• Mr Maugan Bastone, town planner, Urbis Consultants

Ms Sivy Orr, town planner, represented Mr Stuart Marburg.

To amend the location a basement security door and air conditioning condensers, hot water services and associated screening located on the roof on a three storey apartment building.

Application under section 87A of the Planning and Environment Act 1987

Clause 32.01-4 (two or more dwellings on a lot in R1Z)

Clauses 10.04, 11.01, 13.04, 15.01, 16.01, 18.02, 21.05, 21.07, 21.12, 22.07, 52.06, 55 and 65

The review site is located on the southeast corner of Tooronga Road and Constance Street. The site is rectangular with a frontage to Tooronga Road of 17.68 metres, a sideage of 46.63 metres and an area of 2235.4 square metres.

The site is occupied by a three storey apartment building containing 33 dwellings above a basement. The building has a maximum height of 10.7 metres. The land is flat and is not constrained by any special features or encumbrances.

The site buts two properties that each contain single dwellings. Other dwellings are located on the north side of Constance Street and to the east and southeast of the site.

I inspected the site and its environs on 13 November 2013. The parties did not accompany the inspection.

Pirovich Industries Pty Ltd v Boroondara CC [22 March 2011] VCAT 746

Knox CC v Tulcany Pty Ltd & Ors (2004) 18 VPR 229

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

Marone Pty Ltd Joint Venture v Glen Eira and Ors (includes Summary) (Red Dot) [2011] VCAT 1650

1. The applicant is in dispute with five households who reside adjacent to or nearby the review site. The dispute is in relation to a request from the applicant to amend plans to relocate air conditioning condensers, solar hot water panels and associated screening installed on the roof of a three storey apartment building. The applicant also proposes to relocate a security door at the entry to the basement.
2. A permit for the development was approved by the Tribunal in March 2011 following agreement from all parties. Development plans were endorsed by Council in June 2011 and December 2011. The endorsed plans do not show the location of the basement security door.
3. The apartment building has been constructed. The air conditioning condensers, solar panels and screening have been installed in accordance with the amended plans before me rather than where shown on the endorsed plans.
4. The residents say that the as-built location of the condensers and screening increase the building's visual bulk and is likely to generate unacceptable noise emissions. They submit that the open grill security door has increased light spillage from cars leaving the basement and from the security lighting within the basement. They also submit that matters agreed at mediation should not be amended and the applicant should not be rewarded for failing to comply with the permit.
5. Council supports the proposed amendments. It submits that the changes would not adversely affect the amenity of the neighbours and do not constitute substantial changes to the approved development.
6. The applicant submits that the changes are necessary because the condensers would not be operable if placed where shown on the endorsed plans. The applicant concurs with Council that the changes would have no adverse impacts on the neighbours and are minor amendments.
7. The key issues that I must determine in this matter are:
   • What is the appropriate approach to the matters in dispute?
   • Would the proposed location of the condensers and associated screening be acceptable?
   • Would the proposed location of the security door be acceptable?
8. I must decide whether a permit should be amended and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Boroondara Planning Scheme, I have decided to amend the permit. My reasons follow.

What is the appropriate approach to the matters in dispute?

1. The residents submitted that the amendments to the plans should not be approved for two reasons that relate to the planning process. Firstly, the applicant has not sought to amend the permit prior to installation and this review has arisen in response to resident complaints. Secondly, the installed equipment does not comply with matters that were important to the residents in the mediated settlement. They say approval of the amendments would undermine the integrity of the planning process and reward poor behaviour.
2. In this review I am required to apply the relevant law and decisions of higher courts. I am also guided by relevant decisions of the Tribunal. I briefly outline their application to this review.
3. The first consideration is the approach to the fact that the condensers and screens do not comply with the permit. In Knox CC v Tulcany Pty Ltd & Ors[2] the Supreme Court noted that the unlawful completion of a development provides the opportunity for the development to be observed as part of the assessment of its planning merits. The fact that it has been constructed is to be considered neither an advantage nor a disadvantage in the assessment process. Its planning merits are to be assessed from first principles that include its response to context, impacts on neighbours and compliance with the entirety of planning policy.
4. The second consideration is the discretion available to me under s87A of the Planning and Environment Act 1987. This section provides applicants with the opportunity to amend permits. The discretion afforded to the Tribunal is very wide, as the Tribunal may amend a permit issued at its direction:

1. The Tribunal has consistently limited s87A reviews to the amendments sought. A s87A review is not an opportunity to retest the merits of the entire use or development. The amendments are to be assessed from first principles in terms of response to context, design integrity and possible impacts on affected parties. The proposed amendments have to demonstrate they are acceptable when all the matters are weighed[3].
2. The Tribunal regularly considers amendments to permits, including where an applicant seeks to amend a permit after agreement was reached in mediation. The Tribunal observed in The King David School v Stonnington City Council that amendments to permits may arise for various reasons. They may firstly arise from the need to clarify the permit's intent or ambit. Such amendments may include clarifying the permission that has been granted, tidying up conditions to resolve ambiguity or unforeseen consequences, or responding to unforeseen circumstances as the development or use proceeds. The Tribunal observed that it generally had no difficulty with the s87A process being used for clarification purposes, subject to the assessment of impacts and compliance with policy.
3. The Tribunal accepts that it can be appropriate to amend a permit under s87A to achieve substantial changes. These may arise from changes in planning policy, market conditions, new opportunities, or changes that are required by detailed design, construction or financing. The Tribunal recognises that larger developments may take several years to complete and conditions and circumstances may change over time. There may be legitimate reasons to amend a permit that were not reasonably foreseen at the time the application was determined by the Tribunal.
4. The above amendments are to be distinguished from those that are sought shortly after the permit is granted. An example may be applying for additional floor space that was deleted in mediation. The Tribunal has indicated that it would be cautious to support proposed changes that seem directed to seeking a more favourable outcome than was contemplated in the Tribunal's decision that led to the grant of a permit.
5. The Tribunal also indicated that it would be concerned with applications under s87A that are effectively repeat appeals in which an applicant sought to replicate submissions for a use or development that were previously rejected. There needs to be finality and certainty to planning approval reviews and decisions.
6. In general, the Tribunal has observed that the flexibility provided by the wide discretion under s87A should not be used to undermine the intent of the original decision unless there is a sound reason for so doing. The Tribunal is to approach s87A reviews with caution, particularly if substantial changes are sought. I agree with residents that it is important to retain confidence in the integrity of the planning process and its decisions.
7. In general I am satisfied that this application is an appropriate use of the discretion provided by s87A. For reasons outlined below, I consider that the application responds to technical problems that were unforeseen in March 2011.
8. Secondly I accept the submissions from the applicant that this is the first time the merits of the development have been before the Tribunal. Hence I am satisfied that this is not a repeat appeal that aims to win back development rights conceded in mediation or rejected by the Tribunal.
9. I consider the application before me is an appropriate use of the flexibility provided by this provision in the Planning and Environment Act 1987 and I am not persuaded that consideration of the amendments would be contrary to the intent of the provision or undermine the integrity of planning.
10. The residents submitted that I should give considerable weight to their proposition that the location of the condensers was a critical matter in the successful mediation in 2011. S92 of the Victorian Civil and Administrative Tribunal Act 1998 provides that:

Evidence of anything said or done in the course of mediation is not admissible in any hearing before the tribunal in the proceeding, unless all parties agree to the giving of the evidence.

1. The applicant refused their approval to refer to discussions in the mediation in 2011. Hence I could not hear submissions regarding the matters that may have been determinative in the agreement. I adopt the approach that only the fact that agreement was reached and the development was deemed to be acceptable by the Tribunal is relevant to this proceeding.
2. I have considered whether the planning process has disadvantaged the residents and Council. They have been notified of the proposed amendments and have had the opportunity to lodge statements of grounds, make submissions and test Mr Bastone's evidence. Their involvement has been no different than if the applicant had sought permission for the changes under s72 of the Planning and Environment Act 1987. I am satisfied that they have not been disadvantaged in this review.
3. In light of the above guidance, I have to assess whether the amendments before me are acceptable within the framework provided by the Boroondara Planning Scheme.
4. I turn below to the planning merits of the application.

Would the proposed location of the condenser units and associated screening be acceptable?

1. The endorsed plans show 25 air conditioning condensers located within two rooftop "wells", each comprising a void enclosed on all sides by sloped metal battens. The wells would be located on the west side of the roof close to Tooronga Road. The condensers would be entirely obscured by the battens and so would not be visible.
2. The amendment before me and the constructed condensers comprise 33 condensers in two rows, located on the east side of the roof above each of the two wings of the building. The condensers would be screened behind slat timber screens to a height of 0.6 metre.
3. The solar panels for the hot water services have been relocated to the west side of the roof of the northern wing roof. A screen with a height of 0.66 metre comprising timber slats would be constructed to the north of the panels.
4. The permit applicant submitted written advice from Hyder Consulting who provide project management and mechanical services. Hyder Consulting advise that the endorsed plans were prepared without input from mechanical engineers. Hyder Consulting were engaged in late March 2011 to provide these services. They advised the applicant that the condensers would not operate within the wells. In particular Hyder Consulting advise[4] that the condensers should be relocated as:
   1. The location within the wells would not comply with the condenser manufacturer guidelines.
   2. There would be insufficient air flow between the condensers.
   3. The units would be too close together and would void warranties.
   4. Access for maintenance would be problematic.
   5. The open air installation is superior to well-type locations with regard to noise attenuation.
5. The permit applicant says that the condensers have been located to ensure their proper operation and maintenance and to minimise their visibility. The Council considers their location to be acceptable.
6. The residents consider that the condensers add to the visual bulk of the development from both the public realm and the secluded open space and habitable rooms of adjoining and nearby dwellings. They say the condensers are likely to generate excessive noise.

1. Mr Bastone considered that whilst visible, the screening above the two storey walls adds minimal visual bulk. He considered that the screening does not detract from the integrity of the building's design and it is a minor element in the scale, massing and bulk of the building. He considered the screening would have no adverse impacts on the public realm or the amenity of the neighbours.
2. With regard to visual bulk, I am guided by the following relevant planning policies.
   • Clause 15.01 - Design is to respond to context and comprise high quality architecture.
   • Clauses 21.05, 21.07 and 22.07 - Development is to respond to the prevailing neighbourhood character.
   • Clause 55.02-1 - Design to be responsive to context and neighbourhood character.
   • Clause 55.04-1 - Side and rear setbacks to respond to neighbourhood character and not impose adverse amenity impacts.
   • Clause 55.06-4 - Site services be accessible, adequate and attractive.
3. The screens are clearly visible from the public realm and from some of the secluded open space areas, principally from the southeast. However I am not persuaded that they are so visually intrusive or out of place in this context that they are unacceptable.
4. Firstly, the screens comprise a maximum height of 0.66 metre atop a wall that is approximately 7 metres in height. They are set back behind the parapet (and comply with standard B17 of clause 55), and comprise dark colours and materials commonly found in the locality. I consider them to be very diminutive elements.
5. Furthermore, they comfortably fit above a built form that already has extensive articulation and variance. There is variance in its horizontal and vertical planes, in its materials and in the balconies and screening. The screens above the roof add small and discrete elements to an already visually complex building. I consider that they add rather than detract to the building's integrity and design quality. The landscaping in the street, in the private gardens and the additional landscaping installed as part of this project add to their recessive and diminutive form.
6. I consider that they are diminutive and recessive elements that are peripheral to most observers. In my view they do not cause adverse impacts through visual bulk.
7. Planning policy requires that such equipment be located where it can be easily installed and maintained. It would be contrary to policy, and I think unreasonable, to require the equipment to be installed where technical engineering advice says it cannot operate or be maintained properly. I give weight to the advice from Hyder Consulting in the absence of contrary advice.
8. I am satisfied that the condensers, solar panels and associated screens are acceptable.

1. The residents submit that the location of the condensers would create noise levels that would adversely affect the amenity of their habitable rooms and secluded open space.
2. Clause 13.04 provides that community amenity is not reduced by noise emissions, and building design techniques should be used to achieve appropriate outcomes.
3. Clause 55.04-8 - Noise from services, includes the following objectives:

To contain noise sources in developments that may affect existing dwellings.

1. The objectives may be met by meeting the following standards:

Noise sources, such as mechanical plant, should not be located near bedrooms of immediately adjacent existing dwellings.

Noise sensitive rooms and secluded private open spaces of new dwellings and residential buildings should take account of noise sources on immediately adjacent properties.

1. The condensers on the north wing are located approximately 9 metres from the east boundary. The condensers on the south wing are located approximately 6 metres from the east boundary. The habitable rooms of the adjoining dwellings are well set back from the western boundaries.
2. The noise emissions of the condensers was assessed by Renzo Tonin and Associates in July 2013. Their report was tabled at the hearing by the responsible authority.
3. The condensers were tested in heating mode, that mode generating more noise than the cooling mode. They estimated emissions of 40dBA at the west rear boundary of Nos. 4 and 6 Henham Street, 36dBA at the west boundary of 4 Constance Street and 35dBA at Nos.1 and 3 Constance Street.
4. The allowable noise limits at the adjoining and nearby dwellings is 45dBA in the evening and 41dBA at night-time. The acoustic report concluded that the noise emissions would comply with SEPP N-1 noise limits if applicable, noting that this limit does not apply to domestic heating and cooling equipment. In the absence of evidence that the equipment would be excessively noisy, I give weight to this report.
5. I am satisfied that the equipment is unlikely to generate unacceptable noise emissions.

Would the proposed location of the security door be acceptable?

1. Vehicles access the basement via a ramp from Constance Street. A transparent metal security door has been installed at the bottom of the ramp, before the driveway turns into the basement. It is visible from Constance Street.
2. The respondents submitted that the security door to the basement was intended to be located within the basement, where the accessway turned into the basement. They expected that the security door would not be visible from Constance Street and it would be a solid door.
3. The respondents say that the security door's location and materials require vehicles leaving the apartment building to wait at the bottom of the ramp. Headlights from the vehicles could project across the road into the habitable rooms at the front of the dwelling at No.1 Constance Street. Ms Orr also submitted that the transparent security screen enables light spillage to the detriment of residents on the north side of Constance Street.
4. I note that the plans approved by Council do not show a security door to the basement.
5. I am satisfied that the location and form of the security basement door are acceptable.
6. Firstly, the applicant submitted that the security door cannot be located within the basement as structural engineers advise that the necessary clearance cannot be provided when the door is raised. There seems little point requiring the door to be installed where it cannot operate.
7. Secondly, I am not persuaded that the location of the security door makes any difference to the light from vehicle headlights that may be visible in the dwellings opposite. The security door is operated by a remote control and vehicles do not need to stop for an extended time at the door. Hence the duration of the illumination from the vehicle headlights would not be increased by the as-built position of the security door. I also consider that most of the headlight illumination from vehicles would be directed onto the side wall of the ramp rather than into the windows opposite.
8. In my view any illumination from vehicles leaving the basement would be mainly visible when vehicles approach street level. The location of the security door has no bearing on the illumination from vehicles when they are at the top of the ramp.
9. Ms Orr submitted that the metal grill form of the security door allows more light spillage from the basement than a solid door expected by residents. I do not consider that the illumination from the basement would adversely affect the amenity of neighbours opposite. Constance Street is illuminated by public lighting, and the dwellings would also receive some lighting from Tooronga Road. The basement is below street level and only the upper one metre is visible at street level. Furthermore, the front habitable rooms of the dwelling on the north side of Constance Street are in the order of 35 metres from the basement entry. The vegetation in Constance Street and in the front gardens of the dwellings opposite would diminish the lighting. I am not persuaded that lighting from the basement would materially affect the residents of the dwellings opposite.
10. However, I concur with the permit applicant that the extent of light spillage can be reduced. This can be achieved by painting the side walls of the basement ramp a dark grey. Installing a solid bulkhead above the security door would also reduce the light spillage. This can be required by amending condition 1.
11. I concur with Mr Bastone that the location of the basement security door is acceptable. It would not be a prominent feature as it is below street level and it is a dark colour. It contributes to public safety as it prevents people standing at the basement entry, unseen from the street. It also prevents vehicles unable to access the basement from having to make difficult manoeuvres to reverse up the access ramp. An open grill allows ventilation into the basement to disperse vehicle emissions.
12. I am satisfied that the security door as installed is acceptable, however light spillage can be minimised by the application of dark coloured paint and the installation of a solid bulkhead above the door.
13. The approved plans require a convex mirror to be provided on the east side of the driveway, adjacent to the east boundary. Dr Betheras submitted that convex mirrors should be provided on both sides of the accessway at Constance Street to ensure that drivers can easily see pedestrians, particularly school children walking westward.
14. I am not persuaded a mirror on the west side of the driveway, adjacent to the footpath is necessary. Vehicles leaving the site are on the left (west) side of the driveway and leaving in a forward direction. Drivers have acceptable sightlines to their right, across the entry side of the driveway and across low rise landscaping. They have better sightlines than are available from many of the domestic driveways in Constance Street. I consider that motorists leaving the site and pedestrians walking westward along Constance Street would have acceptable views of each other.

DO ANY OTHER MATTERS WARRANT REJECTION OF THE PROPOSAL?

1. Ms Orr acting for Mr Marburg sought unspecified costs against the applicant. The costs were generally for the time and expenses incurred in preparing submissions and representation at the Tribunal.
2. Guidance regarding disputes over costs is provided by s109 of the Victorian Civil and Administrative Tribunal Act 1998. Section 109(1) provides that each party is to bear their own costs in a proceeding. Section 109(3) provides that costs may be awarded against a party if the Tribunal is satisfied that a party has conducted the proceedings in a way that unnecessarily disadvantaged another party.
3. Ms Orr did not specify any conduct by the applicant that has disadvantaged her client, or specify the costs sought. I have no basis to conclude that the applicant has not sought adjournments, failed to comply with orders of the Tribunal, attempted to deceive the Tribunal or other parties, or unreasonably delayed the proceedings. I am satisfied that the residents have had a fair opportunity to make submissions about the amendments. I am not persuaded that Mr Marburg has suffered any disadvantage arising from the conduct of the applicant in these proceedings.
4. I find there is no case to order costs against the applicant.

1. It follows from the above reasons that it is my conclusion that Permit PP10/00333 should be amended.
2. The amended permit will include conditions that have regard to the submissions and evidence of the parties and the matters that arise from my reasons.
3. No orders are made as to costs.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[3] Clause 65 of the Boroondara Planning Scheme

[4] Letter from Hyder Consulting to Pirovich Constructions dated 9 October 2013 tabled by Council