Consideration of the evolution of the third Westpoint Criteria in the cases:

Appeal No.1992/21753, Kitsone PL v Doncaster and Templestowe CC;

155 Domain Road Pty Ltd v Melbourne City Council [2005] VCAT 637;

Westpoint Corporation Pty Ltd v Moreland CC [2005] VCAT 1049;

Zuzek v Boroondara CC [2007] VCAT 2174.

1. Having considered the evolution and application of the third Westpoint Criteria I consider that the Westpoint criteria could be usefully clarified by very minor changes to the criteria themselves and by setting out considerations which are important to the application of the criteria. Therefore the Westpoint criteria could be restated and expanded as follows

When deciding whether a use or development may be altered under a secondary consent provision in a permit, the scale of the change is not relevant per se. The change need not simply be "minor" to be allowable under a secondary consent provision provided it meets the following criteria:

1. It does not result in a transformation of the proposal.
2. It does not authorise something for which primary consent is required under the planning scheme.
3. It is of no material consequence having regard to the purpose of the planning control under which the permit was granted.
4. It is not contrary to a specific requirement as distinct from an authorisation within the permit, which itself cannot be altered by consent.

considerations relevant to the application of these criteria are:

1. When an amendment is relevant to the purpose of the planning control the determination of whether or not it is of material consequence for the purpose of control is a matter for objective judgement.
2. The likely impact or detriment of a particular amendment must be considered vis-a-vis the permission already granted and not by comparison to the no permit scenario.
3. The question of whether or not an amendment may affect the interests of a third party is important because it may indicate that a more formal approval process for the proposed amendment is required, nevertheless, the responsible authority is obliged to objectively determine this question having regard to the Westpoint criteria and the considerations i and ii above.

Application under section 149 of the Planning and Environment Act 1987 to review a decision to refuse consent. Evolution of the third Westpoint Criteria. Considerations relevant to the application of the third Westpoint Criteria

Oz Property Group (Flemington) Pty Ltd v Moonee Valley CC (Includes Summary) (Red Dot) [2014] VCAT 397

1. By consent, the application is amended to include an application for review, pursuant to section 149(1)(d) of the Planning and Environment Act 1987, of the responsible authority's failure to decide whether to endorse plans lodged under conditions 1, 2 and 3 of Permit NO MV/19743/2008.
2. By consent, the application pursuant to section 149(1)(d) is allowed.
3. The application for review pursuant to section 149(1)(d), of the responsible authority's refusal to grant secondary consent to modify the development under condition 37 of the permit, is allowed.
4. The proceeding is adjourned to 29 April 2014 for an administrative mention.
5. By 29 April 2014, the parties are to agree upon and file with the Tribunal a form of order specifying by reference to title, revision number and date, which plans are to be endorsed pursuant to orders 2 and 3 above.

Ms Emily Porter of counsel, instructed by Clamenz Evans Ellis.

• Mr Tim Biles, Urban Design;
• Mr Stuart McGurn, Town Planning;
• Mr S Hunt, Traffic Engineering.

1. In 2010 a tribunal comprising myself and Member Katherine Paterson directed the grant of a permit for the construction of a 21 level building for 219 dwellings, 92 serviced apartments, 6 home offices, a convenience shop, café and restaurant on the site of the former Racecourse Hotel at the western end of the Flemington Major Activity Centre[1]. In 2013 the applicant applied for councils consent to amendments to the endorsed plans pursuant to condition 37 of the permit. Significantly the application sought to:
   • increase the number of dwellings from 219 to 300 dwellings, an increase of 81, dwellings;
   • decrease the number of serviced apartments from 92 to 81 serviced apartments a decrease of 11 serviced apartments, and;
   • increase the number of car spaces provided from 379 to 427 car spaces by the addition of another basement level.
2. Council decided to refuse on the following grounds:.
   1. The proposed amendments further intensifies development on the site by introducing 81 additional residential apartments with associated impacts in terms of car parking, traffic, pedestrian movement and community infrastructure.
   2. The scale of the development is inappropriate for the site and its context and the reduced setback for further overwhelm the streetscape.
   3. The substantial increase in dwellings will result in additional traffic and pedestrian movements at an already compromised location.
3. The decision of the tribunal most referred to in the discussion of secondary consent applications is the Westpoint[2] decision. The Westpoint decision sets out criteria or guidelines for the assessment of secondary consent applications, i.e.:
   1. In summary, when deciding whether a use or development may be altered under a secondary consent provision in a permit, the scale of the change is not relevant per se. The change need not simply be "minor" to be allowable under a secondary consent provision provided it meets the following requirements:
      • It does not result in a transformation of the proposal.
      • It does not authorise something for which primary consent is required under the planning scheme.
      • It is of no consequence having regard to the purpose of the planning control under which the permit was granted.
      • It is not contrary to a specific requirement as distinct from an authorisation within the permit, which itself cannot be altered by consent.

It is the third dot point of the Westpoint criteria which is relevant in this case, the others not being in contention.

1. Having considered all the submissions and evidence, for the reasons set out below, I concluded that:
   1. the Westpoint criteria remain the important basis for the consideration of applications for secondary consent, and;
   2. the amendments proposed in this case should be approved by secondary consent.
2. Moreover, as a result of my consideration of the submissions in respect of the proper application of the Westpoint criteria and the various decisions of the tribunal relied on I formed the opinion that the Westpoint criteria could be usefully clarified by very minor changes to the criteria themselves and by setting out considerations which are important to the application of the criteria. Therefore the Westpoint criteria could be restated and expanded as follows

When deciding whether a use or development may be altered under a secondary consent provision in a permit, the scale of the change is not relevant per se. The change need not simply be "minor" to be allowable under a secondary consent provision provided it meets the following criteria:

1. It does not result in a transformation of the proposal.
2. It does not authorise something for which primary consent is required under the planning scheme.
3. It is of no material consequence having regard to the purpose of the planning control under which the permit was granted.
4. It is not contrary to a specific requirement as distinct from an authorisation within the permit, which itself cannot be altered by consent.

considerations relevant to the application of these criteria are:

1. When an amendment is relevant to the purpose of the planning control the determination of whether or not it is of material consequence for the purpose of control is a matter for objective judgement.
2. The likely impact or detriment of a particular amendment must be considered vis-a-vis the permission already granted and not by comparison to the no permit scenario.
3. The question of whether or not an amendment may affect the interests of a third party is important because it may indicate that a more formal approval process for the proposed amendment is required, nevertheless, the responsible authority is obliged to objectively determine this question having regard to the Westpoint criteria and the considerations i and ii above.

1. The subject land is a triangular lot located at the intersection of Ascot Vale Road and Epsom Road in Flemington. The land is occupied by the now derelict Racecourse Hotel. The Land has frontages of 100 metres and 106 metres street to Epsom and Ascot Vale Roads respectively and an area of approximately 3700 square metres.
2. The land is 4 kilometres from the Melbourne CAD and is within the western periphery of the Racecourse Road strip shopping centre, a major activity centre. The land is well served by public transport, Newmarket Railway Station is 700 metres to the east, the Route 57 Tram passes the land on Racecourse Road and Epsom Road and there are several bus routes along Ascot Vale Road.
3. The surrounding area has a very mixed character
   • To the north of the land is a small public housing estate fronting Epsom Road and commercial properties fronting Ascot Vale Road.
   • To the east across Ascot Vale Road are commercial premises and dwellings[4] fronting Ascot Vale Road.
   • To the south across is public open space within the City of Melbourne.
   • To the west across Epsom Road is Flemington Racecourse with the Showgrounds precinct further to the north on the west side of Epsom Road.

The Moonee Ponds Principal Activity Centre is 2.3 km to the north of the site along Ascot Vale Road. This is the primary activity centre for the City of Moonee Valley and offers a range of commercial and retail services.

1. The land is within a Residential 1 Zone. To the north of the site (along Ascot Vale Road) is a Mixed Use Zone. A mixture of commercial zones (Business 1 and 2) extend along the northern side of Racecourse Road. Racecourse, Epsom and Ascot Vale Roads are in the Road Zone Category 1. There are no overlays affecting the Land.

1. The Subject Land is in an elevated position with contours falling steeply to the west beyond Epsom Road then more gently across the racecourse proper to the Maribyrnong River.
2. Existing commercial and residential development within the immediate environs of the land tend to be of modest scale, one to two storeys in height. A significant departure from this norm is Crown Tower a 13 level public housing building about 80 metres east and north east of the land.
3. The subject land and much of the surrounding land is an area in transition, which is anticipated to undergo significant redevelopment in the future in accordance with activity centre policy under the planning scheme.

1. As already described the significant amendments proposed are to:
   • increase the number of dwellings from 219 to 300 dwellings, an increase of 81, dwellings;
   • decrease the number of serviced apartments from 92 to 81 serviced apartments a decrease of 11 serviced apartments, and;
   • increase the number of car spaces provided from 379 to 427 car spaces by the addition of another basement level.

These changes are to be achieved with relatively minor, albeit contentious, changes to the external fabric of the building above ground level.

1. Appendix A contains a series of images from either the architects plans or Mr Biles statement of evidence which illustrate the changes proposed to the architecture of the building, an important consideration in this case because of the size of the building and the importance that architectural quality played in the original decision.

1. The history of the evolution of the tribunal's approach to secondary consent is of interest in this application. In my experience the debate commenced with a 1992 decision of Member Gibson (as she was then) in Kitsone Pty Ltd[5]. The principal finding of this decision was that a secondary consent could not be used to transform the primary permission.
2. In 1996 the tribunal in Abacus Design[6] relied on Kitsone Pty Ltd to reach a conclusion that seeking an amendment to development already (even fully) authorised under a permit is to be properly construed as proposing a new form of development on the land and the need for a planning permit cannot be avoided by applying for secondary consent . The tribunal in Abacus Design recognised the radical nature of this conclusion but considered that this logically flowed from the decision of the tribunal in Kitsone Pty Ltd.
3. The decision of the tribunal in Abacus Design was a subject of contention in the application Mentone Mansions[7]. The tribunal[8] in Mentone Mansions reached a different conclusion to that of the tribunal in Abacus Design, i.e.:
   1. The most common informal consent condition is a condition which provides that the endorsed plans of a permit can only be amended with the consent of the Responsible Authority. Often these conditions are expressed in the negative providing that the endorsed plans cannot be amended other than with the consent of the Responsible Authority. A condition of this type would have appeared on most permits issued since the inception of the planning system. The practice and the law which developed around the imposition of these conditions was that the conditions were only for minor amendments. But minor amendments were not seen as amendments which were trivial in an absolute sense, rather minor amendments were seen to be amendments which were trivial in the context of the purposes of the control which led to the granting of the permit. If the particular planning control was concerned about car parking, or heritage, or amenity, then the question of whether or not a particular amendment was minor is decided by turning one's mind to the issue of whether or not in a particular case the amendment had an effect on car parking, or on heritage, or on amenity. For example in the old Restrictive Business zone where a permit was required for development under clause 22 of the then MMPS, the relevant issues under that control were primarily access and car parking. In that context a complete replanning of the internal layout of a proposed building could be regarded as a minor amendment if it did not adversely impinge on any of these issues.

1. The primary analysis of the Abacus decision is correct. It is its failure to give sufficient weight to the variation which will inevitably exist in the real world between what can and is constructed and what was approved by the primary planning permission. Such variations may be on one hand minor, that is trivial or inconsequential having regard to the purpose of the planning control, or on the other hand may require a new primary consent because they are transforming, or consequential having regard to the purpose of the planning control.
2. In the case of permitted development there is a continuum in the possibility of variation:

(b) Trivial variation (de minimus, in an absolute sense);

(c) Inconsequential variation ( de minimus in a contextual sense);

1. The tension created by giving insufficient weight to this continuum is in effect recognised in the Abacus decision itself, where it seeks to compromise its main propositions in respect of:
   • unresolved developments,
   • use permissions, and
   • deferred approval of aspects of the permitted development,

preserving the role of informal consents in these circumstances.

1. It is considered lawful for a Responsible Authority to amend a development which already has primary permission, relying on an informal consent, provided that the amended development is not a transformation of the development originally approved, and the amendments are inconsequential having regard to the purpose of the planning controls which lead to the need for the primary permission.
2. The Mentone Mansions case was concerned with a large number of relatively minor amendments to a fairly low density townhouse development. Even the amendments which were more than trivial were nevertheless quite minor.
3. The decision of the tribunal in Westpoint was notable not only because it synthesised the decisions of the tribunal in Kitsone Pty Ltd[9], Mentone Mansions[10] and 155 Domain Road Proprietary Limited[11] into a useful set of criteria for applications for secondary consent it applied them to a very substantial mixed use development and a proposal to amend to the permitted development by increasing the number of dwellings proposed from 181 to 237 dwellings largely within the already permitted building envelope. The tribunal in Westpoint decided that notwithstanding the fact that the proposed amendments were of consequence in an absolute sense they were not of consequence having regard to the purpose of the planning control under which the permit was granted.
4. Notwithstanding the apparent simplicity of the Westpoint criteria they continue to lead to substantial debate in applications to this tribunal, more particularly in relation to the third criterion. A very useful commentary on Westpoint is found in the decision of Deputy President Dwyer in in Zuzek[12]:
   1. It can be seen that the third criterion in Westpoint is clearly not directed to consequence or no consequence in an absolute sense but, as the criterion itself states, whether the change is "of no consequence having regard to the purpose of the planning control under which the permit was granted". It can equally be seen that, just because a proposed change is relevant to the purpose of the planning control - for example, arising under a decision guideline - that does not of itself automatically rule out use of the secondary consent process. It is a matter of objective judgment as to whether the change is not material or of 'no consequence' having regard to that control, or whether it is of sufficient consequence to warrant a more formal process that potentially introduces third party participation. Again, the physical scale of the change is not necessarily conclusive of what is or is not 'of consequence', nor is the fact that there may have been an earlier objector who may simply not like the change. A proper consideration or judgement may involve an objective consideration of possible impact or detriment arising from the change, or the extent to which the change will be perceived, or other relevant factors. Moreover, in considering possible impact or detriment, the change must be considered vis-à-vis the permission already granted and the existing plans, rather than by comparison to the 'no permit' scenario. The secondary consent process does not provide a mechanism to re-open more broadly based issues relating to the primary consent given,
5. The decision of the tribunal in Zuzek very usefully emphasises considerations which were of importance to the tribunals in Mentone Mansions and Westpoint but are not necessarily understood by consideration of the Westpoint criteria in isolation. I think that these considerations are
   1. When an amendment is relevant to the purpose of the planning control the determination of whether or not it is of consequence for the purpose of control is a matter for objective judgement[13].
   2. The consideration of the likely impacts or detriment of a particular amendment must be considered vis-a-vis the permission already granted and not by comparison to the no permit scenario[14].
   3. The question of whether or not an amendment may affect the interests of a third party is important because it may indicate that a more formal approval process for the proposed amendment is required nevertheless the responsible authority is obliged to objectively determine this question[15] having regard to the Westpoint criteria and the considerations i and ii above[16].

However, Deputy President Dwyer was perhaps was most helpful when he used the phrase, not material, as an alternative to of no consequence.

1. When we[17] I decided Mentone Mansions foreshadowing what was to become the third Westpoint Criteria we thought we had based our decision on a conceptually simple idea. In our view there was a continuum of possible amendments to development ranging from no change to transformation and that within this continuum there was a range of possible amendments capable of consideration under a secondary consent provision. We understood that decision-making might be difficult when the amendments proposed sit close to the boundary between those amendments capable of approval by secondary consent and those that require a more formal approval process, nevertheless, the extent of ongoing argument has been surprising.
2. Perhaps the answer to this problem is our decision to use the word consequence or inconsequential in our description of our preferred approach to the issue of a secondary consent, with this word choice continuing on into the Westpoint criteria. The Macquarie dictionary defines the word consequence as follows:

1 the act or fact following an effect or result upon something antecedent. 2 that which so follows; and effect or a result. 3 in consequence as a result. 4 the conclusion of an argument or inference. 5 importance or significance: a matter of no consequence. 6 importance in rank or position; distinction

1. In our mind inconsequential was similar in meaning to unimportant or insignificant, that is the Macquarie definition 5 above. However the primary meaning of consequence is any effect or result of, in our case, an amendment to a development without any qualification on the basis of importance or significance. This lack of clarity allows an argument that if a particular amendment is relevant to the planning control it must be of consequence and therefore ineligible for consideration by a secondary consent an outcome which is inconsistent with the actual decisions of the tribunal in both Mentone Mansions and Westpoint.
2. Deputy President Dwyer use of the phrase not material usefully clarifies the actual intention of the tribunal in both Mentone Mansions and Westpoint. Material is one of those words in English which have a very large number of meanings, the fourteenth definition of the word in Macquarie dictionary is:.

14. Law. (of evidence, et cetera) likely to influence the determination of a cause.

1. It is likely that this is the meaning intended by Deputy President Dwyer. In the case of secondary consent this means that an amendment is of no consequence if it is unlikely to influence a primary permission having regard to the purposes of the planning control and the already permitted development.

1. Having considered all these cases I consider the Westpoint criteria remain the important basis for the consideration of applications for secondary consent. However I do consider that the Westpoint criteria could be usefully clarified by very minor changes to the criteria themselves and by setting out considerations which are important to the application of the criteria. Therefore the Westpoint criteria could be restated and expanded as follows
2. When deciding whether a use or development may be altered under a secondary consent provision in a permit, the scale of the change is not relevant per se. The change need not simply be "minor" to be allowable under a secondary consent provision provided it meets the following criteria:
   1. It does not result in a transformation of the proposal.
   2. It does not authorise something for which primary consent is required under the planning scheme.
   3. It is of no material consequence having regard to the purpose of the planning control under which the permit was granted.
   4. It is not contrary to a specific requirement as distinct from an authorisation within the permit, which itself cannot be altered by consent.

considerations relevant to the application of these criteria are:

1. When an amendment is relevant to the purpose of the planning control the determination of whether or not it is of material consequence for the purpose of control is a matter for objective judgement.
2. The likely impact or detriment of a particular amendment must be considered vis-a-vis the permission already granted and not by comparison to the no permit scenario.
3. The question of whether or not an amendment may affect the interests of a third party is important because it may indicate that a more formal approval process for the proposed amendment is required, nevertheless, the responsible authority is obliged to objectively determine this question having regard to the Westpoint criteria and the considerations i and ii above.

1. There are two strands to Ms Lane's submissions on behalf of Council that the application should not succeed. Firstly, she argued that core amendments, that is the increase in the number of apartments and the variation of building setbacks, are not of no consequence by reference to the evolution of the planning policy framework and since the initial decision. Secondly, she argues that several of the proposed amendments were not of no consequence because of their actual impacts.
2. I consider that the first of Ms Lane's argument must fail because it does not consider the proposed amendments vis-a-vis the permission already granted.
3. The evolution in planning policy most particularly relied on included the incorporation of the Housing Strategy 2010 within the planning scheme, the new neighbourhood character provisions and the changes in policy emphasis which are emerging through the review of the MSS embodied in the related amendment C194 which has been referred to a panel for the consideration of submissions. The weakness in this overall argument is best illustrated by a discussion of the argument in respect of the Housing Strategy.
4. It is said that the proposal as amended results in a residential density defined in the housing strategy as 'is high - substantial housing intensification and that it would be inconsistent with the locational principles set out in table 3.1 of the strategy. Even if I agreed that changing circumstances since the decision such as the abandonment of the structure plan does mean that the proposal as amended would be inconsistent with the locational principles this is not a consequence of the proposed amendment but of the original permission[18]. The tribunal directed the grant of a permit for a very substantial high residential density development in 2010 the proposed amendments that change the number and mix of dwellings within the development and include relatively minor variations to the building envelope do not in any material way consequential vis-a-vis the housing strategy.
5. The same analysis holds true for the debates in respect of the neighbourhood character provisions and the seriously entertained changes to the MSS. The proposed amendments do not have any impact on the relationship of the permitted building to its neighbourhood nor do they have any material consequence in respect of the foreshadowed changes to the MSS brought to my attention by Ms Lane.
6. In relation to the potential impacts of the proposed amendments make the following observations:
   • In a substantial building such as this the quality of the architecture is a very important issue. The proposed changes to the articulation, massing and appearance of the building are in general quite minor. However the architecture of the northern facade has been significantly simplified although the basic approach to articulation of this facade has been retained (refer appendix A). This is an example of an amendment which could derail an application for a secondary consent in respect of the building such as this. However, while the loss of the quirky irregularity of the original design is regrettable the overall quality of the architecture is not substantially diminished. I consider that the changes to the exterior appearance of the building and its architectural quality are of no material consequence.
   • Pedestrian access to the interior of the building at ground and lower ground levels has been amended as have the dimensions of the lift lobbies and hallways throughout the building. While it would always be desirable to provide more generous pedestrian access larger lift lobbies and shorter hallways in my opinion the amendments don't result in an unacceptable outcome. I consider that the changes to pedestrian access arrangements within the building are of no material consequence.
   • The proposed changes to the mix of dwellings within the development will result in a greater population density than the mix of dwellings originally approved, although the increase in the population will be less than the proportional change in number of dwellings because of the generally lower occupancy rate of the smaller apartments. This proposed change will result in an increase in the number of traffic and pedestrian movements within the surrounding street network. I am satisfied on the basis of Mr Hunt's evidence that these changes are unlikely to be perceptible. I consider that the impacts which flow from the likely increase in population which would result from the proposed amendments will be of no material consequence.

1. It follows from the above reasons that my primary school conclusion is that the amendments proposed by the applicant should appropriately be approved by a secondary consent and my orders will foreshadow this conclusion.
2. Prior to the hearing Ms Lane highlighted her concern that the application before the tribunal relates solely to the contentious issue of the proposed amendments to the endorsed development plans and the connection of the development plans to other plans to be endorsed under the permit conditions such as the ESD plan. These other plans are not contentious but have not been endorsed by Council and arguably should all be endorsed concurrently because of the way in which the plans are interlinked within the permit conditions..
3. I wish to commend Ms Lane and Ms Porter for their helpful and collaborative approach to disposing of this peripheral technicality. By the end of the hearing they had agreed on a form of resolution to dispose of the issue in the event that the tribunal decided to allow the application for review.

Figure 4 - Amendments to Building Envelope Floors 4 to 16

Figure 5 - Amendments to Building Envelope Floors 17 to 21

[1] Flemington Development Pty Ltd v Moonee Valley CC [2010] VCAT 1760

[2] Westpoint Corporation Pty Ltd v Moreland CC [2005] VCAT 1049

[3] Taken from the tribunals reasons in Flemington Development Pty Ltd v Moonee Valley CC [2010] VCAT 1760.

[4] The dwelling commence at 10 Ascot Vale Road.

[5] Appeal No.1992/21753 Kitsone PL v Doncaster and Templestowe CC

[6] Appeal No. 1996/44441, Abacus Design v Yarra CC

[7] Mentone Mansions PL v Kingston CC [2000] 1947

[8] The tribunal in Mentone Mansions comprised Members Liston and Rickards (as we were then).

[9] Appeal No.1992/21753 Kitsone PL v Doncaster and Templestowe CC.

[10] Mentone Mansions PL v Kingston CC [2000] 1947.

[11] 155 Domain Road Pty Ltd v Melbourne City Council [2005] VCAT 637

[12] Zuzek v Boroondara CC [2007] VCAT 2174

[13] Zuzek v Boroondara CC (Red Dot) [2007] VCAT 2174 para 11.

[14] Zuzek v Boroondara CC (Red Dot) [2007] VCAT 2174, para 11.

[15] In Zuzek the contentious issue was a 400 mm increase in the height of the proposed dwelling and it was known that the adjoining neighbour opposed this change, nevertheless, deputy President Dwyer approved the amendment by secondary consent having regard to the setback in excess of ResCode standards and the contextual relationship between the proposed dwelling and the adjoining dwelling.

[16] Zuzek v Boroondara CC (Red Dot) [2007] VCAT 2174, para 40.

[17] The tribunal in Mentone Mansions comprised Members Liston and Rickards (as we were then).

[18] In fact I do not agree that a balanced consideration of the locational principles for high residential density set out in table 3.1 of the housing strategy would in fact lead to a conclusion that the subject land is unsuited to a high residential development having regard to the existing physical and strategic contexts of the subject land.: