Westpoint Corporation PL v Moreland CC

Westpoint Corporation PL v Moreland CC - [2005] VCAT 1049 - VCAT 2005 case summary — Zoe

[14]

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]

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.

[27]

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:

At a glance

Court

Decision date

Source

Judgment (33 paragraphs)

Westpoint Corporation PL v Moreland CC (Red Dot) [2005] VCAT 1049 (31 May 2005)

Parties

Legislation Cited (1)