(c) New conditions 1(c) and 1(d) are included as follows with subsequent conditions renumbered accordingly:

1(c) Amendment of basement finished floor level to 12.742m RL, ground floor to 15.269m RL and first floor to 18.119m RL shown as amendments #13, 14 and 17 of Plans prepared by Michael Palmieri Architect dated 5 July 2011, VCAT Issue 7;

1(d) Consequential changes to ground floor internal layout to suite the basement configuration shown as amendment #15 of Plans prepared by Michael Palmieri Architect dated 5 July 2011, VCAT Issue 7.

(d) Condition 8 is deleted with subsequent conditions renumbered accordingly.

1. 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 Act 1987.

Ms Vicky Grillakis, a town planner from Yarra City Council.

Amendments are sort to the approved development of two double storey dwellings with basement car parking. The substantive changes requested are:

• Addition of internal lifts to each dwelling with consequential changes to internal layout;
• Lowering of the basement floor level and increases in floor levels above to accommodate changes in ramp access;
• Consequential changes to building setbacks;
• Addition of a rooftop deck on the western dwelling to match one on the eastern dwelling; and
• Minor additions or changes to detailing and services.

Amendment of a permit issued at the direction of the Tribunal made under Section 87A Planning and Environment Act 1987.

Zone and Overlays applying under the Yarra Planning Scheme

Planning permissions required under the Yarra Planning Scheme

Construction of two or more dwellings on a lot (Clause 32.01-4).

An unaccompanied inspection of Ms O'Neill's and Mr Derham's property was undertaken along with the site and surrounds after the hearing.

SMP Architects v Yarra CC [2010] VCAT 655; The King David School v Stonnington CC & Ors [2011] VCAT 520; Marone Pty Ltd Joint Venture v Glen Eira CC [2011] VCAT 1650.

1. This proceeding is about an application under section 87A of the Planning and Environment Act 1987 (the Act). Section 87A sits within Division 3 of Part 4 of the Act, a division pertaining to cancellation or amendment of permits issued at the direction of the Victorian Civil and Administrative Tribunal (VCAT). This section confers the Tribunal with the power to amend a permit issued at the direction of the Tribunal if it is considered 'appropriate to do so'.[1] The Tribunal can only exercise this power 'at the request of the owner or occupier of the land concerned' or 'any person who is entitled to use or development the land concerned'.[2]
2. A & R Zumpano have purchased subject site, which has the benefit of planning permit PL08/0673 which allows development of the subject land with two double storey dwellings, one with a roof top deck, and basement car parking This permit was issued at the direction of this division of the Tribunal in 2010[3] (hereafter referred to as the SMP Architects matter).
3. The new owners seek to make amendments to the approved development. The amendments can be summarised as follows:
   • The inclusion of a lift in each dwelling with consequential changes to setbacks from boundaries to accommodate these lifts and internal re-arrangement of rooms;
   • The addition of a roof top terrace to the westernmost dwelling (Unit 1) to match that on the eastern dwelling,
   • Extending the length of the eastern dwelling's roof terrace by 0.91m eastward;
   • Lowering the basement floor level by 0.127m and raising the floor levels above by 0.2m to accommodate a change to the basement ramp to bring it into compliance with Australian Standard grades; and
   • Minor changes to other detailing such as screening to rooftop air-conditioners, relocation of front entry stairs and provision of chimney enclosures on the roof.
4. The Yarra City Council does not oppose these amendments. Its position is that in the context of this site and the reasoning of the previous Tribunal decision, the amendments are inconsequential to character outcomes and will not have an adverse amenity impact to neighbours.
5. Neighbours to the north and to the west disagree with the Council's position. They argue that the addition of the roof top terrace to Unit 1will result in detrimental impacts to their amenity. They also highlight that this amendment is counter to an agreement reached with the applicant in SMP Architects. That agreement, to delete the roof top terrace from this dwelling and other amendments to the design gave rise to their withdrawal of objections in that proceeding. To retreat from that agreement now is said to be not only a breach of good faith but undermines the outcomes of an orderly planning process.

1. There are two aspects to this application. One is the design or planning merit of the proposed amendments. The second is the matter raised by Ms Sharp about the purposes of section 87A applications and the agreement reached with her clients in the SMP Architects application.

The tests of section 87A applications

1. Other divisions of this Tribunal have discussed in some detail the question of how far a Tribunal should go in exercising the broad discretionary powers afforded it in a section 87A application. Ms Sharp referred to two cases: the King David School application;[4] and the Marone application.[5] It is not my intention to repeat what the different divisions of the Tribunal said in their respective decisions. I have however had regard to these decisions and the principles set out in them that are relevant to this application.
2. A summary of these principles are that:
   1. It is important to distinguish between amendments to a permit that seek to clarify the permit's ambit or intent and amendments that seek more substantive changes;
   2. Consideration should be given to the context surrounding the application. Has there been unforseen changes in circumstances either before commencing or while the project is proceeding? What time has elapsed since the permit was issued and the amendment application made?
   3. If there are substantive changes being sought:

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

1. Are they acceptable having regard to any exceptional circumstances that are different to those under which the original Tribunal decision was made? This may include physical conditions, planning policy or planning controls. 4. Would a decision to grant the amendments undermine community confidence in the planning system and impose unfair costs burden on affected parties through repeated appeals by applicants, rather than achieving a final planning outcome?
2. These are principles that I concur with and adopt in this instance.
3. I note here that in the King David matter that Tribunal considered that exceptional circumstances might include market conditions as a reason for seeking amendments. I am would treat such circumstances with extreme caution. In my view, in anything other than the most extra-ordinary circumstances, a change in market conditions would normally fall outside the contemplation of planning considerations. I would take the previous Tribunal's adoption of such a circumstance to not to be taken as an opportunity for permit holders to amend plans or use just because it is felt that what has been approved may not sell in the current market or that the amendments may see a better return achieved. Rather it should be taken to mean that unusual or unanticipated conditions of a most extra-ordinary nature have arisen that requires substantive changes.
4. While one can recognise the intertwining nature of planning, development and economic benefit, as expressed within section 4 of the Planning and Environment Act, for many commercially driven applications there will always be an element of a calculated 'market risk' as part and parcel of the process. If the calculation of such risk is found wanting once a permit is gained, then the proper and orderly planning process required under the Planning and Environment Act would seem to require an examination of a substantively revised proposal through the process of a new permit application.
5. In this particular case, I see no special or extra-ordinary market conditions that would support the need for the amendments. Having regard then to the principles I have set out above, it is appropriate to first turn to the test of this application against these matters.

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

1. It is clear from the nature of the amendments being sought that this is an application that does not seek to clarify permit conditions or the like. The application seeks three substantive changes to the design:
   • The inclusion of a lift for access to all levels and the roof deck of each dwelling;
   • Changes to the access ramp to the basement to bring it into line with Australian Standard; and
   • The addition of a roof-top deck on Unit 1 to match that approved on Unit 2.
2. The first of these amendments includes consequential changes to floor levels and boundary setbacks that are said to be necessary to maintain internal amenity. The ramp grade changes requires changes to floor levels, with a resultant increase in building height of 0.2m.
3. Other amendments are also included that are inconsequential design changes. These include deletion of wing walls to the front stair access, roof top chimney enclosures and the location of roof top air-conditioner screens.
4. The roof deck is said to be required to improve the amenity of Unit 1. The request to include a deck on Unit 1 is counter to the agreement reached between the permit applicant (and pervious owner) and the respondents.
5. Ms Sharp agitates that this agreement to delete the roof deck from Unit 1 was reached in good faith between the neighbours and the permit applicant. Whether agreed to via a formal mediation process or by private negotiation she contends that the agreement forms part of the planning process and in line with the views of the Tribunal in King David and Marone, should be given significant weight.
6. Mr Peake argues that the agreement was reached outside of VCAT processes and is distinguishable from the situation in Marone or the relevant principles in King David. In essence he argues that the merit of Unit 1's roof deck is de novo, as it was not dealt with by the Tribunal previously. Similarly he submits that the other amendments were not design outcomes sought previously and are also a matter of merit.
7. I do not accept that these amendments are a mere matter of merit.
8. This amendment request has been made only some seven months after the permit was issued at the direction of the Tribunal. The applicant for the amendment is the same architect in the previous hearing, and so the permit holder is a different person, those taking instructions are fully aware of the circumstances in which the permit was issued. It is also evident that the site was sold with plans and permits setting out what was approved, with the benefit of written reasons from the Tribunal.
9. I do not accept then that the concessions made in the permit process, including the private agreement, could not have been known to the new owners. I therefore agree with Ms Sharp that this application is in part an attempt to win back the concession made over the roof top deck to Unit 1.
10. The agreement reached with the neighbours also includes other design and detailing changes to provide and agreeable outcome in terms of the building's massing and presentation within the streetscape. While this application does not seek to amend some of that detailing, for reasons I will set out later, I find that the changes to the setbacks result in outcomes that do affect the presentation of building mass within the streetscape. Such outcomes are potentially counter to this agreement, but equally are counter to the findings of the Tribunal in SMP Architects.
11. Aside from the agreement, the question also arises as to whether these amendments seek to re-agitate previous considerations of the Tribunal. I am told that the lifts are sought by the new owner to improve accessibility within the dwelling, particularly for disabled people while the consequential increases to building floor areas to accommodate these lifts are intended to maintain the level of internal amenity. The basement access amendment is required to achieve Australian standard ramp grades which in turn requires changes to floor levels to accommodate the redesigned ramp.
12. Having regard to the circumstances in which the original permit was granted it is apparent from the earlier reasons of the Tribunal that:
    • A permit was issued after a consideration of a range of planning merits. One outcome of that consideration was that basement access was to be amended to meet the required standard. The amendment would see compliance with that condition.
    • Internal amenity and internal dwelling access were not contested. Impliedly therefore on can take the view that these were considered by the Responsible Authority and the Tribunal to have been acceptable.
    • There have been no changes in planning circumstances or context to the site.
    • There has been no change to the site's physical context.[6]
13. Apart from the basement access amendments, the planning and site circumstances of this request do not lend weight to approving the other substantive changes to the design. The planning context remains unchanged. While I might accept that the changes may arguably improve internal accessibility (while maintaining internal room dimensions and hence amenity) there is no planning compulsion to undertake these changes. It is therefore not a reason alone to approve of the changes. As approved the development has been found to be acceptable in planning terms.
14. The nature of these amendments therefore gain little support from a consideration against the principles I set out earlier. In fact, many of the elements, such as the roof top terrace, run counter to the outcomes that were achieved under the previous review process. I am persuaded therefore that on these grounds, the substantive amendments involving the lift access, consequential changes to setbacks and the rooftop terrace to Unit 1 are not appropriate.

1. Arguably, the proposal to include lift access could, of itself, be uncontroversial. It is the 'consequential changes' that are being sought and the inclusion of the second roof top terrace that give rise to concerns about this amendment request.

1. One of these 'consequential changes' is a decrease in the area of the landscaped corner to Davidson and Highett Streets. This area of landscaping, like its bookend to the eastern end of the building, will serve to soften the presentation of the building to the streetscape. On this corner, the landscaped area reflects the local character of corner dwellings in presenting some form of soft landscaping. The incremental loss of this landscaping area combined with the incremental increase in the length of the ground floor walls lengths (totalling some 1.54m) chips away at what was found to be an acceptable presentation of building mass at the ground level.
2. Another consequential changes along the Highett Street façade will be an increase by 0.5m to first floor, blank en-suite walls and an increase of 0.8m to the length of each unit's upper front facing balconies. The affect of each of these increases in to increase the overall length of the first floor building by 2.6m.
3. Not withstanding what was said in the reasons of the earlier SMP Architects decision about the character of this portion of Highett Street it does not automatically follow that the proportions of building mass found to be acceptable previously can be incrementally extended without tipping the balance the other way and becoming too much. Due regard must be had again to the overall site context.
4. There is presentation of large building mass at the street level within the immediate context of the Highett Street façade. However the level of massing at first floor and second floors levels is generally observed to be finer grained and setback. The result is reduced visual impact from the upper mass. Too great a massing of upper levels would give rise to a building that will sit proud rather than blend within the streetscape.
5. I find that the level of change is sufficient to give cause to be concerned about the response of this building's proportions within this streetscape. The incremental increases in the length of walls at ground level (as discussed) and proportionate increases in length at first floor level and additional of visual massing above work together to give the building a large sense of mass along this street.
6. It is my concern that the combination of these changes along Highett Street incrementally increases the overall building mass to a point where it no longer achieves acceptable neighbourhood character outcomes.

1. Similarly, I have concerns about what are said to be incremental changes to the northern boundary setbacks.
2. The approved setbacks to the northern boundary were previously found to be 'well setback' in comparison to the standards set out under Clause 55.04-1. This was true for eh main part of the upper wall, while the pantry wall slightly encroached into the setback standard envelope. This was deemed acceptable in the context of the surrounding robust built form, which included he current high wall along the boundary.[7]
3. The proposed amendments to the setbacks would see all of the upper northern walls encroach into the envelopes of standard B17, varying from 0.3m to 0.5m for the upper wall heights.
4. It is argued that this encroachment is acceptable having regards to the decision guidelines of Clause 55.04-1, the objective and the orientation of the adjoining rear open spaces and the site context referred to in the earlier Tribunal decision.
5. I do not accept these arguments.
6. The adjoining rear open space of No 150 Somerset Street immediately adjacent the proposed walls is the main outdoor recreational space. It is true that this space is the subject of a robust interface with a 3m plus height wall to the existing dwelling. What is sought however is to introduce upper level walls one that is a height of 7.2m above ground level with setbacks of 1.6m to 2m. This does not include the screen to the extended first floor balcony which will be 1.2m from the common boundary.
7. In combination with the balcony screen, the decrease in setback is too much. The proposed setbacks will not limit the presentation of building mass to the adjoining property to an acceptable extent. While seemingly incremental in amount the changes tip the balance away from the design being acceptable.

1. Turning to the roof deck, it is apparent from the site analysis that the decreased setback of the first floor walls are likely to screen most if not all of the privacy screen to the proposed deck. Therefore as a perceptible infringement into the amenity, the impact would be limited. However the screening is achieved by the less than satisfactory setback of the lower walls, which I find to be unacceptable. The screening of the roof deck will not work without the decrease in wall setbacks.
2. Further while the views from the immediate northern interface would be screened, the same cannot be said of views of the upper deck from the west or south. Street views would clearly be available of the upper level deck screens as well as the lift access. The protrusion of the lifts and the screens will add a strong sense of built form above the first floor, giving rise to a perception of second storey massing.
3. With the roof deck removed from the approved plans, the building presented a stepped two storey form from the corner up to a three storey form adjacent the adjoining, and now completed, three storey dwelling to the east. The transition is height is an important outcome in the streetscape and should be retained. It would be lost if the amendments were granted.
4. For similar reasons the limited extent of the approved roof top deck needs to be retained so as to limit the views gained of this upper level of development.

1. The amended plans include changes to the ramp access into the basement garage in order that the grades meet Australian Standards. These amendments were required under permit conditions 1(a) and 8. A reduction in the length of wing walls to the front steps are also proposed to provide visibility splays.
2. The changes to the ramp grades requires the depth of the basement to be increased (by 0.127m) and the overlying floor levels raised by 0.2m. There is a also a consequential changes to the internal arrangements on the ground floor to match basement wall configurations.
3. None of these amendments are controversial. The changes in the building levels will not result in unacceptable amenity or visual bulk impacts.

1. In this application, approval is sought to add a lift, amend the basement access and add a roof top deck. These amendments require consequential amendments to the building height, setbacks from street and setbacks from neighbouring property boundaries.
2. I find that the mix of merit and underlying principles to be applied to section 87A applications weigh against these amendments being approved, save for those associated with the basement access. My reasons for these findings have been set out above, but in the main can be summarised as amounting to incremental changes which when considered in total result in a building form with unacceptable levels of amenity and streetscape impacts. In terms of the principles that apply to requests for section 87A amendments, I have found that there is no change in site context, planning controls or other matters that weigh in favour of allowing these impacts.
3. As a consequence of these findings it follows that apart from the changes to the basement garage access and some other inconsequential changes in service provisions and detailing, the other, more substantive amendments are not granted.
4. I have framed my order to reflect these outcomes by directing amendments to the permit conditions to allow:
   • Amendment of the access ramp to grades that comply with Australian Standards shown as amendment #16 of Plans dated 5 July 2011, VCAT Issue 7;
   • Relocation of the external entry stair wing walls shown as amendment #12 of Plans dated 5 July 2011, VCAT Issue 7;
   • Amendment of basement finished floor level to 12.742m RL, ground floor to 15.269RL and first floor to 18.119 shown as amendments #13, 14 and 17 (in part) of Plans dated 5 July 2011, VCAT Issue 7;
   • Consequential changes to ground floor internal layout to suite the basement configuration shown as amendment #15 of Plans dated 5 July 2011, VCAT Issue 7;
5. The amendments to the roof top chimney enclosures and colourbond screening of air conditioner units are inconsequential amendments which can generally be considered to covered by the existing permit condition 1(g). I see no reason to make specific amendments to the conditions to deal with these matters and in light of my findings to not allow some of the amendments, further changes to the location and screening of these services may be contemplated. This will be possible under existing condition 1(g).

[1] S.87A(1) of the Act.

[2] S.87A(2) of the Act.

[3] SMP Architects v Yarra CC [2010] VCAT 655.

[4] The King David School v Stonnington CC & Ors [2011] VCAT 520.

[5] Marone Pty Ltd Joint Venture v Glen Eira CC [2011] VCAT 1650.

[6] I note here that the previously part completed dwelling to the east has now been completed. However the nature of this dwelling was considered in the earlier Tribunal deliberations and so the context for this site cannot be said to have changed because of this building having been completed.

[7] [2010] VCAT 655 at {25] to [29].