WAF Constructions v Yarra CC [2005] VCAT 168

WAF Constructions v Yarra CC [2005] VCAT 168 - VCAT 2005 case summary — Zoe

[11]

(a)

air conditioning units to be contained within the building envelope between east and west tenancies and appropriately screened from view;

(b)

a schedule of all external materials and finishes to show materials, colours (including colour and material samples) and finishes to all external wall, roof, fascias, window frames, glazing types, doors, fences paving, outbuildings and structures;

(c)

areas must be provided inside the property line and adjacent to the footpath to accommodate pits and metres;

(d)

reduction in the floor to floor levels of levels 1, 2 and 3 by 300mm each; and

(e)

width of car parking bays abutting walls to be 2.7 metres.

5

The permit was issued in its final form following the order of the Tribunal in the WAF Constructions case in August 2003. The application in this case was to review conditions imposed by the responsible authority. The conditions under review all related to requirements to modify the building form and parking provision. Most of the conditions at issue were expressed as requirements of condition 1 of the permit which required the submission and approval of amended plans prior to the commencement of the development. Those changes included deletion of one of the levels and its terrace. Other conditions related to car parking.

6

The Tribunal allowed the applicant's appeal against the conditions and directed they be deleted from the permit. This meant that an amending plans condition 1 remained (as set out in paragraph 4) but with only minor inconsequential changes left to be made.

7

The Tribunal's reasons for deleting the conditions forming part of condition 1 were based on its conclusion that the reduction in height and bulk sought by the conditions was not necessary. The Tribunal held that the site's location supports a high density commercial development. It concluded that planning policies in the Yarra Planning Scheme supported the proposal and the building will make a positive contribution to the streetscape in terms of its architectural merit and urban design. In particular, the Tribunal said:

[20]

•

The question as to whether an amended plan is consistent with the permit is a jurisdictional fact which must exist, not in the mind of the responsible authority, but as a matter of fact before the jurisdiction of the decision maker is enlivened. It is therefore a matter which can be reviewed, and determined by the Tribunal.

16

In the present case I was provided with a set of plans which compared the various aspects of the "approved scheme" with the "new scheme". Based on a consideration of these plans, I have reached the conclusion that the new scheme goes beyond being a modification, even a major modification, and constitutes a transformation of the proposal. The cumulative effect of all the changes makes this a different building to the one that was approved by the Tribunal and which permit PL02/0031 authorises. Substantial changes have been made to:

•

Appearance - the façade as presented to the streetscape which was a striking contemporary façade, has been replaced by a much more bland façade

•

Fenestration

•

Height - 5 above ground levels plus basement have been reduced to 4 above ground levels

•

Layout

•

Number of tenancies - reduced from 13 to 4

•

Profile and building envelope

•

Car parking - reduction in overall numbers and as well as ratio

17

Mr Tweedie acknowledged that whilst what is proposed is different, the similarities nevertheless outweigh the differences. What is proposed is still the construction of a multi storey office building with on-site parking and the same general footprint. I do not agree with this analysis. This description could apply to a great variety of different proposals none of which may resemble the approved scheme. The analysis may have been supportable if the only description of the proposal in the permit had been what the permit allowed, namely "construction of buildings and works and a reduction in the car parking requirements". Then the new scheme could be said to be encompassed by the elasticity afforded by this description. However, this general description of what the permit allows must be read in conjunction with the quite explicit words of condition 1, which refer to the plans dated 15 November 2002.

18

Section 62(3) of the Act precludes an amendment to plans that is not consistent with the permit. In deciding what is meant by consistency with the permit in Section 62(3), it is "consistency with the words used in the permit: in particular words which describe what is allowed and words which describe the conditions which apply to what is allowed." [1]

19

In Grosios v Monash City Council [2003] VCAT 626, Senior Member Byard said:

[24]

22

It was argued on behalf of the applicant that what is now proposed is little different to the outcome that would have resulted from the Council's conditions, that were deleted by the Tribunal. Although the Tribunal in WAF Constructions found that the plans submitted with the permit application achieved a better policy outcome than the less intensive proposal initially favoured by Council, this does not mean that the new plans are not consistent with the planning scheme and its policy objectives. They might not represent the best outcome but the test in Grosios does not require the new plans to necessarily be an improvement. Senior Member Byard made it clear in Fitzroy Rose Pty Ltd v Yarra City Council [2004] VCAT 155 that:

... An amendment can be made even if the result is not superior to the original. It could be of similar impact or, as in this case, not quite so good, as long as it is acceptable and appropriate in the circumstances and ... such that it might appropriately have been approved if originally proposed in that form.

23

I do not consider that the proposed amended plans could be said not to be consistent with the planning scheme currently applying to the land and therefore contrary to section 62(3)(a)(i). However, it is quite clear that the Tribunal in WAF Constructions specifically preferred the more intensive development to a four level building for a number of reasons, including that it responded better to the policy objectives in the planning scheme. To amend the plans as requested by the applicant would be in direct conflict with the Tribunal's reasoning and direction in WAF Constructions. I agree with the Council that while an amendment under section 62(3) is not specifically constrained by a Tribunal decision in the same manner as is the case with an amendment to a permit sought under section 73 of the Act, it would be implicitly inconsistent with the permit, or at least its purpose, to allow an amendment that can be seen to undermine the reasoning of the Tribunal which was fundamental to its decision and consequential order. It is for this reason that even if I found that I had power to amend the plans under section 62(3), I do not consider that in the circumstances I would have exercised my discretion to do so.

At a glance

Court

Decision date

Before

Source

Judgment (26 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

WAF Constructions v Yarra CC [2005] VCAT 168 (1 February 2005)