1 In application P3481/2004 the decision of the responsible authority is varied. The Tribunal orders that the endorsed plans under permit MPS2001/0110 are altered by substituting the plans prepared by Metaxis Architects Pty Ltd dated October 2004 Revision Fi numbered TP.101 - TP.107, TP.201 - TP.202, TP.301 - TP.304 (inclusive).

2 Application P3482/2004 for declarations is dismissed.

Helen Gibson Anthony Liston

Deputy President Senior Member

Ms Michelle Quigley SC, instructed by Deacons. She called as witnesses:

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George Metaxis, Architect, of Metaxis Architects Pty Ltd

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Catherine Heggen, town planner, of Fulcrum Town Planners Pty Ltd

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Stephen Hunt, traffic engineer, of Grogan Richards Pty Ltd

1 These applications relate to the redevelopment of the former Tip Top Bakery site in East Brunswick. In 2002 the Tribunal issued a permit for a large mixed use development of the site comprising a number of buildings ranging from three to seven storeys in height. The Applicant applied to the council to alter the development permitted by the endorsed plans, primarily by increasing the number of dwellings from 181 to 237, through the replanning of the proposed buildings. The council opposes the amendment, arguing that it should not be pursued by seeking a secondary consent under the permit conditions, but rather that the Applicant should be obliged to make a new planning permit application for the entire redevelopment.

2 Application P3481/2004 is made pursuant to section 149(1)(a) of the Planning and Environment Act 1987 in respect of the refusal by the responsible authority to consent to an amendment to the plans endorsed under permit MPS2001/0110. Application P3482/2004 seeks certain declarations under section 149B of the Act concerning Council's decision to refuse to approve the amending plans.

3 The permit holder originally applied to the responsible authority to amend the plans under section 62(3) of the Act. However, there is no power for the Tribunal to undertake a review of a decision by a responsible authority in relation to the amendment of plans under section 62(3) - see Cope v Hobsons Bay City Council [2004] VCAT 2487 (para 39) and 155 Domain Road Pty Ltd v Melbourne City Council [2002] VCAT 1320 (paras 10-12).

4 It was agreed by parties at the hearing that the request to amend plans was more properly made under the provisions of condition 2 of the permit, which provides:

2. The use and development as shown on the endorsed plan must not be altered unless with the written consent of the responsible authority.

5 The Council's refusal to consent to alterations to the endorsed plans under this condition triggers a right of review under section 149(1)(a) of the Planning and Environment Act. We have proceeded on this basis.

6 The proposed alterations are described in considerable detail in the plans and the expert witness statements. The proposed changes are largely achieved within the existing building envelope with the form and architecture of the proposed buildings not being altered in any significant way. The most important change is the increase in the number of dwellings from 181 to 237. This has been achieved by the replanning of the existing buildings, including the concentration of the proposed office space into the building known as W1 on the Weston Street frontage of the site. There has been a small increase in the number of on site car spaces by 9 to 336 spaces. All this has been achieved with a small, 2% reduction in floor area.

BASIS FOR DECISION-MAKING UNDER SECONDARY CONSENT

7 As previously noted, condition 2 of the permit issued at the direction of the Tribunal in 2002 provides that the use and development shown on the endorsed plans must not be altered unless with a written consent of the Responsible Authority. In the jargon of the planning system an application for a consent under a condition of this type is called an application for a secondary consent. A primary consent is the permission given in response to an application for a permit in accordance with the provisions of the Act and the planning scheme.

8 The primary permissions discerned from the preamble of the permit issued at the direction of the Tribunal are for demolition, development, the use of the land for the purposes of dwellings and office and for a reduction in the required car spaces.

9 The Tribunal was referred to very many decisions in relation to the ambit of its discretion in applications of this type. In Mentone Mansions Pty Ltd v Kingston CC [2000] VCAT 1947, the Tribunal concluded that permitted development could be altered provided 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. It is interesting to note in that case, which involved alterations to a medium density development, that the relevant consequence was held to be the effect of the alterations on the amenity of adjoining residences[1].

10 In WAF Constructions v Yarra City Council [2005] VCAT 168 and Grosios v Monash City Council [2003] VCAT 626] the Tribunal found that in addition to these considerations the proposed alterations must be consistent with the permit.

11 In this case it was argued on behalf of the Responsible Authority that the proposed alterations were:

• consequential variations (in that the alterations are "consequential having regard to the purpose of the planning controls which led to the grant of primary permission") [see also Cope v Hobsons Bay];

• inconsistent with the permit [see WAF Constructions v Yarra City Council [2005] VCAT 168 and Grosios v Monash City Council [2003] VCAT 626];

12 In the altered proposal the land uses are unaltered, the floor area is only 2% less than that originally proposed, the form and architecture of the proposed buildings is largely unaltered, and the extent to which the original fabric of heritage buildings are retained and reused is, if anything, in small ways improved. We do not think that having regard to these factors the proposed alterations can in any sense be characterised as a transformation. Therefore, the next issue to be resolved is whether or not the proposed alterations are inconsequential having regard to the purpose of the planning controls which lead to the need for the primary permission[2].

13 Permission was required for the use of the land however the use of the land is unchanged in the proposed alterations. A permit is required for demolition however, the extent of demolition is effectively unchanged in the proposed alterations. A permit is required for development, and the proposed alterations potentially affect the significance of the heritage place, and amenity both within and without the site, including issues relating to traffic and car parking. A permit is required to reduce the number of required car spaces and the proposed alterations effect the quantum of the reduction required by the development of the land.

14 Before turning to the consequences or otherwise of the proposed alterations in respect of the affected permissions outlined above, it is worthwhile to consider the location or context of the land, because the site context is an important factor in determining whether or not the consequences of the proposed alterations are real or significant.

15 The subject land is for an inner city location a large site which has been used for industrial purpose. The built environment is robust. The land has two extensive street frontages and good connections to public transport and the arterial road network. There is land within a residential zone to the east and north of the subject land, but the direct abuttals are not unduly sensitive in part because of the existence of the Masonic lodge and in part because of the retention of an existing heritage building in the location where the site adjoins a dwelling in the residential zone.

16 The alterations to the development shown on the endorsed plans are quite substantial in some respects, but they are largely internal to the buildings and internal to the site. The effect of this is that there is very little change to the exterior fabric of the heritage buildings to be retained, moreover, the form and architecture of the new infill buildings proposed is also very similar to that shown on the endorsed plans. It is our conclusion that there are no changes of consequence to the significance of a heritage place resulting from the proposed alterations.

17 The increase in the number of dwellings from 181 to 237 dwellings considerably alters the intensity of the use of the land for residential purposes. Putting aside issues relating to car parking and traffic which are dealt with separately, what are the relevant amenity implications of this intensification of the use and are there any consequential changes in this regard?

18 Because the form and architecture of the buildings is largely unchanged the proposed alterations have had no effect in relation to issues such as overshadowing, overlooking, daylighting, height, setbacks, and respect for neighbourhood character. The officer's report placed particular emphasis on a new lift overrun associated with building W3, however, its setback from boundaries, and relationship to the Masonic lodge on adjoining land, is such that in the context of the overall scale of this development it is a trivial change.

19 The increase in the number of the dwellings will lead to an increase in the number of persons accommodated on the land although the percentage increase in population will be less than that of the increase in dwellings, because the proposed smaller dwellings are likely to accommodate smaller households. There will undoubtedly be an increase in activity flowing from the increasing population. There will be an increase in pedestrian movements, but its doubtful that the increase would be perceptible. There will be an increase in household activities within the site but again it is unlikely that any increase in household activity within the site will be perceptible from without the site. We are satisfied that, putting aside for the moment the issue of traffic and car parking, there are no significant consequential effects arising from the intensification of the use of the land for dwellings, indeed no such effects were argued before us.

20 The officer's report also suggested that that consolidation of the office space, and the consequential replacement of a number of smaller office tenancies with dwellings fronting onto the proposed laneway would adversely affect the functioning of the business zone, and therefore the amenity of the commercial centre. There was no attempt to demonstrate how this alleged detrimental outcome might be realised and we place no weight on this suggestion.

21 In relation to internal amenity, the officer's report was critical of opposing bedroom windows in the two wings of building E2 separated by a 3.9 metres wide circulation space, and the amenity implications for dwellings now proposed to front on to the proposed laneway at ground floor level.

22 In relation to the bedroom windows of concern, the windows are offset, and there are any number of detailed design solutions to ensure a satisfactory outcome. In relation to the new dwellings fronting onto the new laneway, dwellings fronting onto minor streets in urban contexts such as this are hardly unusual, and these dwellings should enjoy an acceptable standard of amenity.

23 It is our conclusion that the alterations to the endorsed plans do not result in any changes to the internal amenity of dwellings within the land which are of consequence. In the language used by Ms Heggen while giving evidence, the amenity outcome represented by the endorsed plans for future residents has been largely preserved in the proposed alterations to the development.

24 The table below compares the endorsed plans, to the proposed altered development in respect of car parking when assessed against the table to clause 52.06. It was submitted on behalf of the Responsible Authority that the quantum of the reduction sought has very significantly increased, and that this was a consequential change which had the effect of preventing the approval of the altered development by way of a secondary consent.

25 This raises an important question: is the consequential change relevant to the secondary consent the theoretical or statutory construct which arises from the application of clause 52.06 or the actual car parking impact assessed using more realistic requirements or an empirical assessment of the likely car parking demand?

26 The table to clause 52.06 is a default provision and a trigger for the exercise of discretion. However, the clause in reality invites a more empirical approach. The relevant objective of clause 52.06 is to ensure the provision of an appropriate number of car spaces having regard to the activities on the land and the nature of the location. We think this objective aids in the purposeful assessment of what the primary permission seeks to achieve, and that is determining whether or not an appropriate number of car spaces are provided for the uses on the land in the context of its locality. Therefore, it is not the differences which arise from the application of the table to clause 52.06 which is important, rather it is the actual parking impact resulting from the alterations to the development shown on endorsed plans proposed in the particular case.

27 Mr Hunt in his evidence compared the likely car parking demand of the development shown on the endorsed plans with the proposed alterations to the endorsed plans in three ways: there was an assessment in accordance with the table of clause 52.06; there was a ResCode assessment, where the ResCode rates were used for the dwellings proposed; and then there was the empirical approach based upon various surveys of similar uses elsewhere. The outcome of these assessments is set out in the tables below.

28 We think on the basis of Mr Hunt's evidence that the worse case scenario is that the proposed alterations to the development will result in a situation where car parking supply changes from a slight oversupply, to a slight undersupply. If one has regard to the fact that the demand for visitor car spaces associated with the proposed dwellings is likely to peak at quite different times to the peak in customer car parking demand associated with the proposed offices, and the availability of on street car parking along the frontages of the site, then we think it is safe to conclude that the proposed alterations to the development will not result in a change of any consequence (a consequential change) in relation to the amenity impacts associated with demand for car parking arising from the redevelopment of the land.

29 In relation to traffic it was Mr Hunt's assessment that traffic generation would rise from 1139 VPD to 1419 VPD, a difference of 280 vehicle movements per day or 28 vehicle movements in the peak hour. When these movements are distributed to both Edwards and Weston Streets, in the east and west direction, the variations to traffic flow in the peak hour resulting from the alterations to the development shown on the endorsed plans will not be perceivable. The traffic impacts of the development on the amenity of the locality will not result in a consequential change.

30 The final issue is whether or not the altered development is consistent with the permit. As already indicated, Ms Heggan was careful to analyse the permit conditions and, as a consequence, there have been a number of changes to the altered development proposed. We think that the changes which have resulted from Ms Heggans' recommendations, ensure that the altered development remains consistent with the original permit.

EXTENT OF CHANGES THAT CAN BE APPROVED UNDER A SECONDARY CONSENT

31 As a result of our analysis we have reached the conclusion that the alterations to the development are consistent with the permit and are inconsequential having regard to the purpose of the planning controls which led to the grant of primary permission. In terms of impact on amenity (internal and external to the site) and outward visual appearance there will be little discernable difference between the plans originally endorsed and the plans as amended. Notwithstanding this, the responsible authority still had difficulty accepting that what it considers to be a major change, which will be an increase in the number of dwellings from 181 to 243, could be approved by way of secondary consent. The responsible authority says the changes amount to a substantially different proposal from that which was the subject of:

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Public notice to residents

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Objection

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Assessment by Council at the application stage

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A hearing before the Tribunal.

32 We disagree with this proposition because we do not consider that the total number of dwellings was a primary factor in the original consideration of the proposal. Rather, what were relevant to the decision to grant a permit were the effect of the dwellings in terms of heritage, the external appearance of the built form and their impact external to the site, especially in terms of traffic and car parking, irrespective of their total numbers. If the effect remains the same, or at least within acceptable bounds such that the changes can be said to be inconsequential having regard to the purpose of the planning controls which led to the grant of primary permission, it does not matter whether the numbers change.

33 The planning system needs to be sufficiently flexible to accommodate the sort of changes likely to occur with a use or development over time or as a development proposal is implemented. As the Tribunal said in Mentone Mansions:

[37] . . . . .Most planning projects undergo a design and development process which takes a considerable time, and the planning approval phase is early in that process. As a consequence, after planning approval the development of a design for construction purposes, and the construction process itself, can result in a need to amend the development no matter how well resolved the development is at the planning stage.

34 In the present case, the subject land has changed hands since the permit was originally granted and the new owner wants to adjust the type of units to the current market, hence the proposed changes. No good purpose would be served in our view by sending the proposal back to square one by requiring a new permit application when the external framework of the proposal has been so fully resolved. We believe that the type of changes to the use and development allowed by the permit are the sort of changes which secondary consent conditions, such as condition 2, are designed to facilitate.

35 Notwithstanding the recent introduction of the new Division 1A to Part 4 of the Planning and Environment Act, which will introduce a more comprehensive means of amending permits (possibly quite significantly), secondary consents within permit conditions will retain an important role and the tests for exercising those consents as set out in Mentone Mansions will remain relevant.

36 The important distinction between the two mechanisms is that under Division 1A it is the permit itself that is being altered, whereas under a secondary consent provision it is the use or development allowed by the permit (or a particular aspect of the use or development) that is being altered. In consenting to a change under a secondary consent provision it is not possible to go beyond what the permit allows or step outside what the permit requires. On the other hand, it may be possible to do something less than what the permit allows unless there is a requirement to the contrary in the permit, in which case an amendment to the permit would be necessary under Division 1A. This was the factual situation in 155 Domain Road Pty Ltd v Melbourne City Council [2005] VCAT 637 where the permit allowed construction of a "five storey building exceeding 12 metres above ground level, a basement car park, and demolition." The Tribunal held that whilst a basement car park was allowed, it was not required on the basis that the expression used in the authorising words "a basement car park" is not central to the required permission. Hence it was open to change the development under a secondary consent provision in the permit to a development without a basement car park.

37 If there is a specific requirement in a permit condition that cannot be changed by consent, then we do not consider that a secondary consent provision may be relied upon to alter development in a way that is inconsistent with such requirement. To change such a requirement would need a change to the permit itself using the mechanism offered by Division 1A (or Division 3 of Part 4 in the case of a permit granted by the Tribunal). This was the point being made by Justice Morris in 155 Domain Road Pty Ltd v Melbourne City Council [2005] VCAT 637 when he said:

[17] This does not mean that any non-transforming change to the endorsed development could be approved by the responsible authority pursuant to a condition such as condition 2. Such a change must also be consistent with the permit: not because this is a requirement of section 62(3)(a)(ii), but because it would be illogical for a secondary consent to produce an outcome inconsistent with the primary consent (the permit) which created the right to give secondary consent. ....

38 In summary, when deciding whether a use or development may be altered under a secondary consent provision in a permit, the scale of the change is not relevant per se. The change need not simply be "minor" to be allowable under a secondary consent provision provided it meets the following requirements:

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It does not result in a transformation of the proposal.

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It does not authorise something for which primary consent is required under the planning scheme.

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It is of no consequence having regard to the purpose of the planning control under which the permit was granted.

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It is not contrary to a specific requirement as distinct from an authorisation within the permit, which itself cannot be altered by consent.

39 Alterations to a use or development allowed by a permit pursuant to a secondary consent provision in the permit do not attract third party participation or rights of review. The tests that have been developed for deciding whether a secondary consent should be granted tacitly acknowledge this. The process now offered by Division 1A of Part 4 of the Act does involve third party participation and it provides a mechanism for changing a permit, including situations where the proposed change falls outside the parameters of a secondary consent provision and it is hence appropriate for third parties to be involved. However, as we have noted, it should not automatically be assumed that all changes to a use or development can only occur via this mechanism. An important role will remain for secondary consents to facilitate the practical implementation of proposals large and small, which should involve a fairly robust approach to assessing what is or is not of consequence having regard to the purpose of the planning control under which the permit was granted. The present case illustrates that change within the framework of the permit can be quite substantial provided this and the other criteria relevant to secondary consents are observed.

40 The outcome is that we will approve the changes to the endorsed plans under condition 2 of the permit. As a result of this decision the application for declarations becomes irrelevant.

Helen Gibson Anthony Liston

Deputy President Senior Member

[1] Mentone Mansions Pty Ltd v Kingston CC [2000] VCAT 1947, para 24

[2] Mentone Mansions Pty Ltd v Kingston CC [2000] VCAT 1947, para 20.