(i) the planning scheme currently applying to the land; and

(b) the amendment will not authorise anything which would result in a breach of a registered restrictive covenant.

3

The reasons for Council's refusal of the amendment of the plans were:

Council was not empowered to approve and endorse the proposed plans under section 62(3), in substitution for those already endorsed under the permit, or should decline to do so for one or more of the following reasons:

(a)

the plans are a transformation rather than an amendment;

(b)

the plans are not consistent with the Scheme;

(c)

persons may be detrimentally affected by the revised proposal notwithstanding its lesser scale;

(d)

as a matter of policy the Council should not adopt an amendment which would subvert the Tribunal's findings in relation to the matters at issue.

4

Permit PL02/0031 relates to an office development of five above ground storeys in Cremorne Street, Richmond. Ground level and basement level parking (including parking stackers) is proposed. The building is designed by the architects, Edmond & Corrigan, and would have an internal atrium and a distinctive abstract metal sun shade on the front (western) façade. The permit allows "construction of buildings and works and a reduction in the car parking requirements of the Planning Scheme". Condition 1 of the permit provides:

1 Before the use and/or development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted and date stamped 15 November, 2002, but modified to show:

(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:

35 I accept Mr Tweedie's submission that a development in the form proposed would achieve the objectives in Clause 21.05-3 to a greater extent than it could with the reduced floor area proposed by the Council. I also accept Mr Tweedie's proposition that the correct approach is to proceed on the basis that the height of the building should not be reduced unless there are compelling reasons to do so. The fact that a lower building might also be acceptable is not a compelling reason to reduce the "yield" for the site, especially given the policy support for development at higher densities close to activity centres and public transport.

8

The Tribunal also addressed the issue of car parking and deleted the conditions requiring the provision of 28 spaces and the condition requiring deletion of car parking stackers leaving the situation that a total of 36 spaces would be provided, 14 spaces on the ground floor and 22 spaces in the basement including 8 car stackers.

9

Plans were endorsed under the permit on 4 December 2003.

10

The applicant now seeks to amend the plans endorsed by Council pursuant to Section 62(3) of the Act. The amended plans propose to reduce the building height by one storey and remove the basement car parking (but retain the stackers for 8 of the 20 ground level spaces), giving a total of 28 spaces. The internal atrium has been removed as has the metal sunscreen on the front façade, which is replaced with a glazed entry/thermal corridor along the western end of the building floor plate. There is a small reduction in total floor area. The number of proposed tenancies has been reduced from 13 to 4.

11

The two key issues in this case are whether there is power to amend the plans in the manner proposed and, if so, whether discretion should be exercised to do so in the circumstances.

12

I have decided that I do not have power to amend the plans pursuant to section 62(3) of the Act because:

a

the proposed plans would effect a transformation of the approved development; and

b

they would not be consistent with the permit.

13

Even if I did have power, I do not consider that in the circumstances I should exercise that discretion to amend the plans because to do so would undermine the Tribunal's decision in the WAF Construction case in application P798/2003.

14

The following are my reasons for this decision.

15

The case of Melbourne City Council and Ors v Becton Corporation Pty Ltd and Ors [2003] VCAT 1077 is the leading case on the scope of the power in Section 62(3). The key conclusions reached by Justice Morris in the case were as follows:

• The power to approve an amendment under section 62(3) is a broad power, but not one which extends to the approval of plans which transform a development shown on plans approved under the permit.

• It is necessary to look at the similarities, as well as the differences, between plans in order to ascertain whether a later plan is an amendment or a transformation of the earlier plan.

• The fact that there are significant differences between plans can still be accommodated within the elasticity given by the concept of an amendment of plans.

•

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:

18. ... The fact that one set of plans has been previously approved does not prohibit an amendment to those approved plans and it does not prohibit the approval and endorsement of a modified version provided that the constraints of s 62(3) are satisfied.

19. That does not mean that the Responsible Authority is obliged to approve anything. The plans as modified can only be approved if they satisfy the constraints. The useful way of looking at it is to ask, if these modified plans had been proposed for approval and endorsement instead of the ones that were earlier approved and endorsed, could these new ones have been approved and endorsed accordingly? If the answer to that question is yes, then the approved plans can be amended under s 62(3). ...

20

The words of condition 1 of permit PL02-0031 require the endorsed plans to be "generally in accordance with the plans submitted and date stamped 15 November 2002". These are the plans that were submitted with the planning permit application and that reflect the approved scheme. Applying the test in Grosios, if the plans for the new scheme had first been lodged in response to the permit, I do not consider the plans could have been endorsed as being generally in accordance with the plans dated 15 November 2002 (but modified by the permit conditions).

21

Justice Morris in the Becton case agreed with the observations of Deputy President Horsfall in Canet v Brimbank City Council [2003] VCAT 13 that "general accordance" is a question of fact to be judged on the facts and circumstances of each case and that the less detail and precision there is in the primary document or documents, the more flexibility is given by the phrase generally in accordance with. In the present case there is a great deal of precision in the primary document, which is the permit. It is very specific about what the endorsed plans must be generally in accordance with, namely the plans dated 15 November 2002. I find that the proposed plans for the new scheme are not generally in accordance with the plans dated 15 November 2002 referred to in condition 1 of permit PL02/0031, therefore it cannot be said that the amendment proposed under section 62(3) of the Act is consistent with the permit, as required by section 62(3)(a)(ii). The plans for the new scheme constitute a transformation of the approved scheme and therefore I find that there is no power to amend the plans pursuant to section 62(3).

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.

24

Essentially the scheme that the applicant is now proposing was argued for by the responsible authority at the hearing of the WAF Constructions case. The Tribunal made a decision rejecting this argument and favouring the more intensive development. A Tribunal's decision is final and binding on the merits. The fact that the applicant now supports the position formally taken by the responsible authority does not alter the fact that to amend the plans would essentially overturn or undermine the Tribunal's decision in WAF Constructions.

25

In my view the correct course of action is for the applicant to submit a new planning permit application based on the new scheme, which can be considered on its merits, but for the reasons set out above this application should be dismissed.

[1] Gant v Greater Geelong City Council [2003] VCAT 2037,15 VPR 230 at 231