1. The internal balconies of Apartment 3 and 4 are changed to a 2.4 metre high fire rated barrier. The barrier to the internal balcony of Apartment 3 will be foam clad and the barrier to the internal balcony of Apartment 4 will be constructed of brick. 2. The glass handrail located on the south side of the external balcony of Apartment 4 will be replaced with a 1.6 metre high rendered brick barrier to meet fire ratings. 3. The eastern wall of Apartment 2 has been moved to 0.95 metres east, to have the weight of the wall in line with the brickwork on the ground floor and the panels in the basement. The proposed change will reduce the need to have extra support beams on the concrete slabs. As a result of this change, the east facing glazed door and windows of the dining room to the apartment (2.7m x 3.2m dimension) is replaced by a window (2.3m x 1.5m dimension). 4. The eastern wall of Office 5, located on the ground floor has been moved 0.95 metres. 5. As a result of the above change (i.e. No. 5), the floor space of the office component has increased by 6.2sq.m in total, from 568.3sq.m to 574.5sq.m. Variations to the floor space of each office are as follows: * Office 1 floor space increased by 0.7sq.m from 128.3sqm to 129.0sq.m; * Office 3 floor space increased by 9.0sq.m from 97.0sq.m to 106.0sq.m; * Office 4 floor space decreased by 10.0sq.m from 130.0sq.m to 120sq.m; and * Office 5 floor space increased by 6.5sq.m from 116.0sq.m to 122.5sq.m. 6. Steel boxing is provided to the aluminium framed windows located on the first floor of the north elevation in order to support the large windows. 7. The square planter boxes located on the north side of the ground floor have been replaced by 2 rectangular planter boxes, 11.4 metres and 7 metres in length, respectively. 8. The planter box located on the north east corner of the site has been removed to allow the disable ramp, also located on the north east corner to be extended to meet BCA requirements. 9. The floor area of the toilets associated with offices 1-5 have been increased to comply with AS 1428.4: Disabled Amenities requirements. 10. The bicycle storage facilities previously shown on the endorsed Basement Plan, adjacent to the lift will be moved to under the stairwell and shown on the Basement Plan. 11. The 8 bin storage spaces previously shown on the endorsed Basement Plan, adjacent to the lift, will be placed in front of the car parking spaces allocated to the office and residential uses, along the northern boundary of the basement car park. 12. The configuration of the wall of the dining room of Apartments 1 and 4 has changed. 13. The setback of Bedroom 2, Apartment 1 and Bedroom 1, Apartment 2 to Riversdale Road (shown on the First Floor Plan) has decreased by approximately 0.7 metres. The setback to Riversdale Road is now approximately 5.4 metres when measured from Riversdale Road to Bedroom 2, Apartment 1 and Bedroom 1, Apartment 2, respectively. 14. The skylight in the foyer area of the first floor has been removed in lieu of 2 sensored, wall-mounted lights. The sensored lights will provide greater illumination of the foyer area as daylight to the skylights shown on the endorsed plans was obstructed by a box gutter located within 100mm of the skylight. 15. The floor area of the residential component has changed as follows: * Apartment 1 floor space has increased by 3.5sq.m from 122.5sq.m to 126.0sq.m; * Apartment 3 floor space has increased by 0.6sq.m from 132.4sq.m to 133.0sq.m; and * Apartment 4 floor space has decreased by 0.7sq.m from 135.4sq.m to 134.7sq.m. A decrease in the width of the family/living room of Apartment 4 from 7.0 metres to 6.2 metres has contributed to the change in floor space. 16. The balcony entry from Apartment 4, as shown on the West Elevation plan is changed from 'full height double glazed tinted windows' to 'full height glazed stacker doors'. 17. The dimension of the north-facing window in relation to the dining room of Apartment 1 has changed. The endorsed Elevation Plan shows the window situated 0.4 metres above the first floor level (FFL). The window now sits 1.5 metres above the FFL. The dimensions of the window have also changed from 2.3m x 0.9m to 1.2m x 0.7m.
2. The Responsible Authority is directed to endorse amended plans in accordance with this order, subject to correction of any minor inconsistencies in the plans.

1. Through this proceeding, the applicant seeks to review the decision of the responsible authority, Boroondara City Council, to refuse to approve an amendment to plans by way of secondary consent under a permit.
2. As with two similar Boroondara matters in preceding weeks, the responsible authority relied upon a legal submission that was essentially common to all three matters, dealing with the issue of when secondary consent was appropriate having regard to the criteria set out in Westpoint Corporation Pty Ltd v Moreland City Council[1]. In this matter, the applicant also made a submission on these legal issues, as well as addressing the substantive merits of the application.
3. In the first of the three Boroondara matters, Zuzek v Boroondara City Council[2], I set out a number of principles relevant to the circumstances under which it was appropriate to use the secondary consent mechanism to amend endorsed plans. In particular, I reconfirmed the criteria set out in Westpoint, and the way in which those criteria had been developed from earlier decisions including Mentone Mansions Pty Ltd v Kingston City Council[3]. The legal submission from Mr McKenzie on behalf of the applicant also drew my attention to this earlier case.
4. The principles in Zuzek are equally applicable to this case, and this matter again requires a judgment to be made, in the context of the facts of this case, in relation to the operation of the third criterion in Westpoint, namely whether the proposed change to plans is "of no consequence having regard to the purpose of the planning control under which the permit was granted".
5. The facts of this case are relatively straightforward. A planning permit was issued on 17 October 2005 by the responsible authority at the direction of the Tribunal. The permit authorised the development of a three level building, use of upper levels for dwellings, a car parking dispensation, and alterations to road access, all in accordance with endorsed plans. The office use at ground floor level did not require a planning permit.
6. The permit was amended on 24 February 2006, also at the direction of the Tribunal following a proceeding under s 87 of the Planning and Environment Act 1987. Plans were endorsed on 10 March 2006. These plans were amended, utilising the secondary consent mechanism, on 20 June 2006.
7. The building was subsequently constructed with additional changes to those that had been formally approved. On 4 June 2007, the applicant sought secondary consent to amend the endorsed plans to essentially legitimise these changes. Although I have ultimately agreed with the changes, I in no way condone the conduct of the applicant, and the applicant leaves itself open to possible prosecution for its technical non-compliance with the earlier plans. Equally, I must properly disregard that non-compliance in assessing the planning merits of what is before me.
8. Of the changes indicated in the material before me, I was informed that 11 of the changes were non-contentious, and a further matter was clarified in the course of the proceeding. These several changes are set out in the responsible authority's written submission, and include the provision of additional windows, change to balcony barriers, minor changes to the internal layout, minor changes to planter boxes, etc. I do not propose to discuss these non-contentious matters. If they alone comprised the request for secondary consent, both the applicant and responsible authority agreed they could be dealt with under that process.
9. The so-called contentious changes that remained had led to a Council refusal in September 2007 on the grounds that certain changes were of consequence having regard to the purpose of the planning control under which the permit was granted, namely:
   • the reduction in setbacks to Warrigal Road and Riversdale Road;
   • the changes to the external appearance of the development;
   • the proposed increase in office floor space, which will affect car-parking requirements associated with the office component of the development.
10. The delegates report of 19 September 2007 notes the following in relation to these three matters:
    • The proposal to reduce the setback of the ground and first floor to Warrigal Road and the first floor to Riversdale Road, is of consequence as the amendments will impact on the articulation of the building where bulk was considered a significant issue in the initial assessment of planning application PP04/01391.
    • The proposed change to the north-facing dining room window of Apartment 1, changed from the dimension of 2.3 metres x 0.9 metres to 1.2 metres x 0.7 metres is of consequence having regard to the appearance of the development from the public realm. The significant issue raised in the initial assessment was the integration of the development with the surrounding residential uses, having particular regard to how the design of the development could contribute to or minimise the bulk of the development.
    • The increase in office floor space from 568.3sq.m to 574.5sq.m is of consequence having regard to Clause 52.06 (Car parking) as the proposed increase in floor space will affect car parking requirements associated with the office component of the development. In consideration of the requirements of the planning control, the proposal cannot be considered under secondary consent.
11. The submissions of the responsible authority took me at some length through the earlier Tribunal decision[4] through which the primary consent had been granted. It is clear that the Tribunal in that case saw the street setbacks, building articulation, and adequacy of car parking as being amongst the key issues to be determined, and there was much discussion about the height, scale and mass of the building.
12. Whilst these were certainly key issues in the earlier Tribunal decision, it does not necessarily follow that this is a basis in itself for refusing secondary consent. As I indicated in Zuzek, even if the proposed change to the plans does affect a factor relevant to the original permit consideration, the consequence of the change must still then be considered vis-à-vis for the purpose of the planning control. In Zuzek, I followed earlier decisions that had indicated there was a continuum of possible changes that may be considered, and it is a question of judgment having regard to the nature of the change to plans in its context in each case. Within the middle of this continuum, it would be possible to form a view that a change is acceptable and of no real consequence despite it relating to the purpose of the planning control for which the permit was granted. Equally, that judgment may lead to a view that the change is potentially of consequence having regard to that planning control.
13. It was a little difficult to form the requisite judgment in this case because neither party clearly articulated the "relevant planning controls" relating to the judgment I might make. However, having considered the proposed changes insofar as I am able, I have formed a view that some of them are "of consequence, having regard to the relevant planning controls under which the permit was granted". In this regard, I have considered the relevant controls to be those pertaining to the Business 2 zone at cl 34.02 of the Boroondara Planning Scheme, and the local policy objective on 'Office Use & Development' at cl 22.08 referred to me by Ms Morris, namely:

To ensure that the form of new office development contributes in a positive manner to the overall character and amenity of commercial and surrounding residential areas.

1. In relation to this latter local policy objective, Ms Morris properly drew my attention to the fact that there were specific policies in support of this objective, in relation to matters such as façade design, building setbacks, design bulk and height etc. However, she did not take me to the content of those policies nor the decision guidelines at 22.08-4 that stem from them. Having myself reviewed those policies and decision guidelines, I do not believe there is anything in particular in the changes to the plans proposed (and as-constructed) that undermines the local policy framework. Indeed, I find to the contrary. It cannot be said, for example, that the amended plans provided a façade design and articulation to residential areas that is any less than the earlier plans. The design, bulk and height is still well below the four-storey maximum and, given the corner site, well reflects the scale of commercial uses appropriate for the area. Despite the changes, the interface with the adjoining residential area is essentially unchanged. The car parking layout complies with the Council policy in Clause 22.08, and the I am satisfied that the parking provision is adequate.
2. Even issues that might seem on their face to be more contentious relating to the building articulation and setbacks are not necessarily matters that are inappropriate under secondary consent. It is a matter of judgment having regard to the extent of the change having regard to the planning control. It is possible that there could be quite substantial changes to the building articulation which would still be appropriate to deal with under secondary consent, without offending this local policy. Mr McKenzie for the applicant argued that the change in setback and presentation to the Warrigal Road and Riversdale Road frontages did not materially detract from the streetscape presentation, with the elevation remaining visually interesting and highly articulated through changes in depth, form and materials. He argued that the "as-constructed" solution should be accepted as a suitable design outcome, having regard to the provisions of the buildings and works issues set out in the Business 2 Zone. The changes to the building articulation have little (if any) impact on surrounding residential areas, which is a key consideration under both the zone and local policy decision guidelines.
3. I do not believe it is sufficient, as argued by the responsible authority in a couple of instances, that the original plans simply provided a "better" presentation to the street. If the proposed changes provide an acceptable outcome in planning terms, having regard to the planning control under which the primary consent was given, it is still possible for these matters to be dealt with by way of secondary consent. As I have indicated, I do not believe it is sufficient for the responsible authority to argue that secondary consent should be refused for the reduced setbacks because bulk was a significant issue in the original assessment. Having regard to the decision guidelines for the Business 2 zone and under the local policy, I am satisfied that the building as-constructed still contains significant articulation in it built form and generally meets the planning objectives for a commercial or mixed use development on a site such as this.
4. Equally, I do not believe matters such as the change to the north-facing window of Apartment 1, or the change to the south side external balcony screening of Apartment 4 are of real consequence having regard to the controls I have mentioned.
5. The responsible authority's third ground of refusal was predicated on the basis that a proposed minor increase in office floor space (of approx 6.2 square metres), although not contentious in itself, would affect car parking requirements associated with the office component of the development, and would arguably increase the car parking requirements by one space. The applicants are in fact proposing a reduction in car spaces by one car space, and the responsible authority indicated it would not support such a change.
6. The applicant relied upon a passage in Westpoint, where the Tribunal had indicated that secondary consent could be used to allow a further reduction in car parking over and beyond a reduction authorised through the primary consent[5]. This was held not to offend the second Westpoint criterion that secondary consent could not be used to authorise something for which primary consent is required under the planning scheme. The Tribunal in Westpoint relied on the relevant objective of Clause 52.06 as being to ensure the provision of an appropriate number of car spaces having regard to the activities on the land and the nature of the location.
7. In this case, the responsible authority argued that the reduction in car spaces notionally authorised by the permit was essentially to approve a number of spaces being tandem spaces, rather than a reduction in absolute numbers. It was therefore argued that the reduction of one car space now sought was 'of consequence' and potentially a matter of primary consent. I agree however with the decision in Westpoint that, where a reduction in car parking has been approved as part of the initial primary consent, it is possible to further reduce the car parking requirements as a consequence of other changes to plans being undertaken by way of secondary consent. The permit preamble for the relevant permit in this case expressly provides permission to "reduce the car parking requirement". Having had regard to the overall development and location, I am satisfied that the loss of one office car space is not of consequence having regard to the relevant planning controls under clause 52.06 or the car parking matters in council's local policy referred to above, and this reduction can be authorised by secondary consent.
8. It follows from the above that the application for secondary consent is made out and the responsible authority's grounds of refusal are not substantiated. The application before this Tribunal is therefore allowed.
9. The responsible authority had filed a memorandum dated 1 November with the Tribunal containing a merits assessment of the proposed changes, which I have had regard to in reaching my decision although Ms Morris did not draw my attention to it specifically. That memorandum noted that there were some minor inconsistencies with the amended plans, although the only example given was that the submitted plans had not been annotated to show that the maximum wall height on the west boundary will not exceed 96.72 AHD as per condition 1(a) of the permit. The memorandum indicated that, should the Tribunal direct the responsible authority to endorse the submitted plans, these minor inconsistencies ought to be corrected. I have allowed for this in my order, although this is intended to facilitate the correction of any minor inconsistencies and not re-open any broader merits issues.

[1] [2005] VCAT 1049

[2] [2007] VCAT 2174

[3] [2000] VCAT 1947

[4] MLP Corporation Pty Ltd v Boroondara City Council [2005] VCAT 2194. The subsequent s87 proceeding is reported at [2006] VCAT 260