a number of cases referred to by the parties in relation to proceedings of this kind, including The King David decision[6] and Marone, there are however a number of relevant considerations that have emerged. These are aptly summarised by Senior Member Baird in Marone - a decision relied upon by Mr Bromley in support of his submissions. They are worth re-stating at length[7]:

... the scope of considerations in a Section 87A proceeding is confined to the proposed changes. A debate about the entirety of the approved development is not re-opened.

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 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.

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.

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.

Relevant contextual considerations will vary from case to case.

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 decisions 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.

... 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 mediation or consent order.

1. In Marone, Senior Member Baird also identified a number of matters relevant to a consideration of that proceeding involving a mediated outcome. I adopt these as a useful suite of considerations by which to weigh and balance the acceptability of the proposal before me. I acknowledge that this proceeding has its genesis from a permit granted by consent of the parties rather than a formal mediation. However, common to both approaches is the outcome of a negotiated settlement and the absence of any consideration of the original proposal's merits by the Tribunal. Thus, I regard these matters for consideration as having equal applicability in this case.
2. They are:

• Whether the amendment facilitates an acceptable outcome.

• Why the amendment is requested.
• What relevance is there, if any, in the lapse of time since the Tribunal's order was made.
• Whether the amendment seeks to make substantive changes to the permission granted, permit conditions or approved plans that were important in achieving a mediated outcome including a consideration of:
  • Matters that were central in the original dispute.
  • Whether the amendment seeks to win back development aspirations that were conceded or foregone in the mediated outcome.
  • Whether the amendment affects a benefit gained by another party.
• Whether the amendment materially increases the scale or intensity of the approved development or raises new considerations that were not part of the original permit application.

Are the amendments acceptable on their planning merits?

1. The amendments sought necessitates a consideration of the following key issues:

• Would the modifications to the proposal's built form outcome be acceptable?
• Would the amendments result in acceptable levels of internal amenity?
• Would the proposed car parking and traffic arrangements be acceptable?

Would the modifications to the proposal's built form outcome be acceptable?

1. The Applicant's case places considerable emphasis on the site's lack of direct abuttals with other dwellings, and thus potential amenity impacts, being surrounded on all but one side by railway reserves. Ms Jordan described the land as an island site and an anomaly in the context of the Council's local policy designation of the site within the 'minimal change' area. She says it is a strategic redevelopment site with many of the characteristics for such a site as described in Clause 16.01-3 of the planning scheme, given its proportions, lack of sensitive interfaces, proximity to the Caulfield Railway station and Phoenix Precinct Major Activity Centre.
2. Its proximity to the Caulfield campus of Monash University and the recently announced redevelopment of the Caulfield Racecourse to be known as "Caulfield Village" were also said to weigh in favour of the site's locational attributes making it a suitable candidate for more intense housing.
3. Ms Jordon's evidence and that of Mr Hudson on urban design concluded that the height, design and appearance of the higher development is contextually appropriate and would make a positive contribution to the public realm without any unreasonable visual impacts upon the surrounding area, given the massing and siting of the proposed two upper levels away from the site frontage.
4. The site's substantial size at 1874sq.m absence of any direct abuttals with existing residential properties and thus the residential amenity concerns that frequently arise at the interface with neighbouring backyards are clearly factors that weigh in favour of this site's treatment for more intense development. Its location within an established urban area and thus the contribution to metropolitan policies promoting urban consolidation and housing diversity are also positive features. I can therefore understand the Council's preparedness to reach a consent position that departs from its minimal change area policy of low scale development.
5. There are however some broader contextual issues that I need to balance and reconcile in deciding whether the additional two building levels are acceptable.
6. Relevant policies that must also be considered include the Urban Design Policy at Clause 15.01-2. Eleven design principles are set out for consideration the first of which is "context". Policy guidelines refer to several documents including the Design Guidelines for Higher Density Residential Development ("the Design Guidelines") which must be considered as relevant.
7. Also of relevance is Clause 52.35 of the planning scheme which requires the preparation of an urban context report and design response for residential developments of four or more storeys. These contextual considerations include:
   • The location of local shops, public transport services and public open spaces within walking distance.
   • Movement systems through and around the site.
8. An assessment of the characteristics of the area is to include:
   • Any environmental features such as vegetation, topography and significant views.
   • The pattern of subdivision.
   • Street design and landscape.
   • The pattern of development.
   • Building form, scale and rhythm.
   • Connection to the public realm.
   • Architectural style, building details and materials.
   • Social and economic activity.
9. This is a case where a detailed assessment of movement systems around the site, the pattern of subdivision and connection to the public realm are of particular importance.
10. There are several contextual issues that I find weigh against the intensification of the proposal now before me.
11. The very opportunities said to arise from the site's abuttals with railway infrastructure are also its key constraints. The railway tracks which diverge south of the review site, impose a physical barrier limiting convenient pedestrian and vehicular access to key facilities relied upon in support of this site's positive strategic qualities.
12. As the crow flies, the site could correctly said to be at the edge of the Phoenix Major Activity Centre and sits approximately 450m south-east of Caulfield railway station and the university precinct.
13. The true situation for a pedestrian when the physical characteristics of the site's context are considered, reveal a significantly different outcome. The distance to the Caulfield train station from the review site is closer to 900m via the underpass near Moodie Street, while the shortest route on foot to shopping facilities at the Caulfield activity centre is about 1.1km away.[8]
14. These distances are greater than the often quoted 400m benchmark for an easily achievable 5 minute walk. This is not however fatal. For a person of average fitness, these distances are not excessive, equating to about a 10 minute walk in each direction. The issue of pedestrian access does however have a sharper focus when the quality of the pedestrian environment on offer is considered.
15. Footpaths are non-existent adjacent to the railway reserve in Lorne Street, Leamington Parade and in Derby Crescent. Indeed during my daytime inspections I observed several pedestrians walking on the road pavement in Leamington Crescent and Derby Crescent rather than crossing the road to reach the footpath on the opposite side.
16. Access to shops at the activity centre on the north side of the railway line involves walking under the railway bridge at Queens Avenue to Sir John Monash Drive along a busy thoroughfare that I would describe as a hostile pedestrian environment or alternatively via the subway at the train station. The latter option is dominated by large at-grade carparks on each side of Normanby Road - within the racecourse grounds and on railway land in the leg between Queens Avenue and the train station.
17. These routes are somewhat convoluted and not ones that I would describe as offering good levels of walkability or pedestrian amenity. In my view, these factors, in combination with other policy and physical contextual features must temper development expectations for this site.

1. In relation to the existing character of the area, I begin by observing that the Leamington Crescent and Lorne Street precinct is characterised by mostly one to two storey housing, including some of the original housing stock and more recent infill development with multi-dwellings. An example of the latter is directly opposite the review site. One of those dwellings is owned by Mr Baldacchino. Development in Lorne Street and Leamington Crescent has a low scale unmistakeable domestic quality whose landscape character is substantially enhanced by the presence of Plane trees in front of the site and along the railway reserve land particularly near the convergence of Leamington Crescent and Lorne Street. Street trees further removed from the review site in Leamington Crescent in particular are of a different species on both sides of the street with a lesser height and canopy spread. They result in a more open feel to this street.
2. I am not concerned about the proposal's visual impact from the north-eastern side of the railway line in and around Dudley Street. That is an environment already characterised by larger scale residential buildings of 4 to 5 storeys. The proposal's visual relationship with that area is also a very limited one having regard to the presence of the railway embankment and juxtaposition of lots relative to the review site.
3. I accept Mr Hutson's evidence that the setbacks of the two upper most levels from which range from a minimum of 20.6m to 23.9m at the fourth level and 26.65m to 32.6m at the fifth level is a logical arrangement of these elements that will limit their exposure from the environs of Lorne Street and Leamington Crescent.
4. While the Plane trees will also soften and partially screen the development as they do to the 4 to 5 storey Dudley Street buildings from Lorne Street, the upper two levels proposed would reach a height of about 16m above ground level. These levels would most likely be readily visible on approach to the site from both Lorne Street and Leamington Crescent, but particularly the latter given its curvilinear alignment. Being deciduous, the screening effect of these trees will be somewhat lessened during the autumn and winter months.
5. Given these circumstances, my primary concern is the visual impact of the proposed upper two levels from Leamington Crescent.
6. It was common ground that there are few existing candidate lots in Leamington Crescent and Lorne Street suited to a similarly scaled building to that which is now proposed on the review site given its unique characteristics and unless perhaps site consolidation of other lots is pursued. Mr Pitt submitted that this situation lends support to this proposal in essence because it could not be said to result in substantial change nor set an undesirable precedent. Mr Bromley however said that this is precisely the reason why this development should not be supported - because only limited change within these two streets is likely to occur, particularly in light of the area's designation within a 'minimal change' area.
7. Both arguments are valid. On balance I think approval of this development at either 3 or 5 levels may well open the door to applications for more intense development of some other sites but not to the extent proposed here given the review site's lack of abuttals with other dwellings. But nor do I think that the likelihood of only limited rather than rapid change more broadly provides wholesale support for this development in its proposed form - it is but one consideration amongst many others.
8. Another of those considerations is the development's interface with Derby Street to the south-east which I regard as most problematic, particularly in the portion between Epsom Street and Queens Avenue.
9. This area is also within a "minimal change" area. Dwellings are low scale but vary in style, with various eras of development represented. The most striking feature about this area on approach from the north and Epsom Street is its very open quality across the railway reserve beyond which to the north lies the East Caulfield open space reserve. Along parts of this edge is lower lying tree planting which defines the two railway corridors. There are however breaks between this planting to allow vehicle access to the maintenance yards, with two such openings opposite the review site.
10. I also find that the larger built forms associated with the university exert a very limited visual influence upon the predominant features of Derby Street south of Queens Parade, given the distances involved, irregular street pattern and topographical features. Despite its apparent proximity to the Phoenix precinct, this area is characterised by a relatively consistent finer grain pattern of residential development which has a low scale quality of mostly one to two storeys.
11. In contrast, the building with its two additional levels will be highly exposed from this part of Derby Street. This will, in my view introduce a substantial degree of change to one's experience of this streetscape in a location not earmarked for that purpose under the Council's planning policy framework. Its 4th and 5th levels will extend for a distance of about 54m and 41m parallel to Derby Street at heights of 13.5m and 16m respectively. It is to be built on or close to its side and rear boundaries. I acknowledge that the building will be viewed from across the railway reserve - a distance of about 45m. This however is comparable to the width of three conventional house blocks. This distance must also be considered in the context of the building's substantial scale and lack of any meaningful landscaping opportunities at this interface aside from one or two trees.
12. I also accept that the development with its dynamic artwork proposed to the building's skin will enliven the otherwise utilitarian quality of the railway infrastructure including gantries and overhead powerlines. It would also add interest to a train passenger's journey. That however could occur with the building in its three-storey form consented to by the Council. In built form terms, the key issue here is the overall scale and mass of the building with the two additional levels proposed which I find to be excessive in the particular physical and policy context.

Would the amendments result in acceptable levels of internal amenity?

1. The site is highly exposed to noise from both passenger and freight trains. An acoustic report was prepared as part of the original permit application process and a second one dated 13 January 2011 was filed with the current application.[9]
2. By consent, Condition 17 of the Permit provides for noise attenuation measures in response to train noise. At the present time it reads:

The permit holder must ensure that internal noise levels of the sleeping areas of the proposed dwellings must not exceed 35dB(a) (sic.) with the windows closed; and for all other habitable rooms, levels must not exceed 40dB(A) with windows closed in accordance with relevant Australian Standards for Acoustic Control (including AS2107-1987 and AS3761 - Road Traffic).

1. Proposed amendments to this condition seek to increase the permissible noise limits.
2. The proposed new wording tabled at the hearing by Mr Pitt is:

The permit holder must ensure that internal noise levels of the sleeping areas of the proposed dwellings must not exceed 55dB(A) with the windows closed; and for all other habitable rooms, levels must not exceed 60dB(A).

1. I record that the Council did not oppose the revised wording of the condition.
2. In consenting to the grant of the permit and subsequently endorsing plans, I also make the observation that the Council appears to have accepted the internal amenity on offer to dwellings on the lower levels, some of which are identical in design to those dwellings now proposed on the two upper levels.
3. While that may be so, this occurred without a consideration of the proposal's merits by the Tribunal. I must still be satisfied that an acceptable outcome would be achieved in respect of the amendments now sought.

1. The January 2011 Acoustic Assessment which I observe is notated as a "Draft" describes a number of design measures for the new fourth level apartments but advises that fifth level acoustic design measures will need to be determined during the detailed design stage. The report advises that the apartments on the uppermost level:

... will not have wintergarden arrangements and treatments for these apartments will differ from the treatments applied at the lower levels. The inclusion of suitable glazing systems and balustrade treatments will enable the nominated internal noise criteria to be achieved.

1. In the absence of any acoustic evidence before me it is not altogether clear why the Applicant is now seeking a departure from the previously consented noise levels under Condition 17 of the Permit.
2. That to one side, assuming appropriate acoustic techniques can be employed on the basis of the less restrictive levels, it is unclear what impact the necessary acoustic measures would have on the internal amenity of the fifth level dwellings including the terraces themselves and the building's external appearance at this level. There may be no unreasonable impacts but on the basis of the information before me, I am unable to conclude with any certainty that this would be the case.

1. There are also some internal amenity issues arising from the design of the central common walkway and placement of windows to this area at the fourth and fifth levels. For example, the bedroom and meals area of Units 38, 43 and the bedroom to Unit 37 whose windows face the common walkway, require privacy measures. Sectional plans appear to show the use of obscure glazing to 1.7m above floor level and openable highlight windows above. I have some reservations about the resultant internal amenity on offer in terms of acoustic privacy and access to daylight and sunlight.
2. In terms of acoustic privacy, I find that a poor amenity outcome would arise from the placement of bedroom windows adjacent to common walkway areas and in the case of Units 38 and 43 adjacent to front entries of neighbouring dwellings.
3. In relation to daylight and sunlight access, I consider that the proposed design would be unsatisfactory with the combination of the roof above the common walkway area and the reliance upon the 'winter garden' arrangement to terraces on the opposite side. I understand that the 'winter garden' design for fourth level dwellings (and those on the two levels below) involves the enclosure and roofing of these terraces. The open plan living areas on this side are reliant on borrowed light from glazing on the east side of the building's skin and operable glass screens perpendicular to these rooms.
4. On the basis of the limited information available, the entries to Unit 35 and 41, 42, 45 also appear to have no shelter, an outcome that I regard as poor.

Would the proposed car parking and traffic arrangements be acceptable?

1. Whereas the negotiated outcome resulted in a total provision of 49 car spaces including 6 visitor spaces, 48 car spaces are now proposed, only 2 of which are for visitors.
2. Some alterations to the internal carpark are also proposed, including a reduction in the aisle width from 6.4m to 6.155m behind car stacker spaces 13 and 14.
3. Mr Pitt submitted that there is no parking issue as the Applicant is prepared to accept a condition requiring the provision of 3 additional spaces within the basement carpark by utilising a different type of car stacker within the area occupied by car spaces 15 to 22. These would be for resident use. Five at-grade spaces would be designated for visitor use elsewhere within the basement.
4. The Council seeks the provision of 6 on-site visitor car spaces necessitating 4 additional spaces and the widening of the aisle adjacent to the car stackers to 6.4m. The Council's draft conditions suggest the use of the 'Wohr Combilift 543 Standard Type' for this purpose.
5. It was Mr Fairlea's evidence that the lesser aisle width of 6.155m is still workable but results in the need for additional corrective movement upon entering car spaces 13 and 14 which are in a stacker arrangement.
6. I find that the lesser aisle width would not promote convenient and efficient vehicle movements, within a basement whose layout is already quite tight with little margin for error.
7. While the overall ratio of car spaces to dwellings is reduced, I find that with the provision of 6 visitor car spaces, the level of carparking provision would be acceptable.
8. I note that 46 car spaces would be available for 45 dwellings, all of which are one or two bedrooms[10].
9. I would expect that at times there will be demand for on-street parking by either residents or visitors which may prove to be more convenient than the basement.
10. While unrestricted kerbside parking occurs to a significant extent during the day on weekdays, based upon my inspections at both day and night and having considered Mr Fairlea's evidence, I am satisfied that there is sufficient capacity on the street to accommodate parking demand that may on occasion be generated by this development.
11. In relation to the additional traffic generated by 11 extra dwellings of the kind proposed, I am satisfied that the surrounding road network can absorb this without any unreasonable amenity or traffic related impacts. While I would anticipate some additional queuing and delays at the intersection of Lorne Street and Grange Road, I accept Mr Fairlea's evidence that the arrangement is acceptable, taking into account the "keep clear" area at this intersection. I also note that there are multiple options to access the site to and from Grange Road from, for example, via Moodie or Tattenham Street.

What impacts do the amendments have on the integrity of the consent outcome?

1. There are a number of relatively minor modifications to the layout and size of dwellings, setbacks and areas of private open space that appear to be refinements arising through the design process. These are not contentious.
2. Modifications to the appearance of the north, south and west elevations through the introduction of a 'graffiti' mural art installation were said to enhance the connection with the rail network and may reduce instances of graffiti, thus responding (in part) to Condition 22 of the Permit. While the Council does not oppose this modification, the appearance of the facades (except from Leamington Crescent and Lorne Street) together with the additional two levels of the building does in my view give rise to new considerations that were not originally considered. I will return to this issue shortly.
3. As I have mentioned, is not entirely clear why amendments to the acoustic limits under Condition 17 are now proposed.
4. The reduction in car parking spaces now sought has arisen as a consequence of the increased number of dwellings.
5. The increase in the number of dwellings by 11 and the addition of two further levels to the building was said to have arisen from the Applicant's ability to secure finance for both the permitted development and the amendments now sought. The second reason advanced for these amendments is essentially driven by market demand for the housing product on offer.
6. On one view, the flexibility that s.87A confers may be relied upon to allow these amendments. As the Tribunal explained in King David:
   1. ... 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.
7. However, in this case there is no suggestion that development would fail to attract finance if it proceeded on the basis of its permitted 3-storey form for 35 dwellings. Unlike other larger scale residential developments not uncommonly involving an internal re-organisation of dwellings or their layout such as the number of bedrooms in response to changed market conditions, that is not the situation here. This is a case where the additional dwellings are essentially the same type of housing product already permitted. It is in essence a bid for more of the same.
8. In the absence of any compelling reason to the contrary, I am of the view that this is not an appropriate use of s.87A.

1. After the Tribunal's order of the 17 May 2010, the Council issued the Permit on 24 May 2010. This application was lodged with the Tribunal on 30 March 2011, just over 10 months from the Tribunal's order.
2. I do not regard this as a substantial elapse of time. While the Tribunal in the King David decision explains that principles for repeat appeals do not strictly apply to s.87A applications, I simply note that since the time of the Tribunal's order, there has been no material change of circumstance in respect of the land itself or the planning scheme controls that apply to it, and relevant planning policy remains substantially the same.
3. While there have been some changes to the broader context which include the construction of 4 to 5 storey student accommodation buildings in Dudley Street I note that a permit was granted for at least one of these developments at 7-13 Dudley Street[11] before the grant of the permit in this case before me including the commencement of site clearance works and earthworks. More importantly, the Dudley Street precinct enjoys a much closer strategic and physical relationship with the university little more than 380m away, is located opposite a large park (Caulfield East Reserve) and would advance other policy objectives which support the provision of student accommodation in this location. Its locational attributes weigh more heavily in favour of its more intensive redevelopment than the site before me.
4. The rezoning of the land north of Caulfield racecourse[12] in April this year to a Priority Development Zone which is proposed to have new retail space including a new supermarket and office floor space together with around 1200 new apartments is also a change to the surrounding context that is a relevant consideration. While some of these facilities may be utilised by residents of this site, the final location and timing of development is as yet unknown and the distance to the closest point of this precinct on foot is about 1km away. But what is notable about that development is the emphasis on achieving safe, efficient and comfortable pedestrian movement through and beyond the precinct together with an integrated range of facilities on the doorstep of the Caulfield Activity Centre and almost directly opposite the Caulfield train station, bus and tram services.[13] Like student housing in the Dudley Street precinct, the Caulfield Village site also enjoys far greater strategic support for more intensive redevelopment in locational terms than the review site.

Do the amendments involve substantive changes important in achieving a consent outcome?

1. The matters that were central in the original dispute concern the intensity of development for a 'minimal change' area, the height and scale of the building, neighbourhood character and carparking provision.
2. The resolution of these concerns saw a reduction in the height of the building from 4 storeys to 3 storeys while maintaining the same number of dwellings.
3. The increase in the height of the building to 5 storeys to facilitate an additional 11 dwellings not only seeks to win back development aspirations that were conceded in the consent outcome but also seeks to achieve an even greater development aspiration than originally conceded by the Applicant.
4. The amendment also affects a benefit gained by the Council (which would have also benefited third parties to this proceeding) in that it reduces the ratio of car parking spaces per dwelling for residents and visitors.
5. Whereas the consent position results in the provision of carparking at a ratio of 1.23 and 0.17 resident and visitor spaces per dwelling respectively, the proposal in its current form results in ratios of 1.02 and 0.04 spaces respectively. The visitor ratio would increase to 0.11 if 5 spaces were provided on the site through the use of additional car stackers.

Do the amendments materially increase the scale or intensity of the approved development or raise new considerations that were not part of the original permit application?

1. The proposed addition of two storeys to a 3 storey building represents in my view a material increase in the scale and intensity of the consented development. The overall height of the building as shown on the endorsed plans (excluding the lift overrun) is in the order of 11m, compared with the 16m now proposed, an increase by nearly half of its permitted height.
2. While the overall form of the building is to be extended upwards its external appearance will also be substantially different to that which has been endorsed by the Council. In particular, the external finishes of the building included a 'green wall' treatment at its interface with Derby Street, comprising climbing plants on support cables which might be regarded as achieving a better fit with the landscape character of the area. As I have said while I have no difficulty with the mural treatment itself, the combination of the additional building height and the nature of its façade presentation would bring about a substantial change to the appearance of this building, particularly at its most exposed interface with Derby Street. I am also mindful that notice of the original permit application in its four storey form with a more conventional façade treatment was not given to residents of Derby Street and nor has that occurred in respect of this amended proposal.
3. A further consideration concerns the submission made by Mr Bromley where he said:

Council, in good faith, supported the amended three storey proposal. Had the proposed development remained at four storeys, or been increased to five storeys, Council would have contested the review at a hearing. It is acknowledged that Council's ambit of discretion is now limited given a planning permit has now issued for a three storey building. In effect this denies Council the opportunity to test the merits of the building in its entirety, an option Council would have exercised had a 5 storey proposal been sought in the first instance.[14]

1. I too am faced with a similar dilemma. I am unable to test the merits of this proposal in its entirety and nor has this occurred before the Tribunal in respect of any of its two earlier iterations. While there is nothing in the Act to prevent the Tribunal from considering requests involving negotiated settlements under s.87A, and indeed it is open to the Tribunal to refuse to give effect to a settlement reached by consent, I observe that the particular circumstances of this case highlight the creation of what might be termed an 'integrated assessment vacuum'.
2. What has occurred here also has the potential to undermine public confidence in reaching the settlement of planning disputes either through privately held negotiations or through the Tribunal's formal mediation process. On one view, it is an approach that may result in stakeholders including the Tribunal to take a more cautious view when deciding whether to pursue the settlement of planning disputes without the need for a merits hearing.
3. Pertinently, as the Tribunal also observed in Marone,
   1. ... Public confidence in appropriate dispute mechanisms such as mediations 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 good and sound reason, key components of mediated settlements should generally not be undone via a Section 87A application.

1. On balance, having considered both the merits of the proposed amendments and the impacts they would have on the integrity of the negotiated settlement, I find that it is not appropriate to amend the Permit. I will so order.

[1] Order dated 17 May 2010 in Application for Review P3503/2009.

[2] The matter was originally scheduled for a hearing before me on 28 July 2011. The hearing was adjourned given that other persons who may have a material interest in the outcome of this amendment had not been properly identified and advised of this application.

[3] Aside from VicTrack, there were no other third parties to that proceeding.

[4] See Page 1 of Mr Pitt's written submission.

[5] I have taken into account the written statement of grounds lodged by this party who was not present at the hearing.

[6] The Tribunal was constituted by Deputy President Dwyer and Member Naylor.

[8] As measured from the approximate mid-point of the review site.

[9] Both reports were prepared by Marshall Day Acoustics.

[10] Some 2 bedroom dwellings have study nooks but I would not count these as bedrooms because of their compact size.

[11] Permit GE/PP-21700/2009/B - a permit granted by the Council for 64 dwellings and student accommodation with up to 108 student bedrooms.

[12] Generally in the area bounded by Kambrook Road, Normanby Road and Station Street to the north-west of the review site.

[13] See for example the objectives set out in the Caulfield Mixed Use Area Incorporated Plan, dated April 2011.

[14] At paragraph 14 of his written submission.