plaintiff. Application allowed; the permit and specified conditions were amended, revised plans were directed to be endorsed, and the Responsible Authority was directed to issue an amended permit.
Key principles
Under section 87A of the Planning and Environment Act 1987, the Tribunal asked whether it considered the proposed permit amendments appropriate. It treated the inquiry as focused...
The Tribunal assessed the changes against the most recently endorsed plans and amended permit, the circumstances of the site, the Stonnington Planning Scheme, and the likely...
Issues before the court
What test applied to the request to amend a permit issued at the Tribunal's direction?
Whether changes to the attic, roof garden, pool, flue and second-floor hallway were acceptable in their setting.
Whether the Apartment 4 window, roof and boundary-wall changes would create unreasonable overlooking or other amenity effects.
Whether altered courtyard levels and the drainage amendments were acceptable.
Cited legislation
Plain English Summary
The Tribunal approved changes to an already permitted and substantially constructed apartment development. It considered the amendments individually and in their current neighbourhood context, rather than reopening the original permit decision. It rejected the objections to most of the changes, but required two south-facing windows to have restricted openings. It also updated the permit conditions and directed Council to issue an amended permit.
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Deep Dive
2,100 words · generated 01/10/2026
What happened
Maldeve Pty Ltd held a permit for five dwellings with basement parking at 25 Tintern Avenue, Toorak. The original permit was issued on 24 December 2004 at the Tribunal's direction. By the time of this proceeding, construction was substantially complete and the permit and plans had already undergone a series of amendments, endorsements and an extension of time.
1 cited instrument linked from this judgment.
The 2008 request sought changes to multiple aspects of the development: courtyard levels, the second-floor hallway, windows, the southern boundary parapet, the attic roof garden and pool, and the landscape plan. At the hearing on 16 and 17 April 2009, the applicant also sought changes to several permit conditions. Following a site inspection, the Tribunal's interim order of 21 April 2009 required further plan details, including accurate as-built elevations, the location of the rooftop flue, clarification of basement levels and roof finishes, and revised plan references.
The applicant provided revised plans and proposed conditions on 15 May 2009. Council supported the changes. The owners of 23 Tintern Avenue opposed them, raising concerns about building location and height, visual bulk, shadows, privacy, the roof area beside Apartment 4, the flue and the effect of altered courtyard levels on a Dutch Elm tree.
The Tribunal allowed the application. Its order substituted Conditions 1, 4, 5 and 9, directed endorsement of named revised plans and the landscape plan, and directed Council to issue an amended permit under section 91. A key safeguard was a required notation on the plans that the south-facing study and bedroom 2 windows of Apartment 4 be fixed to limit opening to a maximum width of 150 mm.
The supplied judgment does not display a stable, sequential paragraph numbering system. Its paragraph numbering restarts in different sections. For that reason, this analysis identifies the relevant reasons by their headings and does not assign invented paragraph pinpoints.
Why the court decided this way
The Tribunal framed the governing question through section 87A of the Planning and Environment Act 1987: whether it considered it appropriate to amend the permit. It distinguished that inquiry from an application under section 87, which it said involved different tests. Relying on BAMFA Properties v Manningham CC and Bestway Group, the Tribunal described section 87A as allowing flexibility and focussing attention on the changes proposed, rather than reopening the whole development proposal.
That approach shaped the scope of the case. The Tribunal said it was assessing the amendments against the most recently endorsed plans, dated 17 January 2007, and the most recently amended permit, dated 28 October 2005. It did not determine disputes about the process by which earlier approvals had been obtained. On compliance concerns raised by Mr Dumayne, it noted that no question of law had been raised by the specified date and there were no enforcement proceedings before it. It therefore treated the permit as lawful for the purposes of this proceeding and concentrated on the merits of the amendments.
For the roof garden, pool, attic configuration and flue, the Tribunal considered the earlier permit decision, the current context, setbacks, height and visual bulk. It found the attic acceptable, including because its southern setback was at least 7.8 metres, the development's overall height was no greater than originally approved, and the neighbouring site now had a three-storey development under construction rather than the two-storey detached house considered in the earlier decision. The flue projected 0.5 metres above the roof, was more than 10 metres from the boundary and sat higher than the top level of the neighbouring development. The Tribunal concluded that the altered built form would not create unacceptable amenity effects.
It reached a similar conclusion about the hallway extension. The addition was 7.6 metres long and 5.5 metres from the boundary. The Tribunal noted that there were no habitable-room windows opposite that section at 23 Tintern Avenue, views were limited, and any additional shadow would be minimal. It did not consider the change to add building bulk or height in a way inconsistent with the earlier decision.
The Apartment 4 windows required a more specific response. The objector was concerned that lower windows could function as doors opening onto a terrace-like roof area. The Tribunal said such terrace use was not the proposal before it and referred to building regulations preventing access to an unsafe roof area. To confirm the restriction on access through the windows, it required a plan notation limiting their opening to 150 mm. It otherwise accepted the window and roof changes, including the lowered sills, altered framing, tiled roof and 250 mm parapet increase, for the reasons given about privacy, screening, setback, outlook and shadow.
The Tribunal assessed the courtyard changes separately. It found the western courtyard's 400 mm rise would not change its character as usable private open space or create unacceptable overlooking. It accepted the arborist advice that the Dutch Elm would not be adversely affected. The other courtyard was lowered by 735 mm, which the Tribunal considered would not increase overlooking. The drainage conditions were amended to require drainage to the Responsible Authority's requirements.
Before and after state of the law
This decision is not presented as creating a new statutory test. It applies the section 87A language of whether the Tribunal considers amendment appropriate and explains how the Tribunal understood the scope of that task. Its stated approach was to assess the substantive merits of the proposed changes, rather than reopen the entire development.
The judgment relies on the reasoning it attributes to BAMFA Properties and Bestway Group when explaining the difference between section 87 and section 87A and the flexibility of the latter. The Tribunal also quoted Bestway Group's description of an efficient planning system: changes should be assessed on their merits, genuinely affected third persons should have an opportunity to be heard, and changes should be handled through a single permit document where possible. These are propositions quoted or adopted in the judgment, not an account of later legislative developments.
In practical terms, the decision demonstrates how the Tribunal applied that approach to a built and previously amended project. Earlier irregularities or alleged inconsistencies in endorsements did not become the question it was deciding. The Tribunal confined itself to the application before it, while assessing the amendments against the operative endorsed plans and permit. It also treated planning merits as context-sensitive: the neighbouring site's changed built form affected the assessment of visual bulk and amenity.
The decision does not determine the legal consequences of any alleged past non-compliance. The Tribunal expressly treated those matters as outside the proceeding, absent a question of law or enforcement proceeding before it. Nor does it decide the possible effect of replacing Condition 1 on future secondary consents. It noted Council's concern that the new wording could limit that process, but made no finding because other parties had not had an opportunity to respond.
Key passages with plain-English translation
The judgment states that the section 87A test is whether the Tribunal “considers it appropriate to do so”. In plain English, the Tribunal had to decide whether the requested change to the permit should be allowed under that provision, rather than apply the different tests it associated with section 87.
The Tribunal said the planning system should focus “on the proposed changes, rather than re-opening debate about the whole proposal”. In plain English, an amendment application is directed to the changes being requested. The original development is not automatically reconsidered from the beginning.
On the scope of the proceeding, the Tribunal said it was “fundamentally ... considering the merit of the proposed amendments to the permit and endorsed plans”. That explains why it did not resolve the objector's broader allegations about the siting or historical approval of the development. It assessed the changes then before it.
The order's window notation is especially concrete: the south-facing windows to the study and bedroom 2 of Apartment 4 had to be fixed to limit opening to a maximum width of 150 mm. In plain English, the approved plans had to show that those windows could not open more widely. This was the Tribunal's response to the concern that the windows could provide access to the adjacent roof area.
Finally, the Tribunal referred to Zuzek v Boroondara CC and observed the importance of care in preparing plans and articulating later changes. It expressed dissatisfaction with the repeated changes in this particular history. That observation is a caution about plan preparation, while the outcome itself rested on the Tribunal's assessment of the amendments' merits.
What fact patterns trigger this precedent
The decision is most directly relevant to a Victorian planning permit amendment application under section 87A where the permit was issued at the Tribunal's direction. The judgment's account of section 87A is specific to that statutory route and should not be assumed to describe other amendment processes.
It is also relevant where a project has already been built or substantially built and later plans seek changes to design details, building form, conditions or landscaping. The Tribunal assessed each requested change against endorsed plans and the current permit, rather than restarting the original merits assessment.
The case illustrates that a changed neighbourhood setting may matter. Here, the adjoining property had changed from a two-storey detached house to a three-storey development under construction. The Tribunal considered that change when assessing the attic level and its visual effect.
The decision also illustrates the use of a specific permit-plan restriction to resolve a concern about privacy or access. The Tribunal did not accept that a terrace was part of the proposal, but required the 150 mm window-opening notation to address the access concern. The case does not establish that the same restriction will be suitable in other designs or circumstances.
The judgment is less directly applicable where the central issue is enforcement, the validity of an earlier approval, or a legal challenge to the permitting history. The Tribunal did not determine those issues in this proceeding.
How later courts have treated it
The supplied judgment contains no account of any later court or tribunal treatment of Maldeve Pty Ltd v Stonnington CC [2009] VCAT 1707. It is therefore not possible, on this source alone, to say whether later decisions followed, distinguished, applied or questioned it.
The authorities named in the judgment are earlier decisions, not later treatment of this case. The Tribunal refers to Maldeves Pty Ltd v Stonnington CC [2004] VCAT 2594 as the original permit decision and as relevant to the development's height and attic history. It cites BAMFA Properties v Manningham CC [2009] VCAT 663 and discusses Bestway Group Pty Ltd v Monash CC [2008] VCAT 860 when explaining section 87A. It cites Zuzek v Boroondara CC [2007] VCAT 2174 in connection with the care required in preparing plans. Brimbank CC v LS Planning Pty Ltd [2006] VCAT 2218 appears in a footnote as a decision relied on by the applicant's solicitor in support of the presumption of regularity; the reasons do not set out a separate analysis of that case.
Those references show the authorities the Tribunal used or acknowledged in 2009. They do not establish the current state of later authority or the present status of any statutory provisions.
Still-open questions
The judgment expressly leaves some matters unresolved. It makes no finding on whether replacing Condition 1 with a fixed list of amended plans might restrict future secondary consents. The Tribunal recorded Council's concern, but said the other parties had not had an opportunity to respond.
It also does not determine whether the building had been incorrectly sited or exceeded the earlier permit, despite the objector's allegations. The Tribunal confined the hearing to the proposed amendments and noted the absence of enforcement proceedings and a raised question of law. Those allegations should not be treated as findings either way.
The decision does not decide whether the concerns about the historical endorsements could be raised in another kind of proceeding, or what the consequences of any proven non-compliance might be. It also does not provide a general rule for when section 87A amendments are too extensive, beyond its description of the statutory inquiry and its assessment of the specific changes before it.
Finally, the judgment does not establish how later tribunals have applied its reasoning. The supplied text ends with the 21 August 2009 order and contains no subsequent treatment. Any assessment of later authority or the current legislation would require sources beyond this judgment.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Judgment (53 paragraphs)
[1]
The application is allowed. Pursuant to section 87A of the Planning and Environment Act 1987 Planning Permit 311/04 issued by the Responsible Authority in respect of 25 Tintern Avenue Toorak is amended as follows.
(a) Condition 1 including parts a) to l) (inclusive) deleted and substituted with the following:
[2]
"Before the development starts, the following plans must be submitted to and approved by the Responsible Authority:
[3]
A-01 Revision I Basement and Ground Floor Plans printed 30 April 2009.
A-02 Revision F First and Second Floor Plan printed 5 May 2009 revised to include a notation that the south facing windows to the study and bedroom 2 of Apartment 4 shall be fixed to limit opening to a maximum width of 150mm.
A-03 Revision G Attic and Roof Plan printed 30 April 2009.
A-04 Revision H North and South Elevations printed 5 May 2009 revised to include a notation that the south facing windows to the study and bedroom 2 of Apartment 4 shall be fixed to limit opening to a maximum width of 150mm.
A-05 Revision H East and West Elevations & Street printed 30 April 2009.
A-06 Revision G Sections printed 30 April 2009.
A-11 Section through Level 2 Hall printed 28 January 2009.
A-13 Revision A Cross sections printed 5 May 2009
[4]
When approved the plans will be endorsed and will then form part of the permit."
[5]
(b) Condition 4 deleted and substituted with the following:
[6]
"Before the development starts the Landscape Working Drawing prepared by Jack Merlo Design dated 25 July 2008 must be submitted to and approved by the Responsible Authority. When approved the landscape plan will be endorsed and will then form part of the permit. The works shown on the endorsed landscape plan must be carried out and completed within 3 months of the completion of the construction to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority."
[7]
(c) Condition 5 deleted and substituted with the following:
[8]
"A report for the legal point of stormwater discharge must be obtained from the Responsible Authority and a drainage design for the development must be prepared by a suitably qualified engineer in compliance with the Responsible Authority report."
[9]
(d) Condition 9 deleted and substituted with the following:
[10]
"The drainage from the site shall be to the requirements of the Responsible Authority and the discharge of water from the land affected by this permit shall be controlled to prevent any discharge onto any adjacent property or street and the discharge to a point nominated to the satisfaction of the Responsible Authority."
[11]
Plans endorsed under Planning Permit 311/04 are amended and the Responsible Authority is directed to endorse amended plans drawn by Demaine Parnership Pty Ltd comprising:
A-01 Revision I Basement and Ground Floor Plans printed 30 April 2009.
A-02 Revision F First and Second Floor Plan printed 5 May 2009 revised to include a notation that the south facing windows to the study and bedroom 2 of Apartment 4 shall be fixed to limit opening to a maximum width of 150mm.
A-03 Revision G Attic and Roof Plan printed 30 April 2009.
A-04 Revision H North and South Elevations printed 5 May 2009 revised to include a notation that the south facing windows to the study and bedroom 2 of Apartment 4 shall be fixed to limit opening to a maximum width of 150mm.
A-05 Revision H East and West Elevations & Street printed 30 April 2009.
A-06 Revision G Sections printed 30 April 2009.
A-11 Section through Level 2 Hall printed 28 January 2009.
A-13 Revision A Cross sections printed 5 May 2009
[12]
and the amended landscape plan prepared by Jack Merlo Design comprising
[13]
The Responsible Authority is directed to amend the permit and issue an amended permit to the owner of the subject land pursuant to section 91 of the Planning and Environment Act1987.
[14]
Mr Robert Kelderman, Town Planner of Contour Consultants
[15]
Mr Michael Jefferson Architect of Demaine Partnership Pty Ltd
[16]
This case is about proposed amendments to a permit issued for construction of five dwellings with associated basement parking at 25 Tintern Avenue, Toorak. The development has been substantially constructed and the applicant seeks amendments to the endorsed plans and to conditions of the permit. Stonnington City Council (the 'Council') supports the amendments. The owners of the neighbouring property to the south, 23 Tintern Avenue, oppose a number of the proposed changes.
We are satisfied that the proposed changes to plans and to the permit are acceptable subject to modifications to plans to limit the opening of specified windows. We have reached that position having regard to the original Tribunal decision on the development in Maldeves Pty Ltd v Stonnington CC,[1] our inspection of the site and its surrounds, the current context of the development site, the impact on amenity of nearby properties, the provisions and policies of the Stonnington Planning Scheme (the 'Scheme") and previous decisions of the Tribunal on applications for amendment to permits under section 87A of the Planning and Environment Act 1987.
[17]
A permit was issued for five dwellings with associated basement parking on this land on 24 December 2004 at the direction of the Tribunal.[2] Since the grant of the original permit there has been approval granted for a number of amendments to the permit or approved plans and an extension of time to the permit granted. A summary of these follows.
27 April 2005 plans endorsed in accordance with conditions of the permit issued at the direction of the Tribunal in Maldeves Pty Ltd and concurrent amendments to stair design to attic level and altered attic level windows.
14 September 2005 an amendment request lodged with the Tribunal seeking modification of condition 1(a)(i) of the permit. This condition required that modified plans show a specific reduction in the floor to floor height of each level. The amendment sought to change the condition to require that the overall height of the building be lowered by the same total amount but not specify the floor to floor heights. The amendment request included changes to plans.
20 October 2005, by consent of the responsible authority and there being no objection to the application, the Tribunal ordered[3] that condition 1(a)(i) of the permit be modified as requested and that amended plans be endorsed.
19 June 2006 amended plans endorsed by Council. These plans are consistent with the amended permit condition and with the plans submitted to the Tribunal as part of the amendment request referred to above, with some minor alterations to the basement. It is now known that the plans endorsed at this time (and those submitted as part of the amendment request to the Tribunal) showed an increased width and length of the attic level[4] in conflict with Condition 1(a) (ii) of the permit that requires submission of modified plans that show:
[18]
Narrowing the footprint of the "attic level" to a maximum width of 5 metres (without increasing the length of the footprint based on plan TPO6 (RevA) with resultant variation to the roof profile.
[19]
2 January 2007 extension of time to the permit approved by Council.
17 January 2007 Council approves amended plans under secondary consent mechanism with changes predominantly dealing with the lift core.
2 October 2007 landscape plan and tree management plan endorsed by Council.
[20]
The request to amend a planning permit before us was lodged at the Tribunal on 1 September 2008 and included a change in courtyard levels, increased width of the hallway at second floor level, changes to windows, increased parapet height to a wall on the southern boundary, amendment to roof garden and pool at attic level and alterations to the landscape plan.
Formal notification of the request was given and the Dumayne Property Group lodged a statement of grounds opposing the amendments sought.
On 17 November 2008 amended plans in association with the request to amend the planning permit were circulated to all parties.
A Directions Hearing on the on 12 December 2008 directed that the matter be set down for a 2 day hearing in April 2009, set a date of 23 February 2009 for any party to raise questions of law and specified that any further amended plans must be circulated by 30 January 2009. Amended plans were circulated to all parties on 30 January 2009.
At the hearing of this matter on 16 and 17 April 2009 further amendments were sought that included alterations to conditions 1(a)(i), 5 and 9 of the permit. We granted leave for these amendments to be sought.
Following the hearing of this matter, we inspected the review site and issued an interim order that specified that a set of plans be provided to all parties and the Tribunal generally in accordance with the plans substituted at the hearing held 16 and 17 April 2009 but modified to show the following:
Accurate 'as built' south and north elevations showing the roof line, any visible sections of the lift overrun and dumb waiter 'cover' together with location of these elements marked on roof plan, floor plans and sections as appropriate.
Location of rooftop flue on elevations, sections and floor plans as appropriate.
Basement floor levels to match basement floor levels of the plans currently endorsed as part of the permit.
Floor to ceiling windows shown on sections as appropriate.
Finish of roof below bedroom 2 on the south side of Apartment 4 and below the master bedroom on the west side of Apartment 4 on floor plans, sections and floor plans as appropriate.
Alteration to the south elevation to clearly indicate the relative levels of the proposed addition to the wall on the southern boundary and deletion of wall height dimension.
This proceeding differs from one made under Section 87 where there are a number of tests with respect to an application to cancel or amend a planning permit. Section 87A was introduced in September 2007 to give flexibility to amend permits at a permit holder's request without the need to be tested against the same hurdles or tests in Section 87. The potential latitude in such requests is broad as discussed by Deputy President Gibson in Bestway Group.[6] The test for a request to cancel or amend a permit issued at the Tribunal's direction is, in the words of the Act, if the Tribunal "considers it appropriate to do so" [s. 87A (1)].
[23]
In considering whether it is appropriate to allow the amendments sought it is relevant to acknowledge that the need to amend a development after the issue of a planning permit is a common and understandable situation given the design and construction process involved from initiation of a project to completion. We agree with Deputy President Gibson in Bestway Group that
[24]
The planning system needs to be able to cope efficiently with such changes or other subsequent changes to the use or development of a site for whatever reason. It is important that changes are handled in a way that addresses their substantive merits; ensures that when eligible third persons may be genuinely affected, they are notified and given an opportunity to be heard; and that applications are processed and decisions are made about changes efficiently and in a timely way. The reforms to the Planning and Environment Act1987 by the introduction of Division 1A and section 87A enables these objectives to be achieved by focussing on the proposed changes, rather than re-opening debate about the whole proposal. Importantly, what happens on a site, can be managed through a single permit document, which is a more transparent process and less likely to result in inconsistencies than having multiple permits for the same site accumulate over time.
[25]
Mr Dumayne raised a number of concerns in relation to compliance with the existing permit and endorsed plans.
A number of the matters raised by Mr Dunayne are not before us in the proceeding. The Directions Hearing held on the on 12 December 2008, amongst other things, set a date of 23 February 2009 for any party to raise questions of law. No question of law has been raised and there are no enforcement proceedings in relation to this development. In these circumstances we agree with Mr Scally's submission that the permit is lawful and the applicant is entitled to rely upon the presumption of regularity in respect of it.[7]
Whilst cognisant of some previous inconsistencies in approving amended plans that are contrary to permit conditions, fundamentally we are considering the merit of the proposed amendments to the permit and endorsed plans.
We acknowledge the frustrations for the neighbouring property owners, Council and in this case the Tribunal in dealing with the many changes to the plans that have included four sets just for this application for review. We consider that it is unfortunate that the applicant has not acted in accordance with the findings in Zuzek v Boroondara CC[8]
[26]
Given the importance that attaches to permit plans and the difficulties in amending those plans, it is critical that permit applicants take care in the initial preparation of plans and equal care in the articulation of any subsequent changes to those plans.
[27]
Addressing the set of amended plans received by the Tribunal on 15 May 2009 we set out the specific changes sought, the submissions made by parties and then outline our findings in relation to each.
Our assessment of the amendments sought is on the basis of variations from the most recently endorsed plans (17 January 2007) which we refer to as the 'approved plans' and the most recently amended permit (dated 28 October 2005). Issues raised about the process by which previous approvals have been gained are not before us.
[28]
The configuration of the roof garden and pool has been altered and extended and includes a larger pool, altered step positions and planter box locations, a dumb waiter, lift overrun and car park exhaust flue. To the south elevation the roof line at the top level is extended in length by 2.5 metres.
Mr Dumayne opposes these changes stating that the extended roof line is clearly visible from the roof garden at 23 Tintern Avenue with the flue directed towards that terrace. It is his view that this is an ugly and unacceptable outcome that will result in car fumes being directed towards 23 Tintern Avenue and compromise the attractiveness and value of that property. In his submission at the hearing, Mr Dumayne pointed out that an increase to the roof terrace and attic directly contravenes condition 1(a) (ii) of the planning permit that required narrowing of the footprint of the attic level and to allow such a change would undermine the intent in the Maldeves Pty Ltd decision that sought this alteration to reduce the massing of the roof.
Condition 1(a) (ii) of the permit requires that amended plans be submitted showing:
[29]
Narrowing the footprint of the "attic level" to a maximum width of 5 metres (without increasing the length of the footprint based on plan TPO6 (RevA) with resultant variation to the roof profile.
[30]
It is clear from the history of this development that previously endorsed plans showed an increased width and length of the attic level in conflict with this condition and this has been carried forward to the most recently endorsed plans.
In making our assessment of the now 'as built' attic level we have had regard to the previous decision of the Tribunal, the changed circumstances of the site to the south compared to those considered at the time of the previous Tribunal decision, the Stonnington Planning Scheme and the impact of the altered built form at this level. We find the attic level as built acceptable for the following reasons:
The setback of this level to the south boundary is a minimum of 7.8 metres. This setback meets the side setback standard of Clause 55 of the Scheme and is not altered from the originally approved side setback. We recognise that compliance with Clause 55 of the Scheme is not mandatory for a four storey building, but we consider that meeting the applicable standard is an acceptable outcome in terms of amenity and visual bulk impacts in a residential setting.
The maximum overall height of the development is not greater than originally approved and, in our view, accords with the policy intent referred to in Maldeves Pty Ltd of "not being significantly higher" than surrounding buildings.[9]
The neighbourhood character of the immediate area has changed since the Maldeves Pty Ltd decision was made. The three storey development, containing two apartments, currently under construction at 23 Tintern Avenue creates a significantly different context compared to that created by the two storey detached house that previously existed on the site.
We find the visual bulk and mass of the additional built form at attic level, including the flue, acceptable and we do not consider it creates unacceptable amenity impacts to any adjoining property. The flue projects 0.5 metres above the roof line, is over 10 metres from the boundary with 23 Tintern Avenue and is higher than the top level of the development on that site. These factors combine, in our opinion, to ensure that the flue will not unreasonably impact on the amenity of 23 Tintern Avenue.
[31]
Increased width of hallway on second floor facing south
[32]
This amendment involves widening the hall of apartment 5 located on the second floor by 600mm for a length of 7.6 metres on the south elevation.
Mr Dumayne submitted that this amendment accentuates unwanted visual bulk and massing on the northern boundary of 23 Tintern Avenue compromising the entry to that building and the integrity of the north facing windows and upper level private open spaces. In particular the change, in his view, would be contrary to the intent of the original VCAT order that sought to reduce the massing of the roofline and avoid the building being significantly higher than surrounding buildings.
Council advised that it considered this change created no amenity impacts to 23 Tintern Avenue given the absence of habitable room windows facing this part of the development, the setback to the boundary and the fact that much of the additional wall occurs behind a pitched roof.
We find this alteration acceptable for the following reasons:
The additional section of wall is relatively confined in extent at 7.6 metres length and is setback 5.5 metres from the boundary with 23 Tintern Avenue. This setback exceeds the setback required to meet the side setback standard of Clause 55.04-1 of the Scheme recognising, as referred to earlier, that compliance with Clause 55 is not mandatory.
The views to the additional section of wall from 23 Tintern Avenue are limited. Opposite the additional section of hall, the development at 23 Tintern Avenue contains no habitable room windows. Furthermore, the upper terrace at 23 Tintern Avenue is not opposite the additional section of hall and in any event will have limited views to the north due to a requirement for 1.7 metre high opaque glass screening to the north side of the terrace.
Any increased shadow to 23 Tintern Avenue as a result of this change will be minimal.
The additional floor space provided by the change does not significantly alter the appearance of the roof line at this level and does not, in our view, add to building bulk or height in a manner that is contrary to the findings in Maldeves Pty Ltd.
[33]
The approved plans show south facing windows to the study, bedroom 2 and master bedroom of Apartment 4 at first floor level. A planter box and 1.7 metre high screen is shown to the south of the study window. The roof of the first floor below to the south of the study and ensuite of this apartment is shown with hatching that indicated a metal roof and there is a parapet wall to the boundary.
The amended plans show the following changes:
Lowered sill heights to the windows to the study and bedroom 2
Altered framing to south facing master bedroom, study, bedroom 2 and ensuite windows.
Tiles to roof area.
Increased parapet wall to south boundary by 250mm.
Mr Dumayne opposed these changes on the following grounds:
The windows are not being lowered but rather replaced by full length glass doors that open to a concrete roof that is a continuation of the first floor slab. The changes clearly amount to construction of a terrace that is highly intrusive to the amenity of 23 Tintern Avenue.
The wall on the southern boundary has been raised to a height above ground level on the boundary seemingly to provide a balustrade for the terrace and this fails to meet appropriate standards.
The roof outside these windows is a continuation of the first floor slab rather that a steel and box gutter construction as indicated on the original plans.
The window to the study cannot be lowered without eliminating the planter box in front of it and this would result in loss of privacy.
Loss of screening to ensuite and master bedroom windows will result in loss of privacy.
Mr Clarke advised that Council is satisfied that the lowering of window sills, alteration to window framing and increased parapet height is acceptable and will not create unreasonable amenity impacts. Mr Clarke indicated that while the original plans endorsed pursuant to the permit included screening to 1.7 metres above floor level to the south facing master bedroom, subsequent amendments have not included that screening including the most recently endorsed plans of 17 January 2007.
Mr Scally relied on the evidence of Mr Kelderman that the alterations to windows, roofing and walls as described above will not result in unreasonable building bulk, overlooking or overshadowing of 23 Tintern Avenue.
[34]
The amended plans show altered levels for two courtyard areas adjacent to the southern boundary of the review site. The western most courtyard located in the south west corner is to be at 17.155RL compared to the previous 16.75RL. The courtyard located to the west of the entry to the apartments is to be at 17.155RL compared to the previous 17.89RL.
Mr Dumayne submitted that changes to the courtyard levels are inappropriate since there would be negative impact on a large Dutch Elm tree in the north west corner of 23 Tintern Avenue. Furthermore the change in levels, in Mr Dumayne's submission, would result in a change to the nature of these spaces from primarily a source of light and outlook to a more useable open space that will be intrusive to 23 Tintern Avenue. Also of concern is the issue of drainage of the altered courtyards together with the potential for overlooking, possible raised fence height and implications on light to 23 Tintern Avenue.
Council had initial concerns about the proposed level alterations impacting vegetation located on 23 Tintern Avenue. Mr Clarke advised however that arborist advice[10] submitted by the applicant confirmed, to Council's satisfaction, that the tree on 23 Tintern Avenue will not be detrimentally affected by the altered levels.
We are satisfied that the changed courtyard levels are acceptable for the following reasons.
Turning first to the western most courtyard adjacent to the south western corner of the review site we find as follows. The 400mm difference in level will not, in our view, change the nature of that space. This courtyard has a minimum dimension of 6.1 metres, an area of over 35 square metres and access from two bedrooms and was always a useable secluded private open space for apartment 2. That will not alter with a changed level. We consider the rise of 400mm would not result in overlooking noting that the endorsed landscape plan for 23 Tintern Avenue shows the ground level terrace at the rear of Apartment 1 to be 17.4RL. We consider the difference in levels between the adjacent outdoor areas will not be so great as to require any screening beyond what would be provided by a standard 1.8 metre high fence. Finally we are satisfied, having regard to the arborist advice provided, that the Dutch Elm tree on 23 Tintern Avenue will not be adversely affected by the changed levels to this courtyard
[35]
Deletion of windows, additional skylights and removal of window detail
[36]
The plans show deletion of several south facing windows of Apartment 5 (at second floor) and two west facing floor windows of Apartment 2 (at ground floor). New skylights are proposed to the roof over the hall in Apartment 5 (at second floor) and alterations to window framing layout are proposed.
We find these changes will not impact on the amenity of the neighbouring properties. There is no increase opportunity for overlooking. We consider the neither the internal amenity of the dwellings or the external appearance of the development are detrimentally affected by the proposed amendments.
[37]
Condition 1 of the permit requires amended plans to be submitted showing specified changes. The matters required by parts 1b) to l) inclusive have been addressed by endorsed plans, are not altered by the current plans and we are of the view that these conditions are now superfluous.
Condition 1a) requires that modified plans be submitted showing
A reduction in the overall height of the building by:
600mm to 32.662AHD to 32.092 AHH [sic]
Narrowing the footprint of the "attic level" to a maximum width of 5 metres (without increasing the length of the footprint based on plan TPO6 (RevA) with resultant variation to the roof profile.
Mr Dumayne raised a number of concerns in relation to previous decisions to amend the endorsed plans and the permit particularly in relation to Condition 1a). As referred to earlier this condition was amended at the direction of the Tribunal and the merit of this change is not before us. We are satisfied that the currently endorsed plans meet this condition and the amended plans we are considering continue this compliance thus resulting in the condition becoming unnecessary.
We have addressed the history in relation to Condition 1a)ii above. Ultimately we have found the upper attic level as shown on the amended plans is acceptable for reasons we have provided. We therefore consider this condition can be deleted.
We agree with Mr Scally's suggestion that the existing Condition 1 be replaced with reference to the amended plans. We note Council's comments about the resultant restriction such a wording may place on secondary consents should further amendments be sought. Other parties did not have the opportunity to respond to this issue. We make no finding on this matter and retain condition 2 on the permit, noting that the development is substantially completed.
[38]
We are satisfied that the basement levels shown on the floor plan have been corrected to match section and elevation drawings and that amended plans are not seeking to change those levels.[11]
[39]
A modified landscape plan is proposed that reflects site layout changes and includes an amended layout, species selection and planting sizes and quantities. Council supports the revised scheme and we agree with Mr Clarke's submission that the proposed vegetation levels are respectful of the garden setting of the neighbourhood and that the extent of perimeter planting is similar to the currently endorsed plan. Modification to Condition 4 of the permit to refer to the modified plan is appropriate.
[40]
Conditions 5 and 9 of the permit relate to drainage. Proposed amendments to the wording of these conditions are supported by Council and we find them acceptable.
[41]
Mr Dumayne, in response to the final set of amended plans, submitted that these plans are not 'generally in accordance' with the plans considered at the hearing. It was his submission that the plans show that an increased building length by 1 metre at all levels, an increased the height and length of the level 2 roofline and a lengthened southern boundary by 1 metre. It is his view that the building has been incorrectly sited on the lot and in combination, the matters of concern significantly affects the amenity of private open space to the rear of the apartments under construction at 23 Tintern Avenue.
In our view, the plans submitted appropriately respond to our order dated 21 April 2009 and we have provided our reasons for finding the amendments proposed acceptable.
[42]
For the above reasons we have found the amendments sought to the permit and endorsed plans for this four storey development are acceptable and should be supported.
[10] Letter dated 12 December 2008 from Rob Galbraith Arborist regarding alterations to the proposed courtyards at 25 Tintern Avenue.
[53]
[11] We note a 10mm difference in level at two points in the basement that we consider inconsequential.
Parties
Applicant/Plaintiff:
Maldeve Pty Ltd
Respondent/Defendant:
Stonnington CC & Anor [2009] VCAT 1707
Legislation Cited (1)
Environment Act 1987
Cases Cited (1)
Maldeve Pty Ltd v Stonnington CC & Anor [2009] VCAT 1707 (21 August 2009)
AI Analysis
Outcomeplaintiff
Disposition:
Application allowed; the permit and specified conditions were amended, revised plans were directed to be endorsed, and the Responsible Authority was directed to issue an amended permit.
All plans designated with a new revision number and date.
The order also allowed the opportunity for the applicant for review to suggest an amended wording for Conditions 1, 5 and 9 of the permit issued for the development (No 0311/04). An opportunity for other parties to make a submission in response to the modified plans and suggested permit conditions was provided.
An amended request and modified plans was submitted by the applicant on 15 May 2009 together with suggested wording of Conditions 1, 4, 5 and 9 of the permit.
A response from Council to the amended request indicated support of the changes included in the revised plans on the merits and the suggested wording of conditions although noting that the wording of Condition 1 would limit the secondary consent process.
A response was also received from Mr Justin Dumayne on behalf of Dumayne Property Group requesting that the Tribunal refuse the proposed amendments based on the following matters:
The plans provided by the applicant on 15 May 2009 are not in general accordance with those submitted at the hearing and are significantly modified beyond the scope outlined in the Order.
The building has been incorrectly sited on the lot and exceeds its current permit by 1 metre to the west and by increased height. This significantly impacts on visual bulk, overshadowing and overlooking to 23 Tintern Avenue.
The addition of the carpark exhaust flue and the extension of the upper roof line 2.5 metres further west is an ugly and unacceptable outcome that compromises the attractiveness of the development at 23 Tintern Avenue.
Objection to the introduction of floor to ceiling windows tiled roof and increased wall height adjacent to Apartment 4 is maintained and it is submitted that this amendment amounts to construction of a terrace.
As referred to above, we are assessing the amendments against the most recently endorsed plans and in regard to the changes proposed we find as follows:
Although we acknowledge Mr Dumayne's concern about potential terrace use of the roof area adjacent to the south facing windows of Bedroom 2 and the study of Apartment 4 such a proposal is not before us. We agree with Mr Kelderman that building regulations will ensure there is no direct access to what is an unsafe roof area from these windows. To confirm that restriction on access from the windows we will require that the plans include a notation that the windows have a mechanism that restricts window openings to no more than 150mm.
The lowering of the window sills to bedroom 2 will not, in our view, reduce privacy to the adjoining site. This window has not previously been shown as screened and a lowered sill height will allow increased light to the room without significantly altering opportunity for overlooking.
The lowering of the sill height to the study makes no difference to overlooking opportunities. This window was originally shown as screened with a planter box and this has not changed. We are satisfied on Mr Jefferson's evidence that the planter box is slightly set back from the window to allow for drainage
We find the change in roof material to tiles acceptable given that this matches other roofing on the development and in any event will be largely concealed by the parapet wall.
The increased height to the parapet wall on the south boundary we consider acceptable. There will be two ground floor living room windows of apartment 1 at 23 Tintern Avenue setback 1 metre from this wall. The currently endorsed plans show a wall of over 3.5 metres (varying in height due to slope) opposite these windows and we consider the additional height of 250mm will not significantly change the outlook from these ground floor windows. The landscape plan for 23 Tintern Avenue shows the placement of pavers in the 1 metre setback opposite each of these windows for the placement of pots. We note that this living room on 23 Tintern Avenue has access to large west facing windows for light and outlook. We agree with Mr Kelderman that the increased shadow cast by the additional wall height will be minor and acceptable.
The absence of screening to the south facing master bedroom of apartment 4 we find acceptable given that this is not changed from the most recently endorsed plans. In any event, we consider the overlooking impacts arising from this window are not unreasonable given the setback of this window in excess of 6 metres from the southern boundary and the limited extent of overlooking that arises from a bedroom window compared to a living room.
We find no change to the ensuite window to the master bedroom of Apartment 4 facing south other than framing design. The most recently endorsed plans do not show this window as screened or of obscure glass and nor do the amended plans we are considering. We note that the location of this window changed in response to design changes sought in the original permit and that the original endorsed plans (27 April 2005) show it as a circular window.
The altered framing of the windows is a minor matter that in our view is acceptable.
As the alteration to the level of the courtyard located to the west of the entry to the apartments will result in a lowering by 735mm, we are satisfied that the change will not increase opportunity for overlooking to the adjoining 23 Tintern Avenue. We see no alteration to the nature of this courtyard as a result of the level change.
We are satisfied that altered wording to Conditions 5 and 9 of the permit as discussed below that require drainage from the site to be to the satisfaction of the Responsible Authority, will ensure adequate drainage of the changed courtyard levels.