1 Application dismissed.

2 Costs reserved.

1 On Christmas Eve 2003 Member O'Leary directed the issue of a permit by Port Phillip City Council as responsible authority under the Port Phillip Planning Scheme to develop the land at 122-128 Ormond Road and 1 Docker Street, Elwood for a 'five storey building, to use the land for dwellings, reduction in car parking requirements for dwellings, restaurant and shops and waiver of loading bay requirements in accordance with endorsed plans' and subject to some 12 conditions. The first of those conditions provided for modified plans to be approved by the Council as responsible authority subject to some 13 specific features stipulated in paragraphs (a) to (m) of the proposed conditions.

2 The starting point for the new plans was to be a set of substituted plans accepted by Mr O'Leary as the basis for the application on the first day of the hearing on 25 November 2003.

3 Condition 2 was in a form which has been hallowed by decades of use in this Tribunal, in the Planning Division of the Administrative Appeals Tribunal, Planning Appeals Board and perhaps as long ago as the Town Planning Appeals Tribunal, namely:

The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

No equipment (including but not limited to, ducting and piping, air-conditioning and heating units and satellite dishes), services and architectural features other than those shown on the endorsed plan shall be permitted (other than Authorised Telecommunications facility) unless otherwise agreed to in writing by the Responsible Authority.

5 Meanwhile, acting under Federal legislation the telecommunications operator Vodafone obtained authority to construct a mobile phone tower on the roof of the development as approved by the Tribunal. A depiction of the north-west elevation as part of the Vodafone project shows the building itself in a materially different form from the one which appeared in the plans substituted at the Tribunal hearing. The Vodafone depiction of the north-western elevation showed what seems to be a roof garden occupying the entire roof area, a feature which did not appear in the plans substituted at the Tribunal and which was not catered for in any of the permit conditions. Construction has proceeded on the complex, the uppermost floor is yet to be constructed, however the tower including a staircase giving access to the roof level has been constructed and as an interim measure the Vodafone facility has been placed on top of the stairs structure. The visual effect of this is to leave a tall stark metal membered structure jutting high above the existing main structure, topped off with a telecommunications tower. The aesthetic effect which was demonstrated by a number of photographs produced at the hearing of the present proceeding is unpleasing to say the least.

6 The appearance of this unpleasing manifestation on the skyline seems to have caused Mr R.E. MacMillan who lives at No. 22 Docker Street, Elwood and is an engineer by profession to make some enquiries. Initially he obtained a copy of the north-western elevation depiction provided in connection with the Vodafone project. He was perplexed by the non-conformity of this elevation with the plans substituted at the Tribunal hearing before Mr O'Leary. This led him to make further investigation.

7 It appears that on 4 October 2004 the Port Phillip City Council as responsible authority endorsed the revised plans required by Condition 1 of the permit which Mr O'Leary directed to issue which was numbered 103/2003. On 12 November the Council received a request to amend planning permits/plans from the permit holder Havercoft Investments Pty Ltd. Council's Planning Officer did not approve the amendments as initially proposed and a further set of plans was lodged on 20 January 2005. By letter dated 9 February 2005 Havercroft was advised:

That the submitted amended plans had been approved pursuant to Section 73 of the Planning and Environment Act 1987. Please find enclosed copy of the amended plans as endorsed.

8 On 4 April 2005 Mr MacMillan lodged an application with the Tribunal seeking a declaration under Section 149B of the Planning and Environment Act 1987 that the amendment to the approved plans 'be declared invalid'.

9 In supporting his application Mr MacMillan stressed that his attack upon the revised plans focussed only upon those aspects of them which led the revised plans to 'exceed the building height and envelope approved by VCAT by its orders dated 24 December reference P1435/2003'. He said that he had

No objection to any of the other amendments approved by the Responsible Authority dated 9 February 2005 below RL 18.80 with a possible question mark over the change of material of the roof level itself'.

10 Mr MacMillan took me to a number of elevations from both the plans substituted at the hearing before Mr O'Leary as showing a maximum height of main structure as RL 18.80 (breached by a lift overrun) and the revised plans which he challenged. The substituted plans and the plans originally endorsed showed a lift overrun to RL 20.20. They depicted no additional protrusion above normal roof line to give access to the roof area by stairs. The newly endorsed plans took the lift overrun up to RL 21.30 and added a structure described as 'stair enclosure'. Mr MacMillan said:

What is now shown creates the visual impact and profile of almost a full additional storey especially from both Docker Street and 125 Ormond Road residences.

11 Mr MacMillan said that Council had failed to take into account the amenity effect of these changes. He said in particular it failed to take account of the amenity effect of the changes on the following properties:

•

4 Docker Street

•

6 Docker Street

•

13 and 15 Docker Street

•

22 Docker Street

•

125 Ormond Road.

12 That this was so, Mr MacMillian submitted was indicated by a letter from Council's 'Urban Planner', Ms Birmingham to the Registrar of the Tribunal dated 7 April 2005 providing details 'in accordance with Practice Note No. 2, Clause 7'. The letter stated that the names of those who 'may be affected by the declaration' were:

13 Mr MacMillan also complained of the provision of additional roof plant areas.

14 Mr MacMillan said that for a minor amendment to be approved by the responsible authority under Section 73 of the Planning and Environment Act 1987 the responsible authority must be satisfied that the amendment 'does not change the effect of any condition required by the Tribunal'. Mr Docker said that these amendments had that effect on Condition 8 (quoted above) because 'the plant area to now extend to the edges of the building and by not continuing to require specific approval of plant and equipment in the areas now indicated on the drawings'.

15 According to Mr MacMillan the amendments:

Changed the effect of the conditions required by the Tribunal by permitting more plant areas, the plant area to now extend to the edges of the building and by not continuing to require the specific approval of plant and equipment in the areas now indicated on the drawings.

16 He complained that the additional plant areas were approved in circumstances where they were 'totally lacking in detail - height, noise, architectural appearance'.

17 He continued stating:

That the Council has failed to take into account the proposed additional height and bulk introduced by the stairwell and plant and equipment elements take the overall project beyond what was already described by Mr Andrew Hutson in his written statement for the hearing before Mr O'Leary in the following terms:

The height of the proposal would be at the upper end of the height of substantial buildings in the vicinity. The scale of the development generally matches the recent development of 125 Ormond Road, directly across from the Ormond Road Docker intersection.

18 He complained that Council took no or no sufficient account of the effect that the amendment would have 'in terms of Landmark View and Vistas'.

19 Mr MacMillan said that Section 73 of the Planning and Environment Act 1987 could not justify these amendments because an amendment could only be made under Section 73 if the amendment would not 'cause an increase in detriment to any person'. He said:

The increase in building bulk and envelop affects many of the surrounding properties and increases the detriment. ... the overall impression of the building will be more substantial that [sc than] was presented to the Tribunal in 2003.

20 He referred to Mentone Mansions Pty Ltd v Kingston City Council (2000) 6 VPR 128. Mr MacMillan relied upon a passage in the Tribunal's reasons at paragraph 27 where the learned Members stated:

Nevertheless, it is useful to observe that the idea of increased detriment should be based on the ability of an ordinary person to perceive or discriminate change.

That any normal person will clearly notice the difference between the original proposal with a small lift overrun - 1.4m high and fairly unobtrusive - and a stair tower 5m x 2.56m x 2.7m high, increased lift overrun and additional plant area that extends both longitudinally along the roof and right edge of the building. Moreover the effect is directly visible from my bedroom window and a major increase in detriment to 5 and 13 Docker Street and 125 Ormond Road as well as the streetscape of Ormond Road in general.

Therefore, said Mr MacMillan, to use Sections 72 and 73 of the Planning and Environment Act which deal with minor amendments was 'an abuse of process'. He said that the permit holder

In fact intends to turn the entire roof area into a "rooftop garden" and marketed some of the units last year - 2004 - on the basis of "fabulous rooftop gardens" but failed to inform the Council of that fact when submitting the amendments thus far.

22 He referred to Townley v Cardinia Shire Council [2001] VCAT 1789 and contended that the amendments in question 'are not inconsequential in nature and the additional (undisclosed) intentions of the developer are very consequential.' Finally, he said that Council had failed to take into account Clause 19.03-2 of the State Planning Policy Framework to the following effect:

•

New development should aspire to the high standards and architecture in urban design.

•

Any rooftop plant, lift over-runs, service entries, communications devices, and other technical attachments should be treated as part of the overall design.

23 According to Mr MacMillan adding things bit at a time clearly does not achieve these objectives especially the second one. Mr MacMillan asked for a declaration:

That all alterations to the original VCAT determination P1435/2003 above RL 18.80 be set aside and the Council be directed to require full details from the developer and to consider any changes the developer wishes to make under Primary Planning provisions including advertising.

24 Mr Cicero, solicitor for Port Phillip City Council, opposed the making of any declaration. Mr Cicero submitted that in the present proceeding which was for declaratory relief, a challenge to Council approval of the amended plans could only be successfully mounted:

On the basis that no reasonable council (by delegation) acting rationally could have reached the decision that it did. In other words the enquiry of this Tribunal is not whether it would have reached the same decision reached by the delegate on the two matters that had been brought into dispute by the applicant for declaration, but that the view reached by the delegate was rationally open to her.

25 According to Mr Cicero the increase in height of the lift overrun would be '1.1m'. He observed that the lift overrun was set back 3.4m from the Docker Street boundary, 13m from the Ormond Road boundary and 28m from the dwelling at 3 Docker Street:

It will not be visible from within that dwelling unlikely to be visible from the private open space area to the rear of that dwelling. The lift overrun will not be visible to persons standing in front of the building on the northern footpath of Ormond Road.

26 Mr Cicero conceded that the lift overrun would be visible from a distance but he said the increase in height 'will be imperceptible in terms of visual bulk from any relevant public or private realm viewing opportunity'.

27 As to the stair access, he said this would be set at RL 21.45 or 2.65m above the upper parapet of the building. There is a 9.1m setback from Docker Street and 18.8m from Ormond Road set back 23m from Docker Street. Therefore, he said the overrun would be unlikely to be visible from the opposite side of Docker Street or to a person on the northern or southern footpaths of Ormond Road standing in front of the building. Again, he conceded the structure would be visible from longer distances but 'having a width of 2.4m with a length of 4.6m [it would] create imperceptible visual amenity to any person, when viewed either from the public or private realm'. He said there was no unreasonable visual bulk 'to the detriment of the viewer' and no overshadowing issues. Mr Cicero took me in detail to the report of the Urban Planner who acted as Council's delegate in approving the amendments to the effect that the increase in height of the lift overrun was due to a 2m internal clearance plus 250mm beam installation and 250mm fixed slab. According to the report it was these regulatory requirements that required the increase in height of the overrun. As to the stairs, he noted the delegate's conclusion that the height of the stairwell was necessitated by an internal height of 2.4m and a slab thickness of 250mm. The delegate noted 'building services usually allowed to project a maximum of 4m above the floor level of the building. The stair is located centrally on the roof which will assist in minimising its visibility from the street ...'. Mr Cicero referred to Grosios v Monash City Council [2003] VCAT 626; Interbuild Pty Ltd v Whitehorse City Council [2004] VCAT 1514; Adrian Atkins and Associates v Knox City Council [2005] VCAT 170 and 155 Domain Road Pty Ltd v Melbourne City Council [2005] VCAT 637.

28 The permit holder, Havercroft Investments Pty Ltd was represented by Mr Bisset of Minter Ellison. Mr Bisset submitted that on an application such as the present, the Tribunal does not carry out a merits review but determines whether the amendment to the plans was done legally. He referred to Thompson v Stonnington City Council (P641/2003 and P870/2003); Hobsons Bay City Council v Malone {2001] VCAT 1569. According to Mr Bisset while Council's assessment of the amendment request focussed on Sections 72 and 73 of the Planning and Environment Act the applicant did not elect to invoke the power under those sections 'rather, when the amendment requested both, Council required the request to be made on a form specifying Section 72.' He said that therefore the amendment should be considered 'against all possible alternatives'. He referred to the remarks of the Tribunal in Thompson's case. According to Mr Bisset the request for amendment to the plans could have been considered either as an informal consent under Condition 2 of the original permit which I have quoted above, under Section 62(3) of the Planning and Environment Act 1987 which allows the Responsible Authority to approve an amendment to any plans, drawings or other documents or as Council appears to have treated the request, one made under Sections 72 and 73 of the Planning and Environment Act which deals with 'minor amendments'.

29 According to Mr Bisset, Council's determination was clearly open to it. Since the delegate who made the determination was an experienced town planner having the necessary information available to her, the plans which are provided for the purpose of obtaining a permit under the Planning and Environment Act

Will of necessity not include working drawings or engineering details which are expected to be subsequently resolved as part of the evolution of a detailed building design ultimately culminating in building approval under the Building control Act.

30 He said the original endorsed plans included a reference to roof plant and Condition 8 of the permit specifically provided for Council to deal with these issues by consenting to 'design evolution through to building approval'. He said that each amendment 'was evaluated by the delegate against the relevant statutory test' and the delegate and Council were aware of the relevant statutory provision. He observed that the delegate did not approve the initial plans that were submitted and that the height of the stairwell access and the lift overrun were determined by the Building Code of Australia with an allowance 300mm for the clearance necessary for equipment and materials accessing the roof and Australian Standard 1735. Council was, he said, entitled to have regard to the overall height of the approved building with setback and intervening street trees.

31 Mr Matticka attended the hearing. Although he was not a party to the present application, I permitted him to make a short statement. I declined to allow him to make a full submission. Mr Matticka produced photographs demonstrating the visibility of the stairwell surmounted by the telecommunications tower from a number of windows in his house. He stated that he supported Mr MacMillan's application. Mr MacMillan also tabled a short submission made on behalf of Fiona Young and Margaret O'Donnell of 32/125 Ormond Road, Elwood and Ian and Sarah Lee of 31/125 Ormond Road, Elwood. They said that the increase in height and bulk of the stair tower, plant areas and rooftop garden 'are in the direct line of sight of both [our] properties'. They were not minor amendments. They complained that residents had no opportunity for consultation and the amendments including 'the stair tower, proposed increased plant area and rooftop garden are of a sufficient size and nature to cause significant detriment to the outlook and amenity of both [our] properties'. They supported Mr MacMillan.

32 I accept the submission made by Mr Cicero and Mr Bisset that the present proceeding is not to be approached in the manner in which the Tribunal approaches an ordinary merits review. Various formulations were put. In truth there is no single test for whether declaratory relief should be given under Section 149B of the Planning and Environment Act 1987 where the purport of the application is that a particular action or determination is void. There are as many grounds for the Tribunal to make such a declaration as the general law on judicial review provides grounds for attack upon administrative action. Whole textbooks have been written on the subject. What is necessary is that a legal flaw must be found in what has been done. It is insufficient for an applicant for declaratory relief to persuade the Tribunal that had the Tribunal been 'standing in the shoes' of the decision maker it would have done otherwise. If the decision maker has acted legally and properly in making the impugned determination it cannot be declared invalid.

33 First, all argument about the proposed roof garden should be put to one side. It will be recalled that this was taken up by Mr MacMillan and his supporters. So far as I know no amendment to the plans for this development permitting a roof garden has been endorsed by the responsible authority. According to Mr Cicero this matter was broached with Council but the permit holder was told that a new permit rather than a mere amendment should be sought for the roof garden. When and if such a new permit is sought, Mr MacMillan and his supporters in the present proceeding will have the ability to make submissions to the responsible authority. If their submissions are not accepted they will then have the opportunity to seek a full merits review in the Tribunal. I am unable to see how the roof garden proposal has any relevance to the endorsement of amended plans which is under attack in the present proceeding.

34 Next, I accept Mr Bisset's submission that Council's determination to endorse these plans should be considered against each possible source of authority, not merely against Sections 72 and 73 of the Planning and Environment Act 1987 as being the basis upon which Council considered the application. Mr Bisset's contention that his client did not seek to invoke any particular power and that it was Council that elected to deal with the matter under Sections 72 and 73 of the statute, stood uncontradicted.

35 There is a well established principle in private law that the exercise of a right, for instance, to cancel a contract may later be defended in court upon a basis other than the one which the actor had in mind, even if the ground later relied upon was wholly unknown to him. Shepherd v Felt and Textiles of Australia [1931] HCA 21; (1931) 45 CLR 359. The present case is different from the one that I considered in Wai v Boroondara City Council (2000) 7 VPR 76 where the Council elected to treat a permit application by the applicant for review as in substance an application for a permit different from the one which the applicant sought. I concluded that there is no power in the circumstances to review a determination which Council had not made and that the Tribunal could only deal with the permit application in the form which Council chose to treat it.

36 Here, the proceeding is in the nature of an application for judicial review seeking declaratory relief. There is no requirement for an identity of subject matter between primary decision maker and review Tribunal. Further, in the present case what Havercroft Investments Pty Ltd was seeking was consent to an amendment of the endorsed plans. That was the request which the Council as responsible authority dealt with. There is no objection therefore, to considering whether Council's determination could be supported by a different power from the one which Council itself purported to exercise in making its determination.

37 This was the approach adopted by the learned President in 155 Domain Road Pty Ltd v Melbourne City Council [2005] VCAT 637. There the proponent sought a review under Section 149 of the Planning and Environment Act of Melbourne City Council's refusal to amend plans under Section 62(3) of the Planning and Environment Act 1987. The President concluded that a determination by a responsible authority under Section 62(3) of the Act could not be reviewed by the Tribunal in an application under Section 149. In the circumstances however he was prepared to determine the matter as an application for an informal consent under Condition 2 of the relevant permit which is not materially different from Condition 2 in the present permit. This approach is also consonant with the comments made by Deputy President Horsfall (as he then was) in Thompson v Stonnington City Council (unreported 25 June 2003).

38 The three bases upon which Council's endorsement of the plan amendments relevant to the roof could be justified are:

(b) Section 62(3) of the Planning and Environment Act; or

(c) Sections 72 and 73 of the Planning and Environment Act.

39 I have already quoted the relevant conditions. The provisions of the statute, namely Section 62(3), Sections 72 and 73 are as follows:

62 (3) The responsible authority may approve an amendment to any plans, drawings or other documents approved under a permit if-

(i) the planning scheme currently applying to the land; and

(ii) the permit; and

(b) the amendment will not authorise anything which would result in a breach of a registered restrictive covenant.

72 (1) A person who is entitled to use or develop land in accordance with a permit may apply to the responsible authority for an amendment to the permit.

(a) a permit issued at the direction of the Tribunal; or

(3) In this section a reference to a permit includes any plans, drawings or other documents approved under a permit.

73 (1) Subject to this section, sections 47 to 62 (with any necessary changes) apply to an application to the responsible authority to amend a permit as if -

(a) the application were an application for a permit; and

(b) any reference to a permit were a reference to the amendment to the permit.

(2) If the responsible authority decides to grant an amendment to a permit subject to conditions, the conditions must relate to the amendment to the permit; and

(3) Any conditions to which an amendment to a permit is subject form part of the permit when it is issued.

Note: An application may be made under section 69 to extend the time within which a use or development or any stage of it is to be started or a development or any stage of it is to be completed.

40 There is nothing in the secondary consent provisions in Conditions 2 and 8 of the present permit that would subject them to the same conditions that are laid down in either Section 62(3) of the Act or Sections 72 and 73. This was the approach adopted by the President in 155 Domain Road.

41 The use of informal consent mechanisms under permit conditions has been called into question in some earlier Tribunal determinations but appears to have been accepted as correct in the Mentone Mansions' case and by the President in 155 Domain Road. In Mentone Mansions the Tribunal concluded that an informal consent was permissible:

Provided that the amended development is not a transformation of the development originally approved, and the amendments are inconsequential having regard to the purpose of the planning controls which lead to the need for the primary permission. [20]

This does not mean that any non-transforming change to the endorsed development could be approved by the Responsible Authority pursuant to a condition such as Condition 2. Such a change must also be consistent with the permit: not because this is a requirement of Section 62(3)(a)(ii), but because it would be illogical for a secondary consent to produce an outcome inconsistent with the primary consent (the permit) which created the right to give secondary consent.

43 Accepting that there is an increase in height and bulk entailed in the variations to the endorsed plans under attack in the present proceeding, they clearly fall short of amounting to a transformation. The relevant planning controls were set out in the submission made to me by Mr Cicero. They were also set out in the determination of Mr O'Leary. It was not suggested that there has been any change to those planning controls since Mr O'Leary's determination. Mr O'Leary concluded that a five storey building was appropriate on this site, see paragraphs [40] to [42] of his determination. There is nothing in his determination to suggest that the height attained on the plans which were substituted on the first day of the hearing before him represented some absolute height which should not be exceeded. Mr O'Leary included a number of specific conditions but an absolute limit on height for protrusions above the main parapet was not amongst them. Indeed, the terms of Condition 8 specifically contemplate that the issue of these projections or protrusions may be revisited. I accept the submission made by Mr Bisset that conditions such as Nos. 2 and 8 are intended to cope with the very phenomenon which has occurred here, namely that some variation from the originally approved plans may be necessary when detailed engineering for the construction of the building takes place.

44 In the context of the entire development I believe it is proper to regard the challenged variations as inconsequential according to the formulation of the Tribunal in Mentone Mansions.

45 Finally, in accordance with the President's formulation in 155 Domain Road the variations are in no way offensive to or inconsistent with the primary description of the development approved by the permit. It remains a five storey development.

46 In my view the endorsement of the challenged amendments to plans is justified under the terms of Conditions 2 and 8 of the permit.

47 Nor is there anything in Section 62(3) of the Planning and Environment Act which would prohibit reliance upon this as a ground for the making of the amendments. It has not been suggested that these amendments are in any way inconsistent with the current Planning Scheme. As previously noted they are not inconsistent with the permit. No-one has mentioned any registered restricted covenant.

48 The more difficult question is whether these amendments are justifiable under Section 72 and 73 of the Planning and Environment Act. Mr MacMillan focussed on two paragraphs in Section 73(1) which he said were infringed by these amendments. First, he said that in allowing additional protrusions above the parapet level, the amendments were changing the effect of Condition 8. I reject that submission. In my view these amendments are entirely consistent with Condition 8 and are specifically contemplated by Condition 8. Secondly, he submitted that they would cause an increase in detriment. His arguments on this point are set out in my summary of his case above. In passing, it is interesting to note that whilst these matters seem to have been processed by the Council as applications under Sections 72 and 73, in Grosios v Monash City Council [2003] VCAT 626 Senior Member Byard concluded that where the amendment was sought to plans and not to the text of the permit itself the proper course, at least, for a statutory power as being invoked is to proceed under Section 62(3) and not under Sections 72 and 73.

49 In the Mentone Mansions' case it was suggested that the question as to whether an amendment to a permit entails any detriment must be judged by reference to what an ordinary person could perceive or discriminate. An increase in the height of a wall by 0.1m out of 3m viz. one-thirtieth would not in the Tribunal's view have been capable of being perceived or discriminated. On the other hand an increase in height of 50% would be. What is entailed here lies somewhere in the middle and rather closer to the one-thirtieth than the 50%, nevertheless it is ultimately unnecessary for me to express a view as to whether these amendments create any detriment because for the reasons already given they could and should properly be considered either under the informal consent or secondary consent provisions of Conditions 2 and 8 or Section 62(3). Mr Byard is surely correct in the Grosios' case when he concludes that the plans despite any customary usage in conditions are not actually part of the permit and therefore an amendment to the plans does not entail an amendment to the permit.

50 When judged according to the appropriate criteria it is clear that these challenged amendments were made properly and legally and a reasonable council and its delegate could certainly have properly approved them.

51 This application must be dismissed.

52 I have heard no submission on the question of costs and so I will reserve them.