TP0.00, TP0.01, TP0.02, TP0.03, TP0.04, TP1.01, TP1.02, TP1.03, TP1.04, TP1.05, TP1.06, TP1.07, TP1.08, TP1.09, TP1.10, TP1.11, TP1.12, TP1.13, TP1.14, TP2.01, TP2.02, TP2.03, TP2.04, TP3.01, TP3.02, TP3.03, TP5.00, TP5.01, TP6.01,

2 Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998, Coral Rise Pty Ltd is joined as a party to this proceeding.

3 The application is allowed. Pursuant to section 87A of the Planning and Environment Act 1987, Planning Permit No. MV/949/2014, issued by the responsible authority in respect of the subject land, is amended as follows.

4 What the permit allows is amended to read as follows:

• the construction of a multi-storey building accommodating ground floor retail, dwellings, office and a residential hotel;
• use of the land for an office; and
• a reduction in the car parking requirements.

5 Conditions in the permit are amended as follows:

(a) Condition No. 1 is amended to read as follows:

1 Before the development starts, amended plans (three copies) must be submitted to, and be approved in writing by, the responsible authority. The plans must be to the satisfaction of the responsible authority, must be drawn to scale and be generally in accordance with the plans by CHT Architects, sheets TP0.00 - TP6.01 (inclusive), all marked Revision P6, but modified to show:

(a) the provision of 300mm trench grates at the bottom of the ramp;

(b) any wind mitigation measures and changes to the built form as a consequence of Condition 4;

(c) a revised Sustainability Management Plan and associated updates to the plans in accordance with Condition 18;

(e) car parking, car parking design, loading, bicycle, vehicle crossing and waste changes in accordance with the recommendations of the Council's Traffic and Transport Unit dated 13 April 2021 and Waste Management Unit dated 22 March 2021;

(f) the clear and correct property boundary to Homer Street (currently obscured by the built form projecting into the public realm);

(g) all built form (except balconies and architectural features) must be contained within the title boundaries of the subject site, with no projections into the public realm;

(h) the ground floor lobby entrance doors to open inwards and not project into the public realm;

(i) a bicycle wheeling ramp incorporated into the lobby stairs between the ground floor and first floor basement;

(j) provision of visitor bicycle parking accommodated within the ground floor lobby;

(k) a consistent ground floor setback along the Homer Street frontage, including the setback of any structural elements, consistently applied to the ground and first floor levels, where possible;

(l) the internal stairwells redesigned to accommodate stairwells in an unenclosed manner to common areas, where possible. Alternatively, the internal stairwells redesigned to facilitate glazed stairwell doors and walls to common areas, where possible;

(m) external glazing to the stairwell on the northern boundary, where possible;

(n) all habitable room windows and balconies provided with privacy screening and/or design measures to limit overlooking in accordance with the requirements of Clause 55.04-6 (Overlooking) of the Moonee Valley Planning Scheme. Any screening should facilitate outward views where possible;

(o) confirmation of location of storage facilities for each dwelling. The storage must meet the objective of clause 58.05-4 of the Moonee Valley Planning Scheme;

(p) measures to mitigate internal overlooking between units 205 and 206; and units 405 and 406;

(q) provision of a window to bedroom of unit 306, with appropriate screening which mitigates overlooking to unit 305;

(r) glazing of the southern and western facades of the office and services apartments at Levels 1 - 4 with "Dark Glass (GLO4)";

(s) screening in accordance with clause 55.04-6 of the Moonee Valley Planning Scheme of the balconies and habitable room windows in the western elevation which are located less than 4.5 metres from the centreline of the adjoining laneway;

(t) the deletion of all parts of the building/s which exceed the building height/s shown on the plans endorsed by the responsible authority on 27 February 2018, as generally indicated in Figure 20 contained in the expert evidence report of Ms Julia Bell of Kinetica, filed with the Tribunal in proceeding P14/2021.

Once approved these plans become the endorsed plans of this permit.

(b) Condition No. 4 is amended to read:

4 Concurrent with the submission of plans for endorsement under Condition 1, an updated wind impact assessment must be submitted to the Responsible Authority for approval. The assessment must be generally in accordance with that undertaken by Vipac Engineers and Scientists but modified to address the changes shown on plans to be endorsed under Condition 1. The assessment must also undertake a comprehensive scale model wind tunnel test of the proposed development and surrounding properties to the satisfaction of the Responsible Authority, including the approved development at 8-24 Everage Street, Moonee Ponds. The assessment must clearly reference all relevant development plans and be prepared by a suitably qualified expert to the satisfaction of the responsible authority. When approved, the amended wind impact assessment will be endorsed and will form part of the permit. The provisions, recommendations and requirements of the endorsed wind impact assessment must be implemented and complied with to the satisfaction of the responsible authority.

12 The loading and unloading of vehicles (including waste collection) and the delivery of goods to and from the land must:

(a) only be carried out within the designated loading bay on the land;

(b) not disrupt the circulation and parking of vehicles, pedestrian circulation or access; and

(c) not be carried out during the morning and evening peak periods

18 Before the development starts, the Sustainability Management Plan prepared by Frater Consulting Services dated 17 December 2020 must be amended in accordance with Condition 1 of this permit and must be submitted to, and be approved in writing by, the responsible authority. The Sustainability Management Plan must include a JV3 assessment. The approved Sustainability Management Plan must be implemented and appropriately managed during the construction of the development.

(e) Condition No. 20 is amended to read as follows:

20 Buildings or works must not be commenced until a landscape plan prepared by a suitably qualified and experienced person or firm has been submitted to and approved by the responsible authority. The landscape plan(s) must be generally in accordance with the plans prepared by Hansen Partnership dated 15 December 2020 but modified to reflect:

(a) the plans endorsed under Condition 1 of this permit, and

(b) landscaping changes in accordance with the recommendations of Council's Landscape Architect dated 22 March 2021.

(f) Condition No. 24 is amended to read as follows:

24 Before the development starts, an amended Waste Management Plan to the satisfaction of the responsible authority must be submitted to, and be approved in writing by, the responsible authority.

When approved, the Waste Management Plan will be endorsed and will then form part of this permit.

The provisions, recommendations and requirements of the endorsed Waste Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.

(g) The following condition is included as Condition No. 27:

27 Before the development starts, a Car Parking Management Plan to the satisfaction of the responsible authority must be submitted to, and be approved by, the responsible authority. The Car Parking Management Plan must be prepared by a traffic consultant with suitable qualifications to the satisfaction of the responsible authority. When approved, the Car Parking Management Plan will be endorsed and will form part of this permit. The provisions, recommendations and requirements of the endorsed Car Parking Management Plan must be implemented and complied with to the satisfaction of the responsible authority.

(h) Existing Condition No. 27 is renumbered to become Condition No. 28.

6 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.

Mr J Cicero, Lawyer, of Best Hooper Lawyers. Evidence was called from:

• Mr D Soussan, Town Planner of Tract Consultants Pty Ltd
• Ms J Bell, Urban Designer of Kinetica

Mr W Wheeler, Town Planner, assisted by John Hannagan, Lawyer of Harwood Andrews

Mr D Robinson of counsel, instructed by BSP Lawyers

An amendment to an existing permit for multi-level, mixed-use development, with the notable changes being:

• a reduction of the number of dwellings from 187 to 151;
• the provision of a residential hotel with 99 serviced apartments;
• a reduction in the retail floor area at ground floor from 668 square metres to 437 square metres;
• the provision of 504 square metres of office floor space at second floor instead of 200 square metres of 'commercial' space;
• a reduction in the number of car spaces from 212 to 157;
• an increase in the number of bicycle spaces from 37 to 140;
• provide a three-level 'skywalk' connecting the two towers;
• the replacement of a rooftop garden on the eastern tower with dwellings;
• variations to setbacks from the north, east and west boundaries;
• a reduction on the maximum building height from 50.07 metres to 48.95 metres, but with an increase in the number of levels from 13 to 14 through a reduction in floor-to-ceiling heights; and
• a different architecture for the development.

Request under section 87A of the Planning and Environment Act 1987 - to amend a planning permit issued at the direction of the Tribunal.

Moonee Valley Planning Scheme (Planning Scheme)

Activity Centre Zone, Schedule 1 - Moonee Ponds Activity Centre (ACZ1)

Abuttal to a road in a Road Zone - Category 1 (RDZ1)

Cl 34.08-2 (use of land in the ACZ1 for an office with access shared with a dwelling)

Cl. 34.08-5 (construction of a building and the construction or carrying out of works on land in ACZ1)

Cl. 36.04-2 (construction of a building and the construction and carrying out of works on land in RDZ1)

The site is located on the north-west corner of Homer Street and Mt Alexander Road in Moonee Ponds. It is irregular in shape, has a frontage to Mt Alexander Road of 18.76 metres and a sideage to Homer Street of 85.8 metres. The land has an overall area of approximately 1,708 square metres. The site is relatively flat and is currently vacant. To the north is a two-storey heritage building, the rear of which is a four-storey apartment development. Also abutting to the north is a property which supports a two-storey commercial building with a car park at the rear. To the south, on the opposite side of Homer Street, is the Moonee Ponds Central Shopping Centre. To the west is a single-storey commercial building. On the eastern side of Mt Alexander Road is parkland and the Moonee Valley City Council civic centre.

At the conclusion of the hearing, we indicated that we would undertake an inspection of the site and surrounds. Upon review of the submissions, evidence and the material filed by the parties, we consider that we have sufficient information to determine the application and would not be assisted by an inspection. Accordingly, an inspection was not undertaken.

1 On 21 July 2016, the responsible authority (Council) issued planning permit no. MV/949/2014 authorising the construction of a multi-storey building accommodating ground floor retail, dwellings, reduction in the car parking requirements and works within a Road Zone (the permit). The permit was issued at the direction of the Tribunal, as an outcome of a compulsory conference.[2]

2 The permit has not yet been acted on. The Council has extended the time by which the development authorised by the permit must commence to be 21 July 2022.

3 The applicant wants to amend the permit, including the plans which have been endorsed pursuant to it.

4 In 2019, the applicant applied to the Council under section 72 of the Planning and Environment Act 1987 (the P&E Act) to amend the permit. Council refused that amendment application and the applicant applied to the Tribunal for a review of that decision under section 77 of the P&E Act (the 2020 proceeding).

5 By order dated 21 September 2020, the Tribunal struck out the application (the 2020 Tribunal decision). It did so based on its conclusions that:

• the proposed amendment before it was a transformation of what is allowed under the permit, rather than an amendment to the permit; and
• therefore, the Tribunal did not have the power to consider the application to amend the permit.[3]

6 The applicant has subsequently made this application to the Tribunal pursuant to section 87A of the P&E Act. This is a different legislative means for seeking the amendment of the permit, compared to that utilised by the applicant in 2019. The amendments sought have also changed.

7 The Council supports the amendments, subject to the inclusion of new or modified permit conditions.

8 The respondent opposes the amendments for reasons which, in summary, include:

• It remains a transformation of the permit and is an effective 'repeat appeal', having the potential to undermine the Tribunal's previous ruling.
• The amendments to the permit are prohibited as they exceed the mandatory height limit of 32 metres applying to the land under the Planning Scheme and the applicant has no accrued right to be granted an amendment to the permit which exceeds that height limit.
• The application does not satisfy the built form objectives of the ACZ1.

9 The applicant submitted that the proposal can be approved as an amendment to the permit. It also submitted that there are accrued rights which enable the proposed amendment of the permit, notwithstanding the mandatory height limit which now applies. In terms of the planning merits of the amendment, the applicant relied on the expert evidence of Mr Soussan and Ms Bell in support of its submissions that the amended proposal is an acceptable planning outcome.

10 Having considered the submissions and the evidence, with regard to the relevant policies and provisions of the Planning Scheme, we have decided to grant an amended permit, subject to conditions which modify the proposal in certain respects. In summary, the reasons for this are:

• the proposal is properly construed as an amendment to the permit.
• there are accrued rights pursuant to the permit which allow the grant of an amended permit for the proposal, subject to us imposing a permit condition which require some changes to the plans to reduce the height of parts of the amended proposal.
• the proposal is an acceptable planning outcome.

11 The parties agreed that there were questions of law which arise in this proceeding. Two of these questions of law were agreed by the parties to be:

(a) Question 1: Is the application beyond the scope of s 87A of the Planning and Environment Act 1987 because it involves a transformation of the permit?

(b) Question 2: Can the applicant rely on an accrued right (within the meaning of s 28(2)(e) of the Interpretation of Legislation Act 1984) to seek or be granted an amendment to the permit for a form of development above the mandatory height limit in sub-precinct 2C of the ACZ1, but within the height of development approved under the existing permit?

12 The respondent submitted that there were the following further questions of law which were for determination as sub-questions to Question 2 above:

• Does a planning permit by its nature confer rights capable of being 'accrued' or 'acquired' by an individual?
• Does the scope of any right conferred extend to a discretionary permit amendment for a modified form of development contained within the same notional building envelope as the development approved under the existing permit?
• Do the terms of the ACZ1, that a permit 'cannot be granted or amended to vary a mandatory maximum building height', constitute an express contrary indication to any presumption that the mandatory height limit will not apply to the amendment of a permit?

13 The applicant submitted that these sub-questions were not questions of law but matters for submissions that may be made in response to Question 2. However, it acknowledged that these were all matters which were to be considered as part of Question 2 and that it did not consider it to matter whether the Tribunal answered the sub-questions individually or as part of the answer to Question 2.

14 The Tribunal constituted to hear this proceeding includes an Australian Lawyer, Member Blackburn. All findings and determinations on questions of law raised in this proceeding are determinations of Member Blackburn.[4] The proceeding as a whole has been determined jointly by Senior Member Sibonis and Member Blackburn, based on the findings of Member Blackburn on the questions of law.

15 If the answers to the question of law do not have the result of dispensing with the application, then we must consider the planning merits of the proposed amendment to the permit. Based on the material before us, the issues which we consider to be key to our determination of the planning merits of the proposal are:

• Are the amendments an acceptable response to the site's policy and physical context?
• Will the amendments give rise to unacceptable amenity impacts?

QUESTION OF LAW NO. 1: AMENDMENT OR TRANSFORMATION?

16 Section 87A of the P&E Act has the title 'cancellation and amendment of permits issued at the direction of the Tribunal'. It says that, at the request of the owner, occupier or a person entitled to use or develop the relevant land, the Tribunal may:

cancel or amend a permit that has been issued at its direction if it considers it appropriate to do so.

17 The term 'amendment' is defined by section 3 of the P&E Act to include addition, deletion or substitution.

18 I agree with the applicant that the power to amend is a broadly expressed power.

19 I also agree with the applicant that provision for third party participation in the amendment process provided by the P&E Act supports the view that it is intended to allow a broad range of amendments to be made to a permit. In particular, I note that section 90 of the P&E Act requires the Tribunal to give a range of persons a reasonable opportunity to be heard at the hearing of a request under section 87A, including any person who appears to it to have a material interest in the request. In practice, this facilitates a fair process for making significant changes to a permit via an amendment, by providing public participation rights which are similar to those that would arise if a fresh permit application had been made.

20 However, I also agree with the applicant's suggestion that the concept of amendment indicates the permit in question should remain in existence and this may limit the changes that can occur by way of amendment. A limitation of this nature on the broad power of the Tribunal to amend a planning permit has been confirmed by the Tribunal in many past decisions.[5] These decisions include Bestway Group Ltd v Monash CC[6] where the Tribunal said:

If a proposed use or development is totally unrelated to the permit as it exists and would entail completely new conditions, I consider that the amendment process would be inappropriate. There would be no point in attempting to amend a permit in such circumstances where nothing would be left of the original permit. An application for a new permit should be made. However, where the permit is not transformed but retains significant elements of its previous content, and simply adds to, expands or alters what has been previously allowed, I consider that amending a permit, rather than always having to apply for a new permit, is now clearly contemplated by the provisions in the Act.

21 In this case, the proposed amendment of the permit includes:

• A change to what the permit allows to:
  • include permission for use of part of the first floor of development as an office (as per the evidence of Mr Soussan discussed below, this is more in the nature of a correction as the plans currently endorsed under the permit appear to contemplate an office use at first floor level).
  • change the description of what is to be accommodated within the approved development, to include a residential hotel.
• Amendment or deletion of permit conditions 1, 4, 18, 20 and 24 to reflect new development, waste management, landscape and sustainability management plans. Council has suggested the amendment rather than the deletion of these conditions, and this has been generally accepted by the applicant. Council has also suggested the addition of a new condition as a result of the amendment of the permit, to require a car parking management plan and this was not opposed by the applicant.

22 The application plans differ from the endorsed plans in many respects, including:

• Changed external appearance of the building, with a change to the architectural expression and the palette of materials and finishes.
• Changes to the shape and setbacks of the building, although it will still broadly follow the same building envelope as the building shown in the endorsed plans.
• The number of levels is proposed to increase from 13 to 14, with this generally achieved by a reduction of the ceiling heights of each level within the building.
• The setback of the five basement levels to Mt Alexander Road has been increased, with a reduction to the number of car parking spaces provided from 212 to 157.
• A change to the land uses, meaning fewer car parking spaces are required for the amended proposal. The endorsed plans show 868 square metres of commercial floor space at ground floor and level 1, with the remainder of the 13 levels providing for 187 apartments. The proposal is to provide 941.5 square metres of commercial floor space at ground and first floor, a residential hotel on floors 1 to 4 (inclusive) with a ground floor lobby, and 151 apartments.
• An increase in the number of bicycle spaces available from 67 to 140 and the provision of 8 motorcycle spaces (no such spaces are shown on the endorsed plans).

23 While there are numerous differences between the application plans and those currently endorsed under the permit, when the proposal to amend the permit is considered more broadly, there remain many similarities to the permit, including:

• The primary permission granted remains the construction of a multi-storey building.
• The scale and shape of the multi-storey building in the application plans is similar to that shown on the endorsed plans.
• The application plans still include a mix of uses, all but one of which do not require a permit pursuant to the provisions of the ACZ1.
• The amendment of the permit to include permission for an office use is a minor component of the proposal and appears to be already contemplated by the endorsed plans.
• The majority of the permit conditions do not need to be altered as a result of the amendments to conditions 1, 4, 18, 20 and 24.

24 I consider these broad similarities between the proposal and what is currently approved mean that the proposal can quite clearly be said to be an amendment to the planning permit.

25 While there are a range of substantive differences between the proposed and approved development, it cannot be said that I am being asked to amend the permit in a manner that means it would be unrelated to what currently exists. On the contrary, I consider the permit will continue to retain significant elements of its previous content, including that it will continue to authorise a multi-storey building of a similar scale and which is subject to similar permit conditions.

26 For this reason, I have concluded that there is jurisdiction for the Tribunal to consider the proposal under section 87A of the P&E Act.

27 My conclusion on the application before Senior Member Sibonis and myself is different to the conclusion of the Tribunal in the 2020 proceeding. I note that I am not bound by the 2020 Tribunal decision and I must determine this application afresh. This is because the legal principles which apply in civil proceedings to provide some finality to litigation processes do not apply to planning litigation.

28 However, there are a set of principles developed by a number of Tribunal and Supreme Court cases which do provide guidance in circumstances, like the present, where there are repeated applications made in respect of the same site. The application of such principles to applications under section 87A was discussed by the Tribunal in The King David School v Stonnington CC & Ors,[7] where at paragraphs 16 and 17 it said:

That said, there are some aspects of the principles that apply to 'repeat appeals' that are relevant to the Tribunal's consideration of a s 87A application to amend a permit, particularly only a very short time after it has issued. Public policy seeks to ensure that there is some finality to litigation. It is to the detriment of the planning system generally, and to the certainty of the permit review process, if permit applicants are able make repeated applications to the Tribunal on similar subject matter, as a basis for simply seeking to change an earlier Tribunal decision with which they do not agree. It undermines confidence in the planning system by affected parties (primarily responsible authorities and objectors) and the community at large, as well as imposing an additional cost burden on them ...

We consider that the flexibility afforded by s 87A should not be used to undermine the intent of the original Tribunal decision unless there is some sound justification for doing so. In short, s 87A should not be used as a de facto review of the original Tribunal decision in order to seek a more favourable outcome, or as an attempt to 'win back' development aspirations that were not supported in the original Tribunal decision. In our view, this would rarely (if ever) be "appropriate" for the purposes of s 87A, as it would undermine the finality and certainty of the review process. We therefore consider a degree of caution should be exercised by the Tribunal under s 87A in making substantive changes to key permit conditions upon which an original Tribunal decision was predicated - at least in the immediate period following the original Tribunal decision and in the absence of a change of circumstance or some other good reason that makes it "appropriate" to do so.

29 In this instance I consider that there is good reason for reaching a conclusion which differs from that reached in the 2020 proceeding. The 2020 Tribunal decision made it clear that the conclusion reached was based on the combination of changes proposed in that instance, including changes to the proposed uses, internal layout, external appearance of the building and the modified conditions.[8]

30 While some elements of this proposal are similar to those before the Tribunal in the 2020 proceeding, other elements are different including the land use mix and some of the internal and external changes. Some of these differences may, on their own, appear small. However, small changes can still make a difference to an overall assessment of whether a proposal is properly considered to be an amendment. As there is a different combination of proposed changes, compared to those before the Tribunal in 2020 proceeding, it is this different combination which must be the focus of my assessment, and the conclusion that I have reached is based on this different combination of proposed changes.

Is the application beyond the scope of s 87A of the Planning and Environment Act 1987 because it involves a transformation of the permit?

32 It follows from our above reasons that I find the answer to this question of law to be:

QUESTION OF LAW NO. 2: CAN THE APPLICANT RELY ON AN ACCRUED RIGHT TO ALLOW THE PROPOSED AMENDMENT NOTWITHSTANDING THE MANDATORY HEIGHT LIMIT?

What has changed since the permit was issued that may prevent it being acted upon?

33 There has been no change to the general ability of the Planning Scheme to regulate development. Both in 2016 and now:

• The P&E Act has allowed planning schemes to regulate or prohibit the use and development of land (P&E Act, s 6(2)(b)); and
• The Planning Scheme provides that land may only be used or developed in accordance with it (clause 61.05 in 2016, now clause 72.06).

34 At the time that the permit was granted, clause 37.08-5 of the ACZ1 applied to the site and required a permit to be obtained for the construction of the building. This has not changed.

35 However, just over a year after the permit was issued, in October 2017, Amendment C183 to the Planning Scheme introduced a mandatory building height control into the schedule of the ACZ1. The control was introduced on an interim basis, pending resolution of further strategic planning work relating to the Moonee Ponds Activity Centre.

36 The date on which the interim building height controls expire has been extended a number of times.[9] The current expiry date is 31 November 2021.

37 The head clause of the ACZ1 has not changed since the grant of the permit and continues to allow building height requirements to be included in a schedule to the zone. It does so at clause 37.08-6, which says:

A schedule to this zone may include requirements relating to:

• Building setbacks.
• Building height.
• Building materials.
• Access.
• Landscaping.
• Public realm.
• Any other requirements or guidelines relating to the design or built form of new development.

A permit may be granted to construct a building or construct or carry out works which is not in accordance with any design and development requirement in the schedule to this zone unless the schedule to this zone specifies otherwise.

38 The changes to schedule 1 of the ACZ that occurred in 2017 introduced the following building height requirement:

New development must not exceed a mandatory maximum building height specified in the precinct provisions at Clause 5 of this Schedule.

A permit cannot be granted or amended to vary a mandatory maximum building height specified in the precinct provisions at Clause 5 of this Schedule.

39 The schedule goes on to say that the mandatory maximum building height does not apply to service equipment meeting certain criteria.

40 Clause 5 of the schedule says that the mandatory maximum building height (excluding basement) in precinct 2C (in which the site is located) is 32 metres.

41 The multi-storey building that is currently authorised by the permit has a maximum building height of 50.07 metres. It therefore exceeds the mandatory maximum building height requirement of the ACZ1.

42 The wording of the mandatory building height requirement in the schedule is not as clear as it could be. It applies to 'new development' but does not clearly indicate whether this is intended to mean development not yet built, or development not yet approved. I think the ordinary meaning of the term means development not yet built. If the term 'new development' was not intended to include development that had been approved but not built, it needed to clearly say so or include transitional provisions for approved development.

43 As the mandatory building height requirement now prohibits the construction of the multi-storey building approved by the permit, the permit can only be acted upon if there are rights to act on it that have already accrued and are unaffected by the change to the Planning Scheme.

Are there 'accrued rights' enabling the permit to be acted upon, notwithstanding the prohibition now in the Planning Scheme?

44 Section 28 of the Interpretation of Legislation Act 1984 (ILA) supplements the common law presumption against retrospectivity, by providing statutory protection of rights from subsequent changes to the Planning Scheme (which is a form of subordinate instrument).

45 Section 28(2)(e) of the ILA says that where a subordinate instrument such as the Planning Scheme, or a provision of it, is amended, the amendment:

shall not, unless the contrary intention expressly appears -

(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provision ...

46 There is a significant body of previous case law which either directly confirms[10] or appears to have proceeded on the basis[11] that a planning permit is a right which is protected by section 28(2)(e) of the ILA.

47 This protection means that the permit is still able to be acted upon and the building authorised by the permit can be constructed, notwithstanding that after the permit was granted the Planning Scheme was changed to prohibit its construction.

48 There is no dispute that the time at which any rights under the permit accrued or were acquired was at the time the permit was granted. This is clear from the decision of the Tribunal in Simpson v Bass Coast SC.[12]

49 However, the respondent says that the permit does not give rise to a right which is protected by the ILA. It says this is because planning permits are not granted to an individual, but rather, are permissions which 'run with the land'. In addition, it says that planning permits are not rights accrued, but are merely the restoration of former liberties at general law.

50 There is nothing in the ILA that says that the right must be a right granted to an individual for it to be protected by section 28(2)(e).

51 The respondent says that the need for the right to be one that is held by an individual is inherent in the need for the right to have been 'acquired' or 'accrued' to enjoy the protection of section 28 of the ILA. In support of its submissions that planning permits are not rights for the purposes of section 28(2)(e), the respondent referred me to the comments of Stephen J in his dissenting judgement in Eaton & Sons Pty Ltd v Warringah Shire Council.[13] In that case, in respect of a consent granted under a planning scheme that had subsequently been repealed, Stephen J said:

no alleged right can be protected so long as it is one common to the community as a whole. As it was said in Abbott v Minister for Lands[14], there must be an 'act done by an individual toward availing himself of that right' before it can be said to be 'a "right accrued" within the meaning of the enactment'. What are protected are rights which have been acquired by or have accrued to an individual; consents under the present schemes do not confer rights of this character.

Secondly, I doubt whether it is proper to regard as a 'right' or 'privilege' acquired or accrued under the County Scheme what is no more than a relaxation of a prohibition imposed by that very Scheme. The Scheme took away the liberty at general law of occupiers of land to use their land as they saw fit but in relation to the appellant's land enabled the renewed exercise of that liberty in a very qualified way if a consent from the responsible authority was first sought and obtained. To describe that situation as one in which a right or privilege had accrued to or been acquired by the appellant under the Scheme appears to me to be a misuse of language; the effect of the Scheme when a permit is issued under it is merely that users of relevant land are in part remitted to their former liberties at general law.

52 The respondent was unable to refer me to any case where the views of Stephen J expressed in the above 1972 decision have subsequently been applied and a planning permit has been found to not be a right or privilege with the meaning of regulatory provisions like section 28 of the ILA. However, as I have already explained, there are many cases where the contrary view has been expressed, with many decisions now suggesting that planning permits are indeed rights or privileges which are protected by section 28(2)(e) of the ILA or similar provisions.

53 Modern day planning permits are obtained after often lengthy and costly processes, involving the preparation of multiple supporting reports, public consultation and sometimes third-party merits reviews. In my view, they are quite different to the 'letter of consent' issued in 1956 that was the subject of the proceeding in Eaton & Sons.

54 When a planning permit is now granted, it is a valuable right associated with particular land that allows that land to be used and/or developed in accordance with it. Its value is in part a result of the entrenchment of planning regulation in modern day laws. The rights to develop land which may once have been part of the general liberties of a property owner, have for a long time been qualified by an ongoing and well-established planning regulatory framework.

55 Planning permits are unique to the land in respect of which they are issued. They allow a particular use or development to occur on that land and that land alone, subject to particular conditions. They are not rights which are common to the whole community, it is only particular people who from time to time have an association with the land which puts them in a position to act upon the permission afforded by a planning permit.

56 In addition to providing development rights, planning permits also contain ongoing liabilities to comply with any ongoing requirements of planning permit conditions. Again, those liabilities are not common to the community as a whole, but are particular to certain persons who are from time to time associated with the relevant land.

57 As was said by the Supreme Court recently in the decision of Anderson v Stonnington City Council [2019] VSC 453 at [57]:[15]

There is good reason why the grant of a permit should give rise to a right whereas lawful but unpermitted development under a planning scheme may not. Under the PE Act, a comprehensive process is required before a permit can be granted. The process includes an application in conformity with the PE Act and regulations, the giving of notice of the application as required, consideration of any objections and input from referral authorities, leading to a decision by the responsible authority whether to grant a permit, including the conditions that are to be imposed and the plans that are to be approved.[16] It is only when this process is complete, that a permit can be granted. If there is an application to the Tribunal for review, it is only following a Tribunal decision and order that a permit can be granted by the responsible authority. [17] It is the grant of the permit which crystallises the right.

58 For all of these reasons, I do not agree with the respondent that planning permits are not 'rights' or 'privileges' which have been 'acquired' or 'accrued' under the Planning Scheme. Rather, for the reasons explained above, I have concluded that:

• the permission granted by the planning permit is a right which has been accrued or acquired under the Planning Scheme within the meaning of section 28(2)(e) of the ILA; and
• section 28(2)(e) of the ILA protects that right from the effect of Amendment C183 (and subsequent amendments which extend the duration of the interim building height controls), unless the contrary intention expressly appears.

59 This means that, subject to me also concluding that there is no intention expressly appearing to the contrary, I have found there to be 'accrued rights' which enable the permit to be acted upon, notwithstanding the prohibition now in the Planning Scheme.

Is there an intention expressly appearing which is contrary to section 28(2)(e) of the ILA?

60 The respondent says that the following paragraph contained in the schedule to the ACZ1 is an express intention that the protection usually afforded to accrued rights is not to be provided in respect of the mandatory maximum building height requirement.

A permit cannot be granted or amended to vary a mandatory maximum building height specified in the precinct provisions at Clause 5 of this Schedule.

61 All parties agreed that the above paragraph appears to be intended to respond to the head clause of the ACZ1 (clause 37.08-6) which says that:

A permit may be granted to construct a building or construct or carry out works which is not in accordance with any design and development requirement in the schedule to this zone unless the schedule to this zone specifies otherwise.

62 I agree with the parties that, despite the use of language that does not directly respond to the wording of clause 37.08-6, the above paragraph in schedule 1 of the ACZ appears to be intended to respond to the head clause and to 'specify otherwise'. I therefore find it to prevent a permit being granted for development that is not in accordance with the maximum building height requirement. I also agree with the respondent that unless it is interpreted in this way it does not have any real meaning, as there is no ability under the Planning Scheme for a permit to be granted or amended to vary a mandatory maximum building height. The maximum building height is specified by the Planning Scheme and can only be varied by amendment to the Planning Scheme itself.

63 However, I do not agree with the respondent that the above paragraph of schedule 1 of the ACZ contains an express intention that rights accrued under previously issued planning permits are not to be protected. Its reference to 'amended' may prevent a permit which authorises a development being amended so as to allow that development to be added to or extended with built form that was above the maximum building height. However, I do not find it to clearly say that a permit which already authorises development which exceeds the maximum building height cannot be amended. This is particularly so where the amendments do not alter the extent of the non-compliance with the mandatory maximum building height and the authorisation to construct a building not in accordance with that maximum building height already exists.

64 The above paragraph of schedule 1 of the ACZ is poorly drafted and I have had to interpret it broadly to give it any meaning at all. I do not think that I can extend my interpretation of the paragraph even further by reading into it an intention 'expressly appearing' which is contrary to the protections provided by section 28(2)(e) of the ILA.

65 It follows from the above that I find that there is no expressly appearing intention in the Planning Scheme which is contrary to the operation of section 28(2)(e) of the ILA.

66 The scope of the right accrued must be ascertained from the permit.[18]

67 In this case, the permit provides a degree of inbuilt flexibility as to what it authorises. In part, this arises because condition 1 of the permit does not strictly prescribe the plans which must be submitted for approval and endorsement of the responsible authority. Rather, it requires the plans submitted to be 'generally in accordance' with certain referenced plans and subject to specified modifications. In addition, condition 2 of the permit provides flexibility for the development to vary from the endorsed plans with the consent of the responsible authority.

68 Conditions such as these are commonly used in Victorian planning permits as a way of providing a degree of inbuilt flexibility as to what is permitted. This is an important feature of the planning permit system as it allows for a certain degree of change to occur to the development without a fresh or amended planning permit needing to be obtained. As planning permits are often one of the first of a number of permissions required for the development of a site, it is usual for there to be some later changes to what is sought to be developed.

69 The extent of the flexibility afforded by the conditions of the permit is to be ascertained using well-established principles, including those set out in Westpoint Corporation Pty Ltd v Moreland CC.[19]

70 Given the inbuilt flexibility I find to exist within the permit, I find that the scope of the rights which have accrued pursuant to the permit are not limited to constructing the precise development which is shown on plans currently endorsed under it. This conclusion is consistent with other decisions of the Tribunal including in Alkero Development Pty Ltd v Stonnington CC[20] and Jezmac Pty Ltd v Glen Eira CC.[21]

71 I do not agree with the suggestion of the respondent that the requirement in the conditions of the permit for Council approval or consent means that any development which is consented to or approved is outside of the rights accrued under the permit. I find it to be very clear on the face of the permit that the right granted to develop the site is a right to develop it generally, but not precisely, in accordance with particular development plans. It does not matter that the process for defining the exact limit of the extent of the development flexibility afforded by the permit involves the consent or approval of the responsible authority (or, on review, the Tribunal).

72 I also do not agree with the submissions of the applicant and the responsible authority that the scope of the rights accrued under the permit is the right to develop built form up to a maximum height of 50.07 metres, being the maximum building height of the building shown on the currently endorsed plans. While there was nothing in the Planning Scheme to prohibit such a permission being granted in 2016 (as this was before the introduction of the mandatory building height requirements), that was not the permission that is granted by the permit. The permit does not allow the development of the site with a building of any shape or scale up to a maximum building height of 50.07 metres.

73 It follows from the above that I have concluded that the scope of the right which has accrued under the permit is a right to develop the site within the parameters set out in the permit. The parameters of the permit in this instance provide a certain degree of flexibility as to what is able to be built.

74 As I have explained above, the power of the Tribunal to amend a permit under section 87A is a broad power.

75 This was confirmed by the Supreme Court in Seventh Columbo Pty Ltd v Melbourne City Council [22] in respect of a similarly worded power to amend permits provided to the Tribunal under section 87 of the P&E Act. In that case, the Supreme Court found that the power to amend a permit was not limited by provisions in subordinate instruments such as planning schemes.

76 Since Seventh Columbo was decided, the P&E Act has been amended to include section 90A. Section 90A makes it clear that when the Tribunal is deciding whether to amend a permit, it must take into account the matters set out in section 84B(2) as if the request was an application for review. The matters set out in section 84B(2) are wide-ranging and include the relevant planning scheme.

77 What this means is that in deciding whether to amend the permit in this case, one of the things the Tribunal is required to consider is the prohibition which is now in the Planning Scheme in respect of buildings with a maximum building height of more than 32 metres.

78 While rights accrued under the permit are not affected by this prohibition for the reasons I have explained above, anything outside of the scope of these rights is affected by it.

79 It follows from this that the permit can be amended, however development which is outside of the scope of the rights accrued by the permit will be affected by the maximum building height now in the Planning Scheme and is not able to be permitted.

Can the applicant rely on an accrued right (within the meaning of s 28(2)(e) of the Interpretation of Legislation Act 1984) to seek or be granted an amendment to the permit for a form of development above the mandatory height limit in sub-precinct 2C of the ACZ1, but within the height of development approved under the existing permit?

81 It follows from the reasons set out above that I find the answer to this question of law to be:

Yes, although the scope of the right accrued in this instance is not a right to develop to a numeric height but rather the right to develop what is within the parameters of the permit.

82 It also follows from the above that I find the answers to the respondent's sub-questions to be:

• Does a planning permit by its nature confer rights capable of being 'accrued' or 'acquired' by an individual?

I consider this question to be misleading in that it focuses on rights capable of being accrued or acquired by an individual. I do not find section 28(2)(e) of the ILA to only relate to rights accrued by a particular individual. Accordingly, I consider the question which falls to be determined is whether the rights arising from the permit are capable of being 'accrued' or 'acquired' within the meaning of section 28(2)(e) of the ILA. I find that rights arising from a permit issued in respect of particular land are rights which are capable of being 'accrued' or 'acquired' under the Planning Scheme within the meaning of section 28(2)(e) of the ILA.

• Does the scope of any right conferred extend to a discretionary permit amendment for a modified form of development contained within the same notional building envelope as the development approved under the existing permit?

The scope of the right conferred is to be ascertained by reference to the permit which, in this case, includes a certain degree of flexibility.

• Do the terms of the ACZ1, that a permit 'cannot be granted or amended to vary a mandatory maximum building height', constitute an express contrary indication to any presumption that the mandatory height limit will not apply to the amendment of a permit?

BASED ON THE ANSWERS TO THE QUESTIONS OF LAW, CAN WE AMEND THE PERMIT IN THIS CASE?

83 The applicant submitted that the elements of the proposed amended development that might be affected by the maximum building height (i.e. the elements of the proposal which is over 32 metres in height) are within the scope of the rights accrued under the permit on the basis that those elements are 'generally in accordance' with the plans currently endorsed under the permit.

84 We broadly agree with the applicant that the amended plans show that the parts of the development which are above 32 metres are generally within the envelope of the building shown on the endorsed plans. For this reason, we consider the amended plans to largely be within the scope of the rights accrued pursuant to the permit and therefore unaffected by the mandatory building height requirement.

85 However, we consider that there are some particular aspects of the development proposed by the amended plans which are potentially outside the scope of the rights accrued under the permit. These are the aspects of the amended proposal where there is substantial new built form that exceeds the height of the endorsed plans. These aspects are:

• The 'skywalk';
• The replacement of a rooftop garden with apartments; and
• The raising of the lower point between the two towers/increased Level 11 and 12 footprint.

86 These aspects are highlighted on the below figure extracted from the evidence report of Ms Bell in blue, orange and green respectively.

87 The applicant submitted that the above aspects of the amended development were 'generally in accordance' with the endorsed plans and on that basis could be considered to be within the scope of the rights accrued under the permit. As to what is meant by the term 'generally in accordance', the applicant referred us to Fabcot Pty Ltd v Whittlesea CC[23] which considered the same term used in the context of an assessment of whether an application was generally in accordance with an incorporated plan. In that case, the Tribunal said that it was well established that:

• General accordance is a question of fact, to be assessed on the facts and circumstances of each case.
• The less precision there is in the primary document/s, the more flexibility is given by the phrase "generally in accordance with".
• "Generally in accordance" does not require the proposed development to be identical to that described in the development plan or incorporated plan.
• It is appropriate to read the development plan or incorporated plan as a whole when making this assessment, and to have regard to the objectives, responses and plans comprising the approved plan.

88 While these principles related to understanding the meaning of the term 'generally in accordance' in the context of a plan which was incorporated into the relevant planning scheme, we agree with the applicant that they are also of general assistance in understanding the meaning of the term as used in Condition 1 of the permit.

89 The information before us does not satisfy us that the above aspects of the amended development can be considered to be within the scope of the rights accrued under the permit for the following reasons:

• The 'skywalk' is a substantial additional built form which partly fills in what was a gap between two towers. While it is set back and transparently glazed, we consider it to be a significant new element of built form. While we accept the evidence that the design and setback of the 'skywalk' still allows the two towers to be read separately to some degree, we do not consider the addition of the 'skywalk' can be regarded as being generally in accordance with a design that involved those two towers being separated by clear space.
• The filling-in of the roof garden introduces substantial additional built form at the highest point of the building. In doing so, it changes a tapering tower to a heavier built form and we consider this change to be one which is too substantial to be considered to be within the scope of the inbuilt flexibility of the permit.
• The raising of the lower point between the two towers/increased Level 11 and 12 footprint is also in our view a substantial additional built form which cannot be considered to be within the scope of the rights accrued under the permit. Level 11 of the amended proposal is at a similar height to that of Level 10 of the plans currently endorsed under the permit. The break between the two towers commences at Level 10 of the currently endorsed plans with an area of communal open space located between them. The Level 11 plans of the amended proposal fill all of this space in with dwellings, and relocates the communal open space to Level 12 which, according to the evidence of Ms Bell, raises it by up to 3.8 metres. Again, we do not consider this filling in of the space between the two towers can be regarded as being generally in accordance with a design that featured two separate towers at its upper levels.

90 Given our conclusion that these aspects of the amended proposal are outside of the scope of rights accrued under the permit, they are affected by the mandatory maximum building height requirement of the ACZ1. Furthermore, as they exceed that mandatory maximum building height, they cannot be permitted.

91 However, the applicant submitted that if we did reach this conclusion, it did not warrant refusal of the application. It suggested that instead, conditions could be imposed on the permit to require those aspects of the development plans to be removed.

92 The respondent suggested that the deletion of the 'skywalk' will result in the need for alternative access to be provided and this is a consequential change of significance. The external changes to the built form will result in the deletion of parts of the proposed built form and some internal changes to provide an alternative means of access for residents of dwellings in the eastern tower. The applicant submitted that it is able to implement those changes, including provision of alternative access to the eastern tower without any changes to the external built form.

93 We consider that such a change is readily able to be implemented with relatively minor planning consequences that are able to be assessed by Council at the time that the amended plans are submitted. As such, we consider that these changes are ones that are appropriate to require by way of permit condition.

94 It follows from the above that we have concluded that we can amend the permit. This is subject to the inclusion of permit conditions requiring the deletion of those parts of the building which exceed the maximum building height/s shown on the plans endorsed by the Council on 20 February 2018, as indicated in Figure 20 contained in the expert evidence report of Ms Bell filed with the Tribunal.

ARE THE AMENDMENTS AN ACCEPTABLE RESPONSE TO THE BUILT FORM AND STRATEGIC POLICY CONTEXT OF THE SITE?

95 The land forms part of the Moonee Ponds Major Activity Centre. The development and use of the land in the form proposed is consistent with policies within the Planning Policy Framework which encourage and facilitate higher density housing and a mix of land uses in activity centres.[24]

96 Pursuant to the ACZ1, the land is within sub-precinct 2C of the activity centre. The Table of Uses at clause 3.0 includes 'accommodation'[25] and 'dwelling' in section 1 provided they are not within specified sub-precincts (not including sub-precinct 2C) and are located above ground floor level, except for entry foyers. These conditions are met and no permit is required to use the land for a residential hotel and dwellings.

97 While 'office' is also included in section 1, the condition opposite which requires (amongst others) that the access must not be shared with a dwelling is not met. Accordingly, the use of the land for an office is subject to a permit. There is no dispute between the parties that the use of the land for a first-floor office is appropriate in the context of the site's location in a major activity centre. Being on an upper level with the ground-floor foyer shared with the other uses, it will not give rise to any unacceptable urban design outcomes, such as an inactive frontage at the pedestrian level. An office use is an appropriate use in an activity centre, where it will contribute to the generation of employment and associated benefits for the broader function and operation of the centre. No party suggested and we do not consider the sharing of access between the commercial and residential components of the building gives rise to any unacceptable town planning outcomes in this instance.

98 Policy at clauses 15.01-1S, 15.01-1R, 15.01-1L, 15.01-2S and 15.01-L seeks to achieve urban design and building design outcomes which make a positive contribution to their context. Broadly, the relevant objectives and strategies refer to:

• providing an active and attractive interface with the public realm;
• enhancing personal safety;
• maximising passive surveillance;
• improving the quality of living and working environments;
• providing landscaping that supports the amenity and attractiveness of the public realm; and
• minimising detrimental impacts on the neighbouring properties.

99 The amendments include the following changes to the approved built form:

• The replacement of the curved ground floor building profile to Mt Alexander Road with a linear profile whose alignment is parallel to the property frontage.
• The introduction of a 'porte-cochere' on the western side of the building, adjacent to the right-of-way.
• Increased setbacks from the western boundary at all levels.
• Increased setbacks from the northern boundary in the central portion of the site for levels 2 - 13. This includes the introduction of windows and balconies in the northern elevation.
• The introduction of a glazed 'skywalk' within the central gap to connect the two towers.
• Replacement of the rooftop garden on the eastern tower with dwellings.

100 We have made findings in respect of the elements, which include the 'skywalk' and dwellings on the rooftop, that exceed the height approved and are to be deleted. An assessment of the acceptability or otherwise of these elements is, therefore, not required.

101 The remaining built form changes are acceptable. While the architecture of the development has noticeably altered, it retains the overall form of a large, multi-level building with a suitably contemporary expression and will make a positive contribution to the local context and the broader activity centre. Indeed, other than submissions arguing that the extent of change constitutes a transformation, the respondent did not criticise the architecture nor was any evidence called to demonstrate that the design represents an unacceptable planning outcome.

102 The massing of the building manifests a legible base with distinct upper levels. The overall design displays an acceptable level of articulation and modulation, with a well-resolved materiality. The realignment of the façade to the Mt Alexander Road frontage is acceptable as it will provide a greater setback than currently approved, will allow space for outdoor dining to further activate this interface, and enhances the visibility of the heritage building located to the north.

103 The introduction of a 3.0 metre setback centrally along the northern side of the building assists in modulating this elevation, reducing the bulk and providing additional visual relief. Similar observations can be made of the western elevation which has had additional setbacks included.

104 Having regard to the guidance provided by the provisions of the ACZ1, we consider that:

• The development interacts well with the public realm and provides a positive experience at street level through the inclusion of active frontages and high-quality finishes. A further wind assessment will be required by a condition of permit to ensure that there are no unacceptable wind impacts.
• The main entry foyers address road frontages.
• The car parking and loading bay access is from the adjoining laneway.
• The design avoids architectural mimicry.

105 Overall, our conclusion is the amended development provides an improved built form outcome as compared to that shown on the endorsed plans. It demonstrates a suitably high level of architectural design, provides a clearly articulated and modulated built form outcome, and achieves an acceptable interface with the public realm. It will enhance the local context.

WILL THE AMENDMENTS GIVE RISE TO UNACCEPTABLE AMENITY IMPACTS?

106 We agree with the assessment contained in the evidence that, having regard to the amendments, the key amenity considerations are overlooking and the provision of equitable development opportunities for adjoining land. With respect to visual impacts, the amended design through its variable setbacks, modulation, massing and materiality will reduce the overall building bulk as it presents to adjoining land. This is particularly so for the northern elevation, where the centralised indent from the boundary recesses the built form and provides greater articulation.

107 As the overall massing of the development is not significantly dissimilar to that shown on the endorsed plans (when the 'skywalk' and the rooftop dwellings are deleted), there will not be a notable change in the extent of overshadowing.

108 Both witnesses assessed the resultant overlooking impacts of the amended proposal and made specific recommendations to address these. The impacts are in relation to both the existing apartment development to the north and any potential redevelopment of the land to the west, beyond the intervening laneway.

109 To the north, treatment is required of selected balconies and habitable room windows which allow views into existing balconies and habitable room windows of the adjoining apartment development at 689 Mt Alexander Road. While selected of these were set out in the evidence, we agree with the recommendation that a condition "requiring further details of any overlooking potential be provided with measures incorporated as necessary- these measures could include standard 1.7 metre high screening devices, directional or louvred screening, planter boxes or the like - dependent on the nature of potential viewing opportunity" is necessary. We have included a condition requiring the provision of screening and/or design treatments that limit overlooking to within the parameters of clause 55.04-6, which is used as a guide in this instance, as provided in the Council's draft permit conditions.

110 The evidence also recommends the screening of windows and balconies in the west elevation of the development that are located less than 4.5 metres from the centreline of the adjoining laneway.[26] While the evidence nominates the use of specific screening materials, including a film which would be affixed to the glazing, we consider that a condition should not be so precisely worded, to allow consideration of other screening measures. Ultimately, the screening will need to be to the Council's satisfaction.

111 Conditions to require appropriate screening measures in response to these identified impacts have been included.

112 We agree with the evidence that the increased setbacks from the western boundary, in particular, enhance equitable development opportunities for the adjoining land, and that the amendments do not otherwise compromise the development opportunities of the properties to the north when compared to the endorsed plans.

113 The draft permit conditions were discussed on a 'without prejudice' basis toward the conclusion of the hearing. We have taken the submissions made by the parties into account in determining the appropriate permit conditions to include in the amended permit as well as our findings set out above.

114 In relation to particular matters raised in respect of permit conditions, we note that:

• As confirmed by the applicant and Council, we have retained car parking reduction as a permit trigger. While the extent of the reduction is reduced by the amended proposal, there remains a reduction which requires permission. We have also included a permit trigger for office.
• We are not persuaded that the 300mm-500mm encroachments of balconies and architectural features beyond the boundary line into the road reservation add any significant degree of visual interest or articulation. Their inclusion does not manifest any discernible enhancement of the building's appearance or presentation. That said, we are cognisant of the fact that the endorsed plans show the encroachments of balconies and architectural features over the road reservation. We consider that an acceptable and fair outcome in the circumstances would be to only allow the encroachment of balconies and architectural features, but require the bedrooms to be within the title boundary. This would be consistent with the existing approval. We note that the applicant did not oppose such a requirement, and a condition to this effect was included in its set of the draft planning permit conditions.
• The respondent suggested that, depending upon the way in which we decided the question of transformation, we should consider imposing a permit condition which limited the expansion of the residential hotel at a later time. We have made a finding that the proposal is not a transformation based on the facts before us. The question of whether a different proposal with a different use mix would be a transformation is not before us and we make no findings in respect of such a proposal. Given this, we agree with the applicant that there is insufficient nexus between the proposal before us and a permit condition which would fix the extent of the residential hotel use to the current proposal.
• We have corrected numbering and drafting errors in condition 12 to ensure that the proposed loading arrangements operate appropriately.

115 For the reasons given above, the application is allowed. Planning Permit No. MV/949/2014 is amended.

[1] The submissions and evidence of the parties and any supporting documents filed with the Tribunal have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Proceeding P559/2016, an application pursuant to section 82 of the Planning and Environment Act 1987 to review the Council's decision to grant a planning permit.

[3] Mondib Group Pty Ltd v Moonee Valley CC [2020] VCAT 1031, [36]. We note that we were advised by the parties that this decision has been appealed to the Supreme Court but the appeal has not been heard.

[4] In accordance with section 107 of the Victorian Civil and Administrative Tribunal Act 1998 and noting that that questions of law are defined by section 107 to include a question of mixed law and fact.

[5] See eg Coles Property Group Developments Limited v Boroondara CC (Including Summary) (Red Dot) [2014] VCAT 342, at [56], Central Estate Properties Pty Ltd v Manningham CC (Includes Summary) (Red Dot) [2014] VCAT 343, at [20].

[6] (Red Dot) [2008] VCAT 860, at [23].

[7] (Includes Summary) (Red Dot) [2011] VCAT 520.

[8] Mondib Group Pty Ltd v Moonee Valley CC [2020] VCAT 1031, at [31].

[9] Amendment C197 (approved 27 September 2018), Amendment C208 (approved 20 September 2019), Amendment C214 (approved 24 September 2020) and Amendment C220 (approved 28 May 2021).

[10] See eg Simpson v Bass Coast SC [2007] VCAT 165, at [17]; Glenelg SC v Printz Pty Ltd (Includes Summary) (Red Dot) [2009] VCAT 2477, at [62]-[64].

[11] See eg Anderson v Stonnington City Council [2019] VSC 453, [54]-[58], Elwick 9 v Freeman [2018] VSC 234, at [89]-[104].

[12] [2007] VCAT 165, at [28]. See also Anderson v Stonnington City Council [2019] VSC 453, at [57].

[13] [1972] HCA 33; (1972) 129 CLR 270 at 293-4.

[14] [1895] UKLawRpAC 18; [1895] AC 425, at 431.

[15] I note that this decision has been the subject of appeal, but not in respect of this particular part of it and in any event, the appeals were not successful.

[18] Alkero Development Pty Ltd v Stonnington CC (Red Dot) [2018] VCAT 1120, at [44].

[19] [2005] VCAT 1049. See also Cook v Mornington Peninsula SC (Red Dot) [2017] VCAT 1129.

[20] (Red Dot) [2018] VCAT 1120, at [53].

[21] [2018] VCAT 2053, at [18].

[23] [2014] VCAT 600.

[24] Clauses 11.01-1S, 11.02-2S, 11.03-1R, 11.03-1S, 16.01-1S, 16.01-1R and 16.01-1L.

[25] Other than Camping and caravan park, Corrective institution, Dwelling, Dependent person's unit and Host farm. Pursuant to clause 73.03, a Residential hotel is included in the definition of 'Residential building', which in turn is included in the definition of 'Accommodation'.

[26] In relation to those windows and balconies positioned 4.5 metres from the centreline of the laneway, the expectation is that any balconies and habitable room windows of residential development on the land to the west would adopt a similar siting to achieve an overall separation of 9.0 metres and avoid the need for screening.