a Retention of the existing external fabric of the stable building at the rear and deletion of the proposed first floor studio and replacement with a lesser studio level within the existing envelope, including the internal reconfiguration, relocation of stair case and the deletion of first floor east facing balcony (amendments marked on plans A, B, C, D & G);

b Inclusion of front door within the front façade of the dwelling (amendment marked E);

c Setback of the robe associated with bedroom 2 (western most, first floor bedroom) by 1m adjacent to neighbours light court (amendment marked F);

d Reduce height of north section of level 3 to match adjacent dwelling to north (amendment marked H);

e Reduced setback of the second floor southern elevation to 1490mm (amendment marked I);

f Increased setback of the proposed second floor addition 4.98m from the front faced to allow views to the adjacent dwelling (amendment marked K);

All generally in accordance with amended plans submitted to council on 28 August 2003. In addition the following further modifications shall also be shown:

g The base of the proposed timber south boundary elevation must be modified to include vertical corrugated iron to replicate a traditional fence This is required to be constructed to the height of the existing fence;

h Proposed garage door to be modified to replicate the existing stable doors;

i All roofed areas are to be noted as non-trafficable;

j Proposed west facing first floor bedroom window (shown on elevation B) must be screened or elevated to satisfy the requirements contained within Standard A15 of Clause 54 of the Yarra Planning Scheme (Rescode), to the satisfaction of the responsible authority;

k A schedule of all external materials and finishes shall be submitted to the satisfaction of the responsible authority. The schedule shall show the materials, colour and finish of all external walls, roof, fascias, window frames, glazing types, doors, fences, paving (including car park surfacing), outbuildings and structures. (All materials must be of a light and non-reflective finish)

All development and use must accord with the endorsed plans. Any alterations must be approved by the Responsible Authority.

7 The site is located on the north west corner of Canning Street and Fenwick Street, Carlton North. It is in a Heritage Overlay but the existing building has no heritage significance that is reflected in the schedule to the overlay or any heritage studies. The main building comprised a former shop/commercial building built to the boundary with a window and entry fronting Canning Street. It was of painted brick. At the rear, abutting Fenwick Street and the rear laneway, is a former stable building which was used as a garage/studio. In the planning permit application assessment the Council's heritage adviser suggested that the rear stable building may have some heritage significance but conceded that the main building was of no significance.

8 Nevertheless, the proposal which was applied for proposed to retain the perimeter walls of the main building and construct a 3 storey building within those walls but set back progressively on both street frontages. The stable building walls were proposed to be retained and would form part of an enlarged garage/studio building.

9 The proposal was advertised and one objection was received which was later withdrawn. The Council required a number of alterations to be made to the plans during the process of considering the application and further changes were required as part of Condition 1 of the permit. The Council endorsed plans in accordance with Condition 1 on 3 December 2003. They included the following note:

Note: Whilst every endeavour will be made to maintain existing walls, if it is found that conditions are unstable or unsafe they will be demolished and rebuilt to existing height.

10 What has happened is that the walls were indeed found to be unstable and incapable of bearing loads. All the walls of the existing main building were demolished and replaced by tilt concrete slab walls. Some parts of the walls of the stable building were also demolished. This demolition occurred in accordance with a building permit issued by a private building surveyor. The surveyor had previously referred the issue of a building permit to Yarra Building Services for consent (being demolition, as required by section 29A of the Building Act 1993). Council issued a `Form B' response to the referral under section 29A of the Building Act 1993 giving consent to demolition as follows:

A planning permit is required for the demolition of the building detailed above and planning permit No PL03/0589 has been granted for this demolition. Consent to the proposed demolition is given. All works must be in accordance with the planning permit.

11 In addition to the demolition, which Council says is not authorised by the planning permit, a substantial number of departures from the endorsed plans are also evident in the building as constructed to date. Work orders have been issued.

12 The Council's building services unit prepared and provided to the applicant a comprehensive list of areas of non-compliance between the partially `as constructed building' and the endorsed plans under the planning permit. This list of some 72 changes has formed the basis of the request for amendment of the endorsed plans. The changes primarily affect the following aspects of the development:

* Stables - changes to openings; demolition of part of original wall (not visible from the street).

* The fencing on Fenwick Street - changes in material and design.

* Canning Street façade - changes to design, fenestration and articulation of front façade.

* Front door - changes to design and location of front door; now a false door providing no means of access.

* Windows - changes to size and shape of various windows.

* Separation/setback at upper level - the 1 metre setback of the upper level adjacent to the property on the northern boundary has been removed.

* Overall height - the height of various elements of the development have changed; the overall height of the development is increased by 400mm.

* Footprint - the footprint of the studio has increased; there are minor increases to the footprint of the ground, first and second stories of the main building which reduce the overall articulation of the building.

* Demolition of original walls of main building - the Canning Street and Fenwick Street walls of the main building, which were to have been retained, have been demolished and replaced by tilt concrete slab walls.

13 I have considered the evidence and submissions and have had the benefit of a detailed inspection of the subject site, which was the location of the first part of the hearing when the Tribunal and parties were able to inspect the relevant plans and relate them to what has been constructed. In my view the issues arising in this application are as follows:

* Can consent be granted for the changes under the power relied upon, namely the secondary consent provision contained in Condition 2 of the permit?

* Was the demolition of the main building authorised?

* Was the inclusion of the note on the endorsed plans relating to demolition authorised and is this a valid note?

14 I will deal first with the demolition of the main building and the validity of the note on the endorsed plans because this affects other issues.

15 It is common ground that none of the plans considered by the responsible authority leading up to the grant of the permit contained the note which is now relied upon by the applicant. This note was included on the plans endorsed by the Council. Evidence was given by Ms Liz Brown, who was the officer assessing the plans submitted for endorsement and who ultimately endorsed them, that the note was not drawn to her attention: she did not notice it and she would not have endorsed the plans with such a note had she been aware of it.

16 I do not doubt the evidence of Ms Brown. The question is whether, as the applicant submits, the Council is estopped from denying the validity of the note.

17 I was referred to a number of cases which have considered the issue of estoppel in the context of the exercise by the responsible authority of its powers under the Planning and Environment Act. The decisions include VBI Properties Pty Ltd & Others v Port Phillip City Council [2000] VCAT 885 and Meaden v Yarra City Council [2002] VCAT 304.

18 I have had regard to these cases and the authorities quoted within them. In general terms, the authorities have:

"... within certain limits, recognised that a Council or some other public authority may, in appropriate circumstances, be estopped from denying representations made by an officer of the authority, or from denying the validity of a decision made or communicated by such an officer, about a planning consent, permission, or approval, which an applicant for that consent, permission, or approval, has acted on to his detriment."[1]

19 In Jurkovic v City of Port Adelaide (from which the above quotation is taken), the Supreme Court of South Australia (Wells J) usefully set out the following principals derived from the authorities applicable to estoppel.

1. The general rule stated above must be the predominant guide, and any apparent exception must acknowledge the overriding importance attached by the courts to the due performance of a public duty, and to the unhindered and bona fide exercise of a discretion with respect to matters of public concern, where the duty is imposed, or the discretion is conferred, by law.

2. Where a proper application for consent, permission, or approval, or for some other decision, is made to a Council, or other public authority, upon a matter of public concern governed by public law, the authority may be estopped from denying a representation or statement as to what the decision is or was, made by one of its officers to the applicant where:

(a) the authority had previously established a practice of lawfully delegating to the officer concerned, or to offices of the same status and responsibility, the power to make decisions with respect to the subject-matter of the applications, and to communicate those decisions of persons concerned, and the officer in question acted - although mistakenly - in the course, and within the scope, of his ostensible authority; or

(b) an officer or officers of the authority in arriving at the decision, or in making a representation or statement as to what the decision is or was, acted in breach of the authority's domestic or internal procedures, but in what the officer or officers conveyed to the applicant, there was nothing to suggest that there had been an infringement of those procedures, and the officer or officers, in making the representation or statement, was or were acting - although irregularly - in the course, and within the scope, of his or their ostensible authority.

3. The question whether, for the purposes of rule 2 above, there has been a proper application, whether there has been a sufficiently well-established practice of delegation, and whether the procedures, allegedly infringed, were domestic or internal, are questions of fact to be decided having regard to all the circumstances of the case.

4. The above stated rules must yield to any contrary intention expressed or necessarily implied in the legislation governing the case under consideration.[2]

20 Applying these principals to the current situation, this is a case where the Council's delegate had a discretion to endorse amended plans pursuant to condition 1. She exercised that discretion in a certain way. It was not a way which was beyond her power. She was discharging her power on behalf of the responsible authority according to law. It is now said that she made an error in endorsing the plans with the note regarding demolition. I find that whether that error was an oversight or whether it was an error of judgment is immaterial. The consequence of her exercise of discretion was to make a representation to the applicant that existing walls could be demolished if it was found that their condition was unstable or unsafe and if those walls demolished were rebuilt to the existing height. Relying upon that representation, the applicant obtained a demolition permit from the building surveyor, which was consented to by Council acting as responsible authority, and proceeded to demolish the existing walls pursuant to the endorsed plans and building permit.

21 In these circumstances, I find that the responsible authority is estopped from altering or withdrawing its consent to the development being undertaken in accordance with the plans endorsed by its delegate on 3 December 2003, and this includes demolishing the walls in question.

22 I therefore decline to make the declaration regarding the validity of the note on the endorsed plans which is sought by the Council.

23 Although I have found that the note on the endorsed plans was `valid', what does the note mean? I do not consider that the note can authorise something different to the primary consent granted by the permit itself. However the note does not purport to do this. The note is not couched in permissive terms, rather it is a statement of intent - if the walls are found to be unstable or unsafe they will be demolished and rebuilt to existing height. (My emphasis)

24 This note does not authorise the permanent demolition and removal of existing walls, it simply contemplates the rebuilding of walls that are found to be unstable or unsafe. Where the applicant has erred is that she has demolished those walls and not rebuilt them. Instead she has replaced them with another type of wall altogether. Therefore, although I find that it was within the power of the applicant to demolish the walls in reliance upon the note on the endorsed plans, I also find she was not authorised to fail to rebuild them to existing height and instead to replace them by something else.

25 The applicant required a permit pursuant to the Residential 1 Zone provisions (clause 32.01-3) for extension of a dwelling on lot less than 300m2 and pursuant to the Heritage Overlay (clause 43.01-1) to demolish a building, construct a building and externally alter a building.

26 I consider that what was applied for and what the permit was granted for is adequately described in the permit itself, namely:

"Alterations and additions to the existing dwelling and rear garage/studio (including partial demolition and the construction of a first floor and second floor addition)."

27 The reference to partial demolition in the words of the permit and the notations on the endorsed plans in various locations to "existing brick work to be made good", "existing brick work to boundary to be maintained" and "existing brick work to boundary", make it quite clear that the permit did not allow or contemplate demolition of the existing external walls shown thus on the endorsed plans.

28 The alterations and additions allowed by the permit were subject to conditions, including eleven specified changes to the application plans set out in condition 1.

All development and use must accord with the endorsed plans. Any alterations must be approved by the responsible authority.

The applicant relies upon this condition to authorise the changes to the endorsed plans. The question is whether the changes which she now seeks can be made pursuant to this secondary consent provision.

30 The ambit of operation of secondary consents within planning permits was considered by the Administrative Appeals Tribunal in Kitsone Pty Ltd v City of Doncaster and Templestowe (Appeal 1992/31062) which established two propositions:

* One cannot use a secondary consent mechanism to gain primary planning permission. In other words, if a primary consent is one which is required by a planning scheme, it can only be obtained by making an application for a planning permit pursuant to section 47 of the Planning and Environment Act. A condition in a planning permit requiring something not to be done "without the further consent of the responsible authority" cannot operate to transform what would be a primary consent required by the planning scheme into a second consent required under a planning permit.

* A secondary consent cannot be used to transform the permit for which application was originally made as distinct from only modifying it (see Addicoat v Fox (No 2) [1979] VicRp 37; [1979] VR 347.

31 The case of Mentone Mansions Pty Ltd v Kingston City Council [2000] VCAT 1947 expanded upon the principals set out in Kitsone and considered further the type of variations which could be made pursuant to a secondary consent provision in a planning permit. Mentone Mansions recognised a continuum in the possibility of variations to permits for development:

b trivial variation (de minimus, in absolute sense);

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

32 The Tribunal in Mentone Mansions recognised the legitimate role of secondary consents in the practical administration of planning permits within a restricted ambit of the continuum of variation. It said:

20. 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.

33 I find that the demolition of the existing building, requires primary permission under the Heritage Overlay. The permit does not allow this demolition and consequently the applicant cannot rely on a secondary or informal consent by the responsible authority (or on review by this Tribunal) to grant this permission. Therefore I find that I cannot authorise the demolition of the existing building pursuant to this application for review of a secondary consent under a condition in the permit.

34 With respect to the other changes, the Council agrees that some are trivial and some are inconsequential having regard to the purpose of the planning control. However, there are a number of changes which it regards as both consequential and transforming. I agree.

35 A number of the changes are a consequence of the demolition of the existing building and the resultant change to the facades of the building. Whilst many of the other changes might, in themselves, be regarded as inconsequential variations, cumulatively I consider they result in a significantly different development to that which was approved. Taking into consideration the purpose of the planning controls which lead to the need for a permit, especially the Heritage Overlay, I do not consider this is a development that would have been approved at first instance by the responsible authority (or, on review, by this Tribunal). Taken together, the changes result in a development which is less well proportioned and more bulky than that which was approved. This development turns its back on the street. It presents as an urban fortress in a heritage streetscape where other buildings actively address the street.

36 Looking at the changes to the plans, the envelope on the building appears to have been pushed outwards from the inside. Many of the original setbacks, indentations and articulations have been lost resulting in an increased appearance of external bulk. The loss of the 1 metre setback at the upper level from the property on the northern boundary is important. The set back created a sense of respectful separation from the adjoining building when viewed from Canning Street and the articulation it created in the upper level reduced its boxiness.

37 The proposal which was embodied in the original endorsed plans was for a new building to be set within the shell of an old building. This is the way in which the development would have been read within the streetscape. The three storey nature of the building was partially disguised by the parapet of the existing building. With removal of the parapet from the design, the building will appear as three boxes stacked one on top of the other. The proportional weight previously provided by the front façade of the existing building is now lost. Changes to the design and location of the front door ignore the significance and role of entrances in the street and the sense of address they provide. These changes adversely affect the balance and proportions of the front façade.

38 The changes to the Fenwick Street façade and `fence' have lost the intricacy and detail of the endorsed plans, which were a contemporary response to the intricacy and detail found in other built form nearby.

39 In overall terms, I consider that the cumulative effect of the changes will adversely affect the character and appearance of the streetscape, protection of which is one of the important purposes of both the zone and overlay controls.

40 In addition, a number of changes to the application plans required by condition 1, which were included on the endorsed plans, have now also been lost and the changes, if approved, would result in an inconsistency between the endorsed plans and condition 1 of the permit. I consider this to be unacceptable for two reasons.

41 First, the requirements set out in condition 1 were changes to the original design which the Council required as a condition of granting the permit and were a response to the purpose of the planning controls and their decision guidelines. Had the applicant opposed the required changes, she could have appealed against them. She did not do so. I therefore do not consider it is open to me to find that the amendments now sought, which effectively negate or delete the conditions of the permit, can be regarded as inconsequential variations in a contextual sense.

42 Second, I do not consider that more can be done under a secondary consent provision within a permit than can otherwise be done under the Act. In this respect, I note that section 62(3) of the Act, which enables the responsible authority to approve an amendment to any plans approved under a permit, only applies if the amendment is consistent with the permit (see section 62(3)(a)(ii)). This requirement of consistency with the permit would not be met if I was to approve changes to the endorsed plans which are contrary to the requirements of condition 1. I consider these changes could only be made if there was a concurrent amendment of the permit under section 73 (which I doubt is applicable) or section 87 of the Act.

43 My overall conclusions are therefore that I should not consent to the changes to the endorsed plans which are sought by the applicant because:

* Permanent demolition of the existing building requires primary consent under the heritage overlay in the planning scheme.

* The cumulative effect of the changes result in either a transforming variation of the proposal or at least a variation that is consequential to the purpose of the planning controls which led to the need for the permit.

* Some of the changes go beyond what would be allowable under section 62(3) of the Act and would necessitate an amendment to the permit (condition 1). They would have the effect of making the endorsed plans inconsistent with the conditions of the permit.

44 It was put to me on behalf of the applicant that if I considered changes should be made to the design in order to make it acceptable, I should make such changes. I disagree.

45 The present outcome appears to be a result of a series of incremental changes made without proper regard to their overall effect. Some of the changes in design (for example, the asymmetrical windows in the Fenwick Street façade) have since been modified to bring the development more in line with the original concept. In doing so, the integrity and proportions of the overall development and its relationship to the streetscape have been compromised. Attention is now required to finalising the design so that it properly acknowledges its context within the streetscape. I consider this can be done without conceding that it is an unapologetic contemporary infill development. Demolition of the development or setbacks from the street are not required. Rather resolution is required of the building's relationship with the adjoining property, the way it addresses the street, and attention to the scale and proportions of the facades and fenestration.

46 I acknowledge that demolition of the existing building means that the original design concept of a new building sitting within the shell of an old building cannot now be achieved. I do not consider that anything would be served by now requiring reproduction of the shell of the old building, especially in light of Council's statements that the original building had no heritage significance. However, I consider that the responsible authority should be given the opportunity to consider the implications of a permit for such demolition within the framework of the decision guidelines set out in the Heritage Overlay and local planning policy, and should be enabled to consider the overall effect of changes to the development.

47 A number of issues were raised by local residents who were parties to this application. Some are not relevant such as overlooking, which I do not consider will occur or be an issue especially given the design and balconies fronting the street of many existing buildings. I am satisfied that their concerns about the unauthorised changes will be addressed by enabling the Council to properly address the changes. The residents need to recognise however that there is a valid permit in existence. This will not alter. Therefore any changes to the design cannot be expected to result in a totally different building.

48 I am conscious that refusal of this application will mean delay for the applicant but I do not consider that this can or should override a proper exercise of my discretion. Quite simply, the extent of the changes which are reflected in the construction of the building and for which authorisation is now sought by way of amendment to the endorsed plans goes beyond what can be authorised under the secondary consent the provision of condition 2 of the permit. The applicant should make a new permit application to the responsible authority. The Council indicated at the hearing that it would do everything possible to expedite its consideration of such an application. In many respects the applicant has only herself to blame for the predicament she now finds herself in. There were lengthy detailed negotiations between applicant, her representative and the Council prior to the issue of the permit, which resulted in a number of modifications to the design along the way and modifications being required by the permit conditions. It is not appropriate for applicants to depart so markedly from the plans endorsed under a planning permit and then to expect a retrospective consent to those departures. The ambit within which secondary consents can operated is articulated in the Mentone Mansions case and this case falls outside them. When a secondary consent cannot operate to authorise amendments to plans or the permit an amendment must be applied for in accordance with the relevant provisions of the Planning and Environment Act or else a new permit must be applied for. In the circumstances of this particular case, to consider the correct approach is to apply for a new planning permit.

49 For these reasons I affirm the decision of the responsible authority to refuse consent to the changes to the endorsed plans.

[1] Jurkovic v City of Port Adelaide (1979) 41 LGRA 71, at page 78

[2] Jurkovic v City of Port Adelaide (1979) 41 LGRA 71, at page 79