TP-02 to TP-06 Revision C and TP-01, TP-07 to TP-14, TP-14.1, and TP15 to TP-24 Revision D, prepared by Ascui Edwards Architects (Job No. 1456)

endorsed under the permit are amended and the responsible authority is directed to endorse amended plans showing:

(a) An increase to the northern building setback of the fourth level (Apartment 301) to at least 3 metres (an increase of 600mm), measured from the centre of the northern property boundary with the setback building line at 900 to the eastern property boundary. The amended building setback to include the roof.

(b) An increase to the eastern building setback of the fourth level (Apartment 301) of 2 metres north of the stair well.

1. The southern building setback of the fourth level (Apartment 301) may be decreased to 13.05 metres while retaining the existing degree of building articulation. Correspondingly, the setback of the southern balcony may be decreased to 10.4 metres.
2. The responsible authority is directed to amend the permit and issue an amended permit to the owner of the subject land pursuant to section 91 of the Planning and Environment Act 1987.
3. The responsible authority is directed to endorse amended plans reflecting the amendments to the permit.

Mr Damien Loughnan, town planner of G2 Urban Planning

In April 2014, a permit was granted at the direction of the Tribunal for a three level apartment building (above a basement car park) containing eleven apartments and a fourth level roof-top terrace of 114 square metres for the exclusive use of one of the third level apartments. The total height of the building is 12.37 metres.

• Replacing the roof-top terrace with an apartment of 177 square metres and a balcony of 103 square metres. There is no change to the building height.
• Increasing the number of basement car spaces from 22 to 25.
• Deleting permit condition 1(c) which requires high level windows on the north elevation to the bedrooms of Apartment 04 at ground level.
• Deleting permit condition 1(k) which requires a flat terrace to be for the sole use of occupants of Apartment 202 as this will now comprise a new storey.
• Amending the permit preamble to refer to 12 dwellings and not 11 dwellings.

Application under Section 87A of the Planning and Environment Act 1987 - to amend a permit.

General Residential Zone - Schedule 10 (GRZ10). The site abuts the Neighbourhood Residential Zone - Schedule 2 (NRZ2) to the west and is separated by a laneway from the Commercial 1 Zone (C1Z) to the east and the Public Use Zone - 4 (Transport) (PUZ4) to the north.

The site is also adjacent to the Heritage Overlay; HO23 & VHR H910 (Malvern Tram Depot) to the north, HO349 (Glenferrie Road/High Street) to the east and HO377 (Union Street) to the west.

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

Clauses 11.04, 15.01, 16, 21.03-2, 21.05, 21.06-4, 43.01, 55 & 65.

For convenience, I have drawn on land description from the previous Tribunal decision for this site, modified to reflect its current condition.

The subject site is located on the northern side of Union Street, proximate to the Glenferrie Road Major Activity Centre (MAC). The rear of Glenferrie Road commercial properties abuts the eastern side of the Right of Way which runs along the site's eastern boundary. The Malvern Tram Depot abuts the northern side of the Right of Way which runs along the site's northern boundary. A single storey dwelling abuts the site's western boundary.

Recently, a commercial building on the site has been demolished, leaving the land vacant. The land has a frontage of 23.33 metres and a maximum depth of 33.83 metres, yielding a site area of 787m2.

I conducted an unaccompanied site inspection of the subject site and the surrounding area on 29 December 2014.

Union Apartments Pty Ltd v Stonnington CC [2014] VCAT 455.

The King David School v Stonnington CC & Ors (includes summary) (Red Dot) [2011] VCAT 520.

1. This application seeks to amend existing permit 0567/13, issued by the Responsible Authority on 30 April 2014 by order of the Tribunal on 22 April 2014. To summarise the information in the preliminary information, the amendment proposes to:
   • Amend the permit preamble to refer to 12 dwellings, not 11 dwellings.
   • Replace the fourth level roof top terrace with a larger apartment.
   • Increase the number of on-site car spaces from 22 to 25, using increased car stacker capacity.
   • Delete Condition 1(c), which states:

Apt G04 be provided with appropriately shaded high level windows on the north elevation to bedrooms 1 and 2.

(The Tribunal, in its original decision, considered it "undesirable to have windows with a direct abuttal to the rear Right of Way." The condition requiring the windows was inadvertently retained.)

• Delete Condition 1(k), which stipulates that "the roof terrace is to be for the sole use of the occupants of Apartment 202." This condition is redundant if the terrace is replaced with an additional fourth level apartment.

1. Given the existing permit approves a residential apartment building on the subject land to a height of 12.37 metres, I confine my assessment of this matter to the above amendments. In this context, I consider the questions to be answered are:
   • Does the application to amend the permit constitute a modification to the permit or a transformation to a different permit?
   • Do the changes to the building erode the neighbourhood character response of the approved development?
2. Having considered the submissions and inspected the site, I have decided to vary the approved design by allowing the proposed fourth level apartment, subject to setback variations. I have also deleted permit conditions 1(c) and 1(k). My reasons follow.

DOES THE APPLICATION TO AMEND THE PERMIT CONSTITUTE A MODIFICATION TO THE PERMIT OR A TRANSFORMATION TO A DIFFERENT PERMIT?

1. An application under section 87A of the Planning and Environment Act 1987 allows the Tribunal to;

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

1. the owner or occupier of the land concerned; or
2. any person who is entitled to use or develop the land concerned.

1. The replacement of the roof terrace with a substantially larger additional apartment is a significant change to the approved development. The question arises as to whether the changes simply modify or transform the approved development. This issue has been discussed in previous Tribunal decisions, perhaps most notably in The King David School v Stonnington CC & Ors[2]. This is a 'Red Dot' decision, where the Tribunal found:

We consider that the flexibility afforded by s 87A should not be used to undermine the intent of the original Tribunal decision unless there is some sound justification to doing so.

1. In the King David decision, the Tribunal also expressed;

..some concern with the s 87A process being used to seek more substantive changes to the permit, shortly after it has been granted, where the nature of the proposed changes seems directed to seeking a more favourable outcome than that clearly contemplated in the Tribunal decision that led to the grant of the permit.

1. In this proceeding, the applicant is quite open in conceding an initial intent for four apartment levels (possibly explaining why use of the approved terrace is dedicated to only one of apartments below). The current application to convert the terrace to a larger apartment confirms this 'two stage' approach, often referred to as taking 'a second bite of the cherry'.
2. Again, in the King David decision:

It is to the detriment of the planning system generally, and to the certainty of the permit review process, if permit applicants are able make repeated applications to the Tribunal on similar subject matter, as a basis for simply seeking to change an earlier Tribunal decision with which they do not agree. It undermines confidence in the planning system by affected parties (primarily responsible authorities and objectors) and the community at large, as well as imposing an additional cost burden on them.

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

1. In Council's submission, the existing approval has 'optimised' the development potential of the site and has;

...struck a balance between the policy support for medium density housing on the review site and the need to respect neighbourhood character.

1. With regard to the proposed conversion of the roof terrace to an apartment, Council correctly, in my view, identifies the critical question to be;

...whether the proposed fourth level constitutes a moderate change that is consistent with the policy direction.

1. Determining whether the proposed change is 'moderate' is a function of degree and impact.
2. In the context of the King David decision, it can be argued the application is sailing close to the wind, however, given the scope of the application consists of an increase in the number dwellings from 11 to 12, a commensurate increase in on-site parking and no change to the building height, I am satisfied this application is a modification rather than a transformation of the approved development.

DO THE CHANGES TO THE BUILDING ERODE THE NEIGHBOURHOOD CHARACTER RESPONSE OF THE APPROVED DEVELOPMENT?

1. There are a number of issues that need to be assessed in considering the proposed amendments to the approved design, most of which are derived from the complex of zones and overlays surrounding the subject land, for example. These include:
   • The transition from the Commercial 1 Zone to the east to the Neighbourhood Residential Zone to the west.
   • The streetscape response.
   • The relationship of the amended design to the surrounding heritage places, particularly the Malvern Tram Depot immediately to the north.
2. The form and internal configuration of the building at the lower levels will remain largely as approved. With respect to the fourth level, it is pertinent to note that the previous Tribunal decision found the roof top terrace acceptable because it is well recessed from the sensitive interfaces to the west and to the street. In the Tribunal's view:

The building has been cleverly modulated to provide a transition between the commercial property on the corner of Glenferrie Road and Union Street and the abutting residential property.

1. I agree with this assessment and note that the effect of the proposed amendment will not significantly alter this design response. The minimum set back of the fourth level apartment from the front of the property will be 13.65 metres and the set back from the western side boundary will be 10.2 metres, with the latter well within the B17 set back standard in ResCode.
2. I accept that the proposed fourth level apartment will not be visible from the opposite side of the street, nor from standing height within the adjoining property to the west at 71 Union Street.
3. For reasons explained below, I have made a minor reduction in the front set back to facilitate shifting the fourth level apartment south. In my assessment, the 'visibility' of the proposed apartment will remain acceptable after the application of this change.
4. With respect to longer views from residential properties further to the west, I find the form of the fourth level apartment to be acceptable, given the oblique lines of sight and the context of the very large tram depot structures that extend to the west as a 'backdrop' along Union Street.
5. Of concern however, is the heritage significance of the Malvern Tram Depot, which has both State and National heritage recognition. The approved development shows the upper level terrace set back a 'respectable' 9.75 metres, compared with 2.4 metres or less for the proposed fourth level apartment. The apartment will also be slightly higher than the heritage tram depot building, separated from the subject site by laneway.
6. The tram depot building dates from the early twentieth century and is a significant structure in the evolution of Melbourne's tram system.
7. Just as it is important to effect an appropriate transition from the commercial buildings to the east through to the residences to the west, I consider it is also important to give respect to the tram depot as a significant heritage place.
8. Accordingly, I have included permit conditions to set the proposed fourth level apartment back from the eastern boundary by 2 metres (north of the stairwell) and from the northern boundary by 3 metres. As mentioned earlier, I have also allowed scope for a small reduction in the front (southern) setback to facilitate this change.
9. As a result of the above changes, I find the proposed amendments are acceptable when assessed in context with the neighbourhood character response of the approved development.

1. As a result of accepting the proposed additional apartment subject to the above changes, it is appropriate that condition 1(k) is deleted, as dedicated access to the roof top terrace is no longer required.
2. I also agree that condition 1(c) can be deleted, as this reflects the intent of the original Tribunal approval.

1. For the reasons explained above, the application is varied. A permit is issued subject to conditions.

[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 recite or refer to all of the contents of those documents in these reasons.

[2] The King David School v Stonnington CC & Ors (includes Summary) (Red Dot) [2011] VCAT 520.