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.