Silberscher v Stonnington CC [2015] VCAT 1204

1. Pursuant to section 60 of the Victorian Civil and Administrative Act 1998, the following person is joined as a party to the proceeding:

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit amendment application is amended as follows:
   • For all the plans in the permit amendment application, substitute:
     • The plans prepared by Jackson Clements Burrows Architects drawing nos:

TP0-100 Revision C 1 June 2015

TP0-101 Revision A 8 August 2014

TP0-201 Revision A 8 August 2014

TP0-202 Revision B 1 June 2015

TP0-301 Revision B 1 May 2015

TP1-101 Revision F 1 June 2015

TP1-102 Revision H 1 June 2015

TP1-103 Revision D 1 June 2015

TP1-104 Revision E 1 June 2015

TP1-105 Revision F 1 June 2015

TP2-101 Revision E 26 February 2015

TP2-102 Revision E 1 June 2015

TP3-101 Revision D 1 June 2015

TP3-102 Revision F 1 June 2015

TP10-101 Revision B 1 June 2015

TP10-102 Revision B 1 June 2015

TP10-103 Revision B 1 June 2015

TP10-201 Revision B 1 June 2015

TP10-202 May 2015

• The plans prepared by Jack Merlo Design Landscape & Construction drawing nos:

1. The decision of the Responsible Authority is set aside.
2. In permit amendment application no. 0255/09-1 an amendment to permit no. 0255/09 is granted and directed to be issued for the land at 67 Elizabeth Street, Malvern. The amendments to the permit are set out in Appendix A.

Mr Chris Townshend QC and Mr Paul Connor of Counsel, instructed by Moray & Agnew Lawyers

• Mr Stuart McGurn, town planner, Environmental Resources Management Australia Pty Ltd
• Mr Jack Merlo, landscape architect, Jack Merlo Design
• Ms Samantha Slicer, architectural visualiser, Flood Slicer Pty Ltd
• Mr Christopher Butler, traffic engineer, Cardno Victoria Pty Ltd

For Adrian & Janet Schirrman, Patrick & Fiona Darrigan, James & Lois Keipert, Peter & Judy Prassen, Rosie & Dov Potaznik, John & Margaret Hocking

Fourteen apartments in a three-storey building plus basement

Application under section 77 of the Planning and Environment Act 1987 to review the Council's refusal to amend a permit

General Residential Zone Schedule 10 (GRZ10) (Garden River & Garden Suburban Precincts)

Clause 32.08-4 (construction of two or more dwellings on a lot in GRZ10)

Clauses 9, 10, 11, 15, 16, 21.02, 21.03, 21.05, 21.06, 32.08, 52.06, 55 & 65

The land is on the west side of Elizabeth Street, about 150 m south of its intersection with Toorak Road and about 200 m southwest of the intersection of Toorak Road and the Monash Freeway. It has a frontage of about 36 m, a depth of about 49 m and an area of about 1,760 sq m. The land is occupied by a large two-storey dwelling, a tennis court and a swimming pool. The land is relatively flat, falling about 70 cm across the frontage towards Toorak Road.

Austcom Pty Ltd v Buckerfield Pty Ltd [1999] VSC 23

Callea Property Developments Pty Ltd v Wyndham CC [2014] VCAT 466

Fosters Group Pty Ltd v Mornington Peninsula SC [2010] VCAT 104

Popular Pastimes Pty Ltd v Melbourne CC [2008] VCAT 1184

Coles Property Group Developments Ltd v Boroondara CC [2014] VCAT 342

Bestway Group Pty Ltd v Monash CC [2008] VCAT 860

Union Street Apartments Pty Ltd v Stonnington CC [2015] VCAT 96

1. The Council issued permit no. 0255/09 on 11 May 2010 under the Stonnington Planning Scheme (the scheme) to construct seven apartments in a three-storey building plus basement (the permit) on the subject land. The permit remains in force.[2] The development has not started.
2. The Council endorsed plans under the permit on 6 July 2015 (the endorsed plans). The seven apartments shown on these plans are large. Apartments 1 to 6 on the ground and first floors have floor areas greater than 260 sq m and the penthouse on the second floor (which has additional living areas in the basement) has a floor area of about 575 sq m.[3]
3. In August 2014, the Applicant applied to amend the permit. The amendments were included in revised drawings attached to the application. One of them was to divide, in effect, each apartment into two to create seven additional apartments and a total of fourteen apartments.
4. The Council's officers recommended the application be approved and the permit be amended. The Council decided to refuse the application. The Applicant has now applied to the Tribunal to review the Council's decision. The Respondents are residents living near the subject land and oppose the amendment of the permit.
5. At the start of the hearing, I gave the Applicant leave to amend the application by substituting the drawings. These drawings, in a general sense, incorporated further amendments that were recommended in the Council officer's report. They retain the concept of dividing each apartment into two apartments to create seven additional apartments.
6. I have decided the amendments would result in an acceptable planning outcome and the permit should be amended. My reasons follow.

1. It is well-established authority that, in an application to amend a permit, a decision-maker must confine its considerations to the proposed amendments to the permit.[4] Put another way, the decision-maker must focus only on the proposed differences to the permitted use or development. What has been permitted and is not proposed to be changed is not open for reconsideration.
2. The Council, in deciding the application, and many of the self-represented Respondents, in their submissions, gave insufficient attention to this principle. Many of the Respondents incorrectly focused their concerns on the apartment building as proposed to be amended, rather than the changes to the apartment building.
3. Under the permit, there are two wings of the apartment building above the basement. The northern wing contains two apartments (at the ground and first floors) and a roof terrace for the penthouse. The southern wing contains four apartments (two at both the ground and first floors) and the penthouse on the second floor. The gap between the northern wing and southern wing (that the architects for the Applicant referred to as the 'ravine') is 4.8 m wide and joined by an enclosed walkway at the ground and first floor levels.
4. I will not recite all the amendments. The main ones may be summarised as follows:
   • Number of apartments: The number is increased by seven (to fourteen) by dividing each of the seven apartments in two. There are consequential changes to internal layout of apartments and rooms, with changes to window and terrace locations.
   • Basement envelope: There is an additional setback of about 550 mm to the western boundary adjoining the Robert Menzies reserve; small sections of additions and deletions to the northern boundary and no change to the southern and eastern boundaries. There is no change to watertank location. The result is the basement site coverage is reduced from 77.8% to 77.6%.
   • Basement layout: There is no change to ramp location; the deletion of one lift and stairwell; the deletion of penthouse living rooms; and an increase in number of car spaces from 23 to 32, including an increase in visitor car spaces from 1 to 2. Additional stores are included for the additional apartments.
   • Ravine: The separation distance between the north and south wings is narrowed by 300 mm to 4.5 m.
   • Building envelopes: There is no material change to the three dimensional envelopes for the northern and southern wings, except for the narrowing of the ravine and small increase in west facing apartments at second floor in southern wing within the endorsed plan wing walls.
   • Building height: There is no change to the maximum height of northern and southern wings (ie they remain at RL39.65 and RL40.25, respectively) and there is no change to first floor parapet height of both wings (ie they remain at RL37.95). Put another way, the maximum height stays at 10.28 m, measured from the north-east corner of the second floor rooftop studios.
   • North wing roof terrace: The pool is removed and the covered outdoor area is now fully enclosed and divided into two studios.
   • Link between wings: The glazed enclosed link between ground and first floors of wings is narrowed in width from 12 m to 5 m and is removed at ground level. The ravine is now visually permeable from Elizabeth Street to the rear boundary (and Robert Menzies reserve).
   • Entry location: There is no effective change for ground floor apartments. There is a second lift in the link between wings removed so that entry to first floor apartments in northern wing is via lift in southern link and the link. There is a small change in the location of southern wing lift and a consequential change to the lift overrun location.
   • Operable window shutters: The shutters to the ground and first floor east and west-facing habitable rooms and loggias are lengthened and are slightly more expressed from the façade.
   • Materials and colours: The green glazed brick in the north and south-facing façade to the ravine (ie internal to the development) is replaced with warm grey brick.
5. The Council's officers concluded that no change is proposed to the 'approved height, bulk or architectural character of the development'. I agree with that conclusion.

1. The maximum building height under the endorsed plans is 10.28 m. The maximum building height under the amendments is the same.
2. The subject land was included in the GRZ on 19 June 2014 ie after the Council issued and extended the permit. Under GRZ10, there is a mandatory maximum building height of 9 m.[5]
3. The Respondents submitted the permit cannot be amended to authorise a building that exceeds a height of 9 m but conceded 'this issue has yet to be tested properly'. No authority was relied on in support of these submissions. The Council did not support these submissions. It was correct to do so. The permit authorises construction of a building with a height above 9 m and the permit is an accrued right.[6] As well, there is ample authority for the principle that a permit may be amended even if a new permit could not be granted for some aspect of the amendments.[7]
4. The amendment is therefore not barred by the building height control in GRZ10.
5. I also adopt and apply the principle that if endorsed plans under a permit are contrary to subsequent amendments to the scheme and if proposed changes to the permit (including the endorsed plans) do not alter this, there is less reason to reject those changes.[8]

1. If a proposed amendment to a permit transforms the permit into a different permit when viewed broadly and fairly, the amendment must not be granted and a new permit must be granted.[9]
2. The Council submitted the amendments would be a transformation of the permit because, in summary, a doubling in the number of dwellings is a significant intensification of the use, the amendments are extensive in number and changes to the building envelope are significant. The Respondents adopted these submissions and particularly emphasised the doubling in the number of apartments would not pass the colloquial 'pub test' for being a 'completely different' permit.
3. I must apply the legal test of a transformation and not a 'pub test'.
4. Without discussing all the authorities on transformation, it suffices to state that changes can be substantial without being a transformation. They include not only changes to the endorsed plans but changes (consequential or otherwise on the plans) to what the permit allows, the land description and the conditions.[10] The statute recognises persons may be affected by changes and extends normal notice requirements to an application to amend.
5. First, the raw number of individual amendments is not part of the test. A detailed catalogue of each individual amendment may be voluminous but if the outcome remains substantially the same as the permit, there is no transformation. Here, the development remains a three-storey apartment building with a very similar built form.
6. Second, the changes to the building envelope are insignificant viewed broadly and fairly. There are only two changes to the envelope that are material. The first change is the greater setback of the basement from the Robert Menzies reserve boundary. There is no discernible impact of this change, other than a beneficial one to increasing the unaffected area of the tree protection zone for a mature lemon scented gum in the reserve and to increasing the in-ground planting area for the apartments along this boundary. The second change is the 150 mm additional width in both the north and south wings of the building and consequential narrowing of the ravine by 300 mm. I accept the opinion of Mr McGurn that the ordinary person in the street change will not appreciate this change.[11]
7. This leaves whether the additional seven apartments (being a doubling of the number of apartments) is a transformation of the permit.
8. The reference to 'seven dwellings' in what the permit currently allows is not determinative. That is an issue of form rather than substance because it begs the question of whether a change to eight, fourteen or twenty-four apartments might be a transformation. The substance of the amendments, principally as shown in the amended plans, must be assessed.
9. The increase in the number of apartments does not transform the permit because the increase is effectively contained within the existing building envelope. The ResCode objectives and the parking requirements for the additional apartments are met. There are no unreasonable traffic impacts of the additional apartments, as I find later in these reasons.
10. When the permit was issued, the use of the land for seven apartments (indeed, any number of apartments) was permitted. It remains the case, despite the introduction of the GRZ, that the use of land for seven additional apartments (indeed, any number of additional apartments) is permitted. The GRZ, unlike some other residential zones, does not restrict the number of dwellings on a lot. The additional apartments may be an intensification of the use but the use is permitted and thus the intensification cannot amount to a transformation.
11. A useful guide to what is a transformation is whether the amendments are totally unrelated to the permit and would require completely new conditions.[12] Looking at the matter fairly and broadly, the permit will retain significant elements of its content and simply adds to, expands or alters what has been permitted.
12. The Respondents relied on Union Street Apartments.[13] In that case, the Tribunal considered an application to amend a permit to, among other things, increase the number of apartments from 11 to 12. The Tribunal observed that, in the context of The King David School decision, the application was 'sailing close to the wind' but the increase in the number of dwellings was a modification and not a transformation.[14] I detect the Tribunal's first observation relates to the fact the additional dwelling increased the building envelope by an additional storey. There is no similar building envelope change in this application.
13. The Respondents relied on representations by the Applicant's husband before the permit was issued that the Applicant would not make further changes and would occupy the penthouse apartment in the building. They submitted the amendments are a transformation because the Applicant has resiled from those representations. These representations are not relevant to whether the amendments would transform the permit.

1. It is relevant to consider how the amendments respond to State and local planning policy.
2. These policies support the amendments for the reasons outlined in summary form by Mr McGurn.[15]
3. The GRZ has different purposes from those of the relevant zone when the Council issued the permit, but the amendments meet the GRZ purposes for housing diversity and moderate housing growth in locations with good access to services and transport.
4. The GRZ also encourages respect for neighbourhood character. The amendments are so limited in a built form sense that there is no material impact on existing character. The GRZ also encourages implementation of character policy and guidelines. The Council's character policy, that is included in proposed Amendment C175 to the scheme, places the land in a Garden Suburban 3 Precinct (the precinct). The amendment has been adopted and is a seriously entertained planning proposal.
5. Ms Sharp tendered various documents relating to the policy and the Amendment, but nothing has shaken me from the conclusion that the amendments do no violence to the policy. This is because the amendments do not result in any domination of the street, do amount to high quality and contemporary detailing, and do maintain adequate spacing and quality landscaping around buildings.
6. The Respondents submitted the amendments set a bad precedent because it would support approvals for similar developments in Elizabeth Street and fundamentally change the character of the street. Precedent carries little weight in planning proceedings. The Council needs to assess each application having regard to its individual merits and the controls and policies in the scheme at the relevant time. Subject to an appropriate design response and other relevant factors, the scheme now appears to support land in GRZ10 and the precinct being developed for moderate housing growth in buildings of up to three storeys. If this is the preferred character, there is likely to be some change to the existing character in Elizabeth Street.

1. Elizabeth Street extends from Toorak Road to Malvern Road and carries local traffic and some traffic avoiding the main road network. During the 1980s, the then Council installed treatments designed to calm traffic. The existing crossover to the land, that will used and be slightly widened for the basement entry ramp, is located close to the south of one of those treatments.
2. Mr Butler's opinion is that the amendments will result in five additional vehicle movements in or out of the basement car park during both the AM and PM peak, being part of an additional 49 vehicles movements each day. This opinion was not seriously challenged and I accept it.
3. The statutory requirement is 14 resident car spaces and 2 visitor car spaces. The provision of 30 resident car spaces and 2 visitor car spaces in the basement meets the statutory requirement. No reduction is needed. The Respondents' concerns about reduced availability of on-street parking cannot therefore be accepted, especially given the generous supply for residents.
4. The Respondents submitted it is already difficult for local traffic to exit the neighbourhood into Toorak Road and the additional traffic will make matters worse. I do not disagree there are already difficulties. Mr Butler's opinion is that, in the AM and PM peak hour, the amendments will result in up to seven additional vehicles exiting the basement and neighbourhood. Given these relatively few vehicles and the choice of main road access points (ie to Glenferrie Road, Malvern Road and Tooronga Road), the impact on the Toorak Road and Elizabeth Street intersection will be insignificant.
5. Some Respondents submitted that some drivers behave badly by accelerating through the traffic treatments and this would be hazardous so close to the basement entry ramp. Occasional anti-social driver behaviour causing hazards is not a proper basis to refuse to amend the permit.
6. Some Respondents submitted there would be traffic chaos if a vehicle headed for the basement had to prop in the street near the treatment waiting for a vehicle to exit the basement. I accept Mr Butler's evidence that the likelihood of this conflict is low given the small increases in movement arising under the amendments and, in any event, would be a further calming effect for a short period.
7. The Respondents living at 68 Elizabeth Street have a crossover directly opposite the existing crossover on the subject land and are concerned about traffic conflict when they reverse out of their driveway so close to the traffic treatments. The proposed residents will be existing the basement in a forwards direction and will have good sighting of reversing movements in the opposite driveway.
8. I have no expert traffic evidence contradicting Mr Butler's overall opinion that car park provision, access and layout is acceptable and that traffic generated by the amendments will be low and would not have a discernible impact on Elizabeth Street (and not affect its environmental capacity) and surrounding streets. The Council's engineers also do not oppose the amendments on traffic and parking grounds. If any further traffic treatments or measures are needed in Elizabeth Street in the future, the Council has the authority to consider and implement them.

1. I now comment briefly on other issues agitated during the hearing.

1. Under the endorsed plans the site coverage is 77.8%. Under the amendments, the proposed site coverage is reduced slightly to 77.6%. Under GRZ10, the maximum site coverage is 75%. For the same reasons that I referred to when considering maximum building height under GRZ10, site coverage is no proper basis to refuse to amend the permit.

1. The Respondents are concerned about the impact of the amendments on a mature lemon scented gum in Robert Menzies reserve about 4.5 m from the rear boundary of the subject land.
2. Having carefully observed the canopy of the tree, there may be minimal branch trimming required to accommodate the building, but such trimming would not result from the amendments. The amendments lessen the likelihood of root pruning because the basement is set back further from the park under the amendments.
3. The Applicant has accepted a new condition requiring a tree management plan before any works start and a requirement that a qualified arborist supervise any root pruning.
4. The Respondents living at the home abutting the subject land to the south are concerned about the impact on cypresses on their land along the common boundary and the brick wall along the boundary at the front of their land. The amendments do not change the impact in the permit and the impacts must be dealt with under building arrangements.

1. Mr Merlo's landscaping proposal will provide the building with a quality landscaped setting.

1. The amendments will not result in any unreasonable off-site amenity impacts, especially in relation to overshadowing or overlooking. The apartments have generous dimension despite the additional number and provide a good level of internal amenity.

1. I will amend the permit in a number of ways.
2. I will amend what the permit allows. I will also amend condition 1 to reflect the amended plans. Some additional matters must be shown on the plans so I will not approve the amendment plans.
3. To otherwise give effect to the amendment plans, I must amend conditions 2, 3, 7, 9 & 14 and I need to include a new condition relating to protection of the tree in the park. To aid clarity, I will substitute all the conditions so that a complete set of unamended, amended and new conditions is included in the order.
4. I have decided to not include a STEPS environmental assessment for the building as amended by the amendments. It was not included in the permit and the amendments do not fundamentally change what is permitted. There is no ESD policy yet in the scheme.
5. Under the permit, the development must start no later than 11 May 2016 and must be completed by 11 May 2018. As development has not yet started, there is only eight months left (of the usual two year period) before development must start. It is reasonable to allow the usual two year to start the development under the amended permit. I will therefore amend existing condition 15.

1. For the above reasons, I will set aside the Council's decision and grant an amendment to permit no. 0255/09.

Construction of a multi-dwelling development in a General Residential Zone

1. For all the conditions included in the permit, substitute:
   1. Before the development starts, plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. Three copies to be provided. When approved the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans substituted by the Victorian Civil and Administrative Tribunal in Proceeding no. P666/2015 being the plans prepared by Jackson Clements Burrows Architects drawing nos. TP0-100 Revision C (1 June 2015), TP0-101 Revision A (8 August 2014), TP0-201 Revision A (8 August 2014), TP0-202 Revision B (1 June 2015), TP0-301 Revision B (1 May 2015), TP1-101 Revision F (1 June 2015), TP1-102 Revision H (1 June 2015), TP1-103 Revision D (1 June 2015), TP1-104 Revision E (1 June 2015), TP1-105 Revision F (1 June 2015), TP2-101 Revision E (26 February 2015), TP2-102 Revision E (1 June 2015), TP3-101 Revision D (1 June 2015), TP3-102 Revision F (1 June 2015), TP10-101 Revision B (1 June 2015), TP10-102 Revision B (1 June 2015), TP10-103 Revision B (1 June 2015), TP10-201 Revision B (1 June 2015) & TP10-202 (May 2015) but modified to show:

1. Proposed landscaping of the land in accordance with the Landscape Plan approved under condition 3. 2. Waste Management details in accordance with the Waste Management Plan approved under condition 4.

1. Details of the operable louvre privacy screens.

1. Amendment of section E on drawing no. TP3-102 to reflect the increased setback of the basement from the western boundary.

All to the satisfaction of the Responsible Authority.

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason (unless the Stonnington Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
2. Before the development starts, an amended Landscape Plan, with a layout generally in accordance with the details shown on the plans prepared by Jack Merlo Design drawing nos TP01 to TP07 (inc) all Revision D (all 5 June 2015) must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and then form part of the permit. The Landscape Plan must include:

1. The size of planting containers. 2. Irrigation methods for all vegetation located in planting containers.

1. The Lilly Pilly (Syzygium Australe) trees that are to be planted adjacent to the northern boundary of the land may not be lopped so as to reduce them to a height of less than 8.0 metres.

All to the satisfaction of the Responsible Authority.

1. Concurrent with the endorsement of plans, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must include:

1. Dimensions of waste areas. 2. The number of bins to be provided.

1. Hours of waste and recyclables collection. 2. Method of presentation of bins for waste collection. 3. Sufficient headroom within the basement to allow the passage of waste collection vehicles. 4. Sufficient turning circles for the waste collection vehicles to drive out in forward gear from within the basement. 5. Strategies for how the generation of waste and recyclables from the development will be minimized.
2. Before the development starts, a report for the legal point of stormwater discharge must be obtained from Council. A drainage and driveway design for the development must be prepared by a suitably qualified Engineer prior to a building permit being issued. The drainage and driveway must be completed in accordance with the Engineer's design.
3. All services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority.
4. Prior to the occupation of the building, fixed privacy screens (not adhesive film) as shown on the endorsed plans must be installed to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority thereafter for the life of the building.
5. The proposed vehicle crossing is to be designed and constructed in accordance with Council's standard vehicle crossing details.
6. Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be relocated at the cost of the owner and subject to the relevant authority's consent.
7. Prior to demolition or commencement of any works, a solid protective fence, at least 1.5m tall, running from curb to footpath, 1m either side of the street tree stems (for all 3 street trees located on front of the subject site) must be erected to the satisfaction of the Responsible Authority.
8. The levels of Elizabeth Street must not be altered in any way to facilitate access to the land.
9. Prior to occupation of the building or commencement of use, any existing vehicular crossing (or part thereof) made redundant by the building and works hereby permitted must be broken out and re-instated as standard footpath and kerb and channel at the permit holders cost to the approval and satisfaction of the Responsible Authority.
10. Before the use / occupation of the development starts or by such later date as approved by the Responsible Authority in writing, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority. Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
11. Prior to the commencement of any excavation works, a tree management plan (TMP) for the mature Corymbia citriodora (Lemon Scented Gum) located to the west of apartment 5 located within Sir Robert Menzies Reserve must be prepared by a suitably qualified arborist and submitted to and approved by the Responsible Authority. When approved the TMP will form part of the permit and all works and measures set out in the TMP must be implemented to the satisfaction of the Responsible Authority. The TMP must include a requirement that any root pruning to the tree must be conducted under supervision of an arborist to the satisfaction of the Responsible Authority.
12. All plant and equipment (including air-conditioning units but excluding solar panels) shall be located or screened so as not to be visible from any of the surrounding footpaths and adjoining properties (including from above) and shall be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with Section 48A of the Environment Protection Act 1970 to the satisfaction of the Responsible Authority.
13. This permit will expire if one of the following circumstances applies:
    1. The development is not started within two years of the date this permit as amended was issued following the final orders of the Victorian Civil and Administrative Tribunal in Proceeding no. P666/2015.
    2. The development is not completed within four years of the date this permit as amended was issued following the final orders of the Victorian Civil and Administrative Tribunal in Proceeding no. P666/2015.

In accordance with Section 69 of the Planning and Environment Act 1987, a request may be submitted to the Responsible Authority within the prescribed timeframes for an extension of the periods referred to in this condition.

[1] I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not list, recite or refer to all of the contents of those documents in these reasons.

[2] The Council extended the permit twice and development must now start by 11 May 2016.

[3] The living areas in the basement means the building is therefore, in a technical sense, a part-four storey building.

[4] See eg Austcom Pty Ltd v Buckerfield Pty Ltd [1999] VSC 23.

[5] Stonnington Planning Scheme cl 32.08-7 & schd 10 cl 3.0. For completeness, I add that cl 3.0 specifies a maximum lift overrun height of 1.2 m. The endorsed plans include a lift overrun of 1.2 m. The amendments relocate the overrun but the amended location remains compliant with cl 3.0.

[6] Callea Property Developments Pty Ltd v Wyndham CC [2014] VCAT 466 at [37].

[7] See eg Fosters Group Pty Ltd v Mornington Peninsula SC [2010] VCAT 104; Popular Pastimes Pty Ltd v Melbourne CC [2008] VCAT 1184.

[8] Callea Property Developments Pty Ltd v Wyndham CC [2014] VCAT 466 at [53].

[9] Coles Property Group Developments Ltd v Boroondara CC [2014] VCAT 342

[10] Bestway Group Pty Ltd v Monash CC [2008] VCAT 860 at [14]; referred to in Coles Property Group Developments Ltd v Boroondara CC [2014] VCAT 342 at [20].

[11] For completeness, I also refer to new floor area between the wing walls on the second floor of the southern wing to which I have already referred. This change is also insignificant. As well, the somewhat longer or larger shutters to the east and west facades is also insignificant

[12] Bestway Group Pty Ltd v Monash CC [2008] VCAT 860 at [23]; referred to in Coles Property Group Developments Ltd v Boroondara CC [2014] VCAT 342 at [20].

[13] Union Street Apartments Pty Ltd v Stonnington CC [2015] VCAT 96.

[14] Union Street Apartments Pty Ltd v Stonnington CC [2015] VCAT 96 at [12].

[15] Stuart McGurn, statement of evidence at [74].