The land comprises two lots with a frontage of 39.58m, a depth of 42.67m and an area of about 1,680sqm.

To increase the number of apartments from 8 to 18; to increase the number of car spaces from 20 to 36; to provide centralised lift and stair access rather than two separate lifts and stairs; to alter the external appearance of the building; and to add a communal roof deck with an area of 222sqm.

Section 87A Planning and Environment Act 1987

Design and Development Overlay Schedule 1 - Building Height Control Coastal (DDO1)

Vegetation Protection Overlay Schedule 3 - Beaumaris and Black Rock Native Vegetation Areas (VPO3)

Clause 32.01-4 To construct two or more dwellings on a lot in R1Z

Clause 43.02-2 To construct a building exceeding 6 metres in height and to construct a roof deck above the second storey of a building in DDO1

Clause 52.29 To create or alter an access to a Road Zone Category 1 (Beach Road)

Kaazam Developments Vic Pty Ltd v Port Phillip CC [2013] VCAT 1565

Michael Palmieri Architects v Yarra CC [2012] VCAT 53

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

1. Planning Permit 2009/40/1 was issued in 2010 at the direction of the Tribunal for the construction of a three level building for dwellings over a basement for car parking and associated services at 16-17 Beach Road, Beaumaris. The permit has recently been extended by the Tribunal so that the permit now expires if development is not started by 4 January 2015.
2. The endorsed plans allow the construction of a total of eight apartments comprising three on each of the ground and first floor levels and two in the attic level. Each apartment extends from the rear to the front of the building, and the principal living areas are at the front of the building with a balcony and outlook across Beach Road to Port Phillip Bay. The endorsed plans also allow the construction of a basement for a total of 20 cars comprising 16 resident car spaces in the form of double garages for each apartment and four individual visitor car spaces.
3. The Applicant seeks permission from the Tribunal to amend the permit to provide 18 apartments generally within the building envelope shown on the already endorsed plans. The amendments sought include:
   1. Seven dwellings at ground floor level;
   2. Seven dwellings at first floor level;
   3. Four dwellings at second floor level;
   4. 36 car spaces in the basement including residential car parking in the form of two tandem spaces per apartment and three visitor car spaces[1];
   5. Alterations to all of the elevations to provide additional windows and balconies and to change the appearance of the building; and
   6. A new communal roof deck with a enclosed stairwell structure.
4. The Council does not support the amendments because:
   • The amendments create a building that is visually bulky when viewed from the street and adjoining properties;
   • The architectural features in the front elevation and the roof deck dominate the streetscape and are contrary to the preferred character;
   • The amendments do not accord with some of the clause 55 standards and objectives; and
   • The number of windows and the nature of these openings means the roof form does not satisfy DDO1 and presents as a third storey to the street and adjoining properties.
5. The Respondents, which include the three adjoining properties, are concerned that:
   • The amendments represent an overdevelopment of the site with respect to the number of dwellings;
   • The amendments result in a built form that is not respectful of the character and fails to meet the objectives and requirements of DDO1;
   • The amendments result in unreasonable amenity impacts; and
   • The amendment to the basement will result in adverse traffic impacts.
6. I have decided that the amendments should not be allowed as the design is not respectful of the character of the area and fails to satisfy DDO1. Having considered the planning scheme requirements and the submissions and evidence presented, the key issues in this case are:
   • Whether the design is respectful of the character and amenity of the area, including whether the design satisfies the requirements of DDO1 and clause 55; and
   • Whether the proposal will result in adverse traffic impacts.

1. Before turning to the key issues, it is appropriate for me to comment on the nature of the considerations that I must undertake in determining an application under section 87A, particularly as this was a matter that was addressed in some detail in the Applicant's submission.

Nature of considerations under section 87A

1. Section 87A allows a permit holder to request the Tribunal to amend a permit issued at its direction, and the Tribunal may amend the permit "if it considers it appropriate to do so". The nature of the amendments could be 'clarifying' amendments or more substantive amendments to facilitate a reasonable change in the development or use permitted. It is my view that the nature of the changes proposed here fall into the latter category.
2. While addressing the principles applicable to s87A applications in some detail in its submission, the Applicant referred to the Tribunal decisions of Boroondara CC v Noratel Pty Ltd & Ors, The King David School v Stonnington CC and Kaazam Developments Vic Pty Ltd v Port Phillip CC. I agree with the Applicant's submission that a section 87A application is to be determined by the Tribunal on its planning merits; and more substantive design changes should be considered with care to ensure inappropriate outcomes are not allowed[3].
3. In regard to the Kaazam Developments[4] decision, the Applicant submitted that to the extent that it suggests:

... that what is set out in The King David School amount to tests or hurdles that the applicant must satisfy, such decisions are wrongly decided and should not be followed.

1. A copy of the Kaazam Developments decision was tabled and the Applicant specifically referred to paragraph 7 under the heading "The tests of section 87A applications" that quoted a summary of principles[5] derived by the Tribunal in the matter of Michael Palmieri Architects[6]. The Applicant orally submitted the Kaazam Developments decision ought not be followed because there were fundamental errors in it, including that the Tribunal was not told the Michael Palmieri Architects decision was "successfully appealed".
2. If a Tribunal decision has been "successfully appealed", this is of paramount importance to the Tribunal as any determination about an error of law needs to be understood so that every effort can be made to ensure such an error does not occur again in the future. However, whilst the Tribunal decision in Michael Palmieri Architects was set aside by the Supreme Court of Victoria[7], in my opinion the Court order is not a decision that carries significance for the Tribunal's decision making for the following reasons:
   • The Court's order is an order "obtained by consent" (presumably with the consent of the parties in attendance);
   • The Court's order does not identify the alleged error(s) in law; and
   • The Court's order does not provide any reasons, or any findings that the Tribunal did indeed make an error/errors in law.
3. The reference in the Kaazam Developments and Michael Palmieri Architects decisions to "tests" applying to section 87A applications is perhaps an unfortunate choice of words. I agree with the Applicant that this reference is certainly not reflective of the matters that the Tribunal should properly consider in reaching a decision on an application under section 87A.
4. The process under section 87A is not, strictly speaking, a 'repeat application' where there needs to be sufficient justification to depart from earlier findings of the Tribunal. Section 87A provides the Tribunal with original jurisdiction to consider an amendment to a permit issued at its direction, and this is a wide discretion. Hence, the principles that the Tribunal and its predecessors have previously established for repeat applications do not necessarily apply. Nevertheless, the Tribunal has found a degree of caution should be exercised in making substantive changes to ensure inappropriate outcomes are not allowed. In essence, this means that the proposed amendments before me in this case must be assessed on their own merits. I must determine whether they are appropriate having regard to the relevant planning scheme controls and policies and the physical context of the site and surrounds.
5. The Respondents expressed the view that whether the proposed density of apartments in the amendments is an appropriate planning outcome is a key consideration in this case. There is no doubt that the number of apartments proposed in the amendments is greater than what was approved previously by the Tribunal. However, it must be remembered that no planning permission is required for the use of the land for dwellings in a Residential 1 Zone. The planning permission is for the construction of the building that contains the dwellings. As such, the matters I must consider do not include a direct comparison of the number of dwellings contained in the approved and the amended development schemes. Nor must I compare the approved building to the amended building.
6. My decision about the proposed amendments is based upon a consideration of the merits of the proposed building as amended.

The relevant planning scheme controls and policies and the physical context

1. I mentioned earlier that the proposed amendments now before me must be assessed on their own merits, and I must determine whether they are appropriate having regard to the relevant planning scheme controls and policies and the physical context of the site and surrounds. Hence, it is noteworthy that the submissions and evidence presented by the parties agree that, since the Tribunal's earlier decision, there has been no change to the site or nearby land; and no material change to the relevant planning controls or policies. As such, I do not intend to outline these matters in detail as they remain the same as in the previous decision.

Whether the design is respectful of the character and amenity of the area

1. There are two aspects to this issue. The first is whether the proposal is respectful of the character of the area. The second is whether the proposal is respectful of the amenity of the area, particularly the adjoining residential properties that each contain a single detached house. I will deal with each of these in turn.

1. Mr Crowder described the area as an eclectic main road streetscape with varying and robust building forms, styles and materials. Within this existing context, Mr Crowder is comfortable with the proposed architectural expression. Whether the proposed amendments are respectful of the character of the area requires consideration of the existing character and the design objectives and associated requirements of DDO1. DDO1 is of particular relevance as the purpose of the Design and Development Overlay includes:

To identify areas which are affected by specific requirements relating to the design and built form of new development.

1. The design objectives of DDO1 include:
   • To relate the scale and form of any new development to the landform of the coast.
   • To manage the increased pressure for higher buildings along the coast.
   • To protect the amenity and privacy of residential properties.
2. The permit requirements of DDO1 include that building height must not exceed 2 storeys (excluding an attic) and that a roof deck above the second storey of a building requires permission.

1. Mr Peake submitted the amendments are largely contained within the footprint and envelope of the approved building, so there will not be an appreciable difference in terms of building size or mass. The approved design satisfied the Tribunal that it was a two storey building with an attic and therefore satisfied the objectives and permit requirements of DDO1. The building in this amendment application, which is the building I am required to consider, has a very different architectural expression and is a three storey building that does not satisfy DDO1.
2. The architectural style of the building is different and its appearance is significantly different. The materials and finishes are different. The number of windows and balconies have increased. The architectural design of these features has changed. All of these changes create an appreciable difference to the appearance of the building and the contribution that it makes within its surrounds.
3. The proposed amended design has a strong angular form that was described by Mr Barber as overly expressive, with irregular shaped and located windows and balconies and a bold palette of materials. It is a busy design, including extensive openings and differing materials and finishes in the attic level. Hence, the attic level has the appearance of a third storey and the building is a three storey building rather than a two storey building plus an attic as sought by DDO1.
4. Mr Crowder had not turned his mind to the differing materials and finishes in the attic level and, under cross-examination, acknowledged a consistency at this level of the building "has some merit". However, even if this were changed to create a consistent material and finish to the attic level, I remain concerned about the extent of the openings and their design. Mr Crowder said the extent of openings in the attic level is similar to what has been approved. I am not persuaded this is the case as there are more openings, and larger and wider openings. In any event, my consideration is not based upon a direct comparison of the number and design of the openings. As I have already stated, the merits of the amendments need to be considered in their own right.
5. The openings in the front and side elevations of the building (more so than the rear elevation) include long openings, wide openings, and a combination of aluminium windows and doors set back with glass and/or opaque glass balustrading. The extent and design detail of the openings present this floor level as a third storey, which means the amended proposal is a three storey building rather than a two storey building plus an attic.

1. I am not persuaded the amended proposal is sufficiently demonstrable of the identification and factors of an attic in DDO1. It says an attic may contain dormer windows, recessed windows or skylights. In this case the design contains recessed windows but with openings that are quite expansive such that it is my view the resultant presentation has a similar appearance to the levels below in terms of the extent, size and shape of windows and balconies.
2. DDO1 also identifies an attic as a space that "does not contribute materially to the scale and mass of the building form" and provides a series of factors that it says are indicative of an attic:
   • A space which is wholly contained / enclosed within a roof space.
   • A space which is not bordered by any vertical external walls except gable walls.
   • A space which is relatively small in scale in relation to the scale of the remaining built form.
   • The presence of dormer style windows or skylights.
   • Does not contribute significantly to the building form.
   • A space or series of spaces which in total occupy and area no greater than half the floor area of the storey below.
3. The space appears to be wholly contained within a roof space and not bordered by any vertical external walls. It does not include dormer style windows or skylights. Instead there are quite extensive openings for recessed windows and balconies with clear and obscure glazing that, in my opinion, make this level appear as a third floor level of the building. This appearance is not of an attic as identified in DDO1.
4. The previous Tribunal decision acknowledged that the attic level floor area was more than 50% of the floor area below and was inconsistent with the indicators (presumably the two that relate to the size of the space or spaces). The previous decision said that this inconsistency was acceptable because it was a consequence of the overall large size of the building; and because it did not employ obviously artificial measures to increase the floor space such as an inordinately steep roof pitch. Whilst the roof pitch, building envelope and overall size of this floor level may not have significantly changed, I return to the fact that the appearance of each of the elevations has significantly changed with differing materials, finishes and a greater expanse of windows and balcony treatments. All of these changes mean the amended design is a three storey building as opposed to two storeys and an attic. As such, I find the amended design of the attic level now does contribute significantly to the building form and does not satisfy DDO1.

1. It is my opinion that the proposed inclusion of a roof deck with a generously sized and enclosed stairwell structure also contributes to this being a three storey building. Rather than the attic level being at the top of the building, there is now a further structure above the attic that is roofed and extends 2.4 metres higher than roof deck floor level.

1. For these reasons, the amended design of the building is not in keeping with the character of the area, particularly as sought through the objectives and permit requirements of DDO1. Hence, the amendments are not allowed.

1. The Respondents submit the amendments create amenity impacts in the form of overlooking, visual bulk and noise from new plant and equipment required to serve the increased number of dwellings in the building.
2. Plant and equipment noise can be addressed by way of permit condition(s) that require suitable acoustic attenuation and/or a suitable location of such features so as to minimise any unreasonable impact. As such, this is not a reason to refuse the proposed amendments.
3. The Applicant has endeavoured to address the potential for overlooking by screening windows and/or balconies; further setting back and screening the roof terrace; and providing new high boundary fencing. Mr Crowder expressed a number of opinions about the screening, setbacks and fencing, including:
   • 2.4 metre high boundary fencing is not necessary;
   • Moving apartment 13's balcony to the west boundary is not necessary to protect the amenity of the adjoining property to the north, albeit it would improve north solar access to apartment 6 below;
   • A larger west balcony for apartment 13 will create greater but not unreasonable visual bulk to No. 15 Beach Road;
   • No additional setbacks or 1.7 metre high screening of the roof deck is necessary as sightlines prepared by Mr Crowder illustrate that the roof deck will not cause unreasonable overlooking.
4. There is no doubt that the increase in the number of dwellings has resulted in an increased number of habitable room windows and balconies along the side and rear elevations of the building. Whilst this is a significant change for the adjoining properties, it is one that can be managed through appropriate design measures and permit conditions to achieve an outcome that is acceptable in terms of noise and overlooking in particular. An acceptable outcome does not mean there will be no impact on the neighbouring properties, but rather that the impact is a reasonable one.
5. If I had been of a mind to amend the permit, I would have allowed:
   • The higher boundary fencing;
   • Moving apartment 13's balcony to the west boundary and for it to be larger in area; and
   • Modifying the first floor southwest balcony of apartment 8 to minimise the overlooking of No. 15 Beach Road's pool area.
6. I would not have required further setbacks or screening to the roof deck proposed, but at the same time I wish to make it clear to the parties that I have not formed the view that a roof deck is acceptable in this case. I have already expressed concern about the acceptability of a roof deck because of the implications for achieving a design that respects the character. If any new proposal for amendments to the permit include a roof deck, it is my view the acceptability of such a design feature will need to be considered afresh.
7. Similarly, I have not considered the visual bulk impact associated with the changes to marginally increase the floor area of the attic level to the north because of the concerns I have expressed about this level from a character perspective. Again, this will need to be considered afresh if it is included in any new proposal for amendments to this permit.

Whether the proposal will result in adverse traffic impacts

1. Whilst the proposed parking provision for the future residents and their visitors complies with the planning scheme requirements, the Respondents are concerned that there will be overflow on-street parking in the surrounds. They say this potential arises because Beach Road has limited on-street parking in the vicinity of this site; and because the proposed tandem parking arrangement for residents is impractical.
2. I accept the limited on-street parking in Beach Road could result in parking in the nearby streets on occasion, but there is nothing wrong with this. First, the planning scheme does not prohibit tandem parking, so the layout of the car spaces is acceptable. Second, the planning scheme does not suggest that a greater level of car parking than what is required should be provided if the nearby roads have parking constraints. This is not a reason for me to decide to refuse the amendments.

1. For the above reasons, I find the proposed amendments are not acceptable and should not be allowed.

[1] Based on an amended basement plan tabled on day 1 of the hearing

[2] 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 by the parties. I do not recite or refer to all of the contents of those documents in these reasons.

[3] As suggested in the matters set out in King David School such as an applicant seeking to undermine the intent of the original Tribunal decision; or using the process to seek a more favourable outcome or win back development aspirations not supported in the original decision.

[4] Kaazam Developments Vic Pty Ltd v Port Phillip CC [2013] VCAT 1565

[5] Principles said to be derived from The King David School decision and Marone Pty Ltd Joint Venture v Glen Eira CC & Ors (includes Summary) (Red Dot) [2011] VCAT 1650

[6] Michael Palmieri Architects v Yarra CC [2012] VCAT 53

[7] Court order made 30 August 2012 in the matter of Zumpano and Yarra City Council & Ors (S Cl 2012 796)