Victorian Civil and Administrative Tribunal|2007-11-15

The application under s 149 of the Planning and Environment Act 1987 is allowed.
The decision of the Responsible Authority dated 13 September 2007, refusing to grant consent to amend plans by way of secondary consent under condition 2 of Planning Permit 06/00243 is set aside. In lieu thereof, there is substituted a decision that consent be granted for amendment to the endorsed plans in accordance with revised plans (Revision G, dated August 2007) comprising the following amendments:
- Increase in first floor wall heights by 400mm extending from the front of the dwelling to the eastern internal wall of Bedroom 1 at the first floor.
- Southern setback to first floor wall of Bedroom 2 increased from 1.7m to 1.9m.
- Northern setback to first floor wall of Bedroom 2 increased from 1.15m to 1.6m.
- Skylight to the northern elevation.
- Increase in window sizes to the first floor north and west elevations.
- Change to design of ground level west elevation doors to family room.
- Extension and internal alteration to the basement.
- Light wells at ground level to provide light to basement.
- Steel grate added to deck to provide light to basement.
The Responsible Authority is directed to endorse an amended plan in accordance with this order.

Mr Terry Montebello, solicitor, of Maddocks Lawyers.

This matter was the first of three Boroondara matters that came before me in successive weeks by way of Practice Day hearings, where an applicant was seeking to review the decision of the responsible authority to refuse to approve an amendment to plans by way of secondary consent under a permit.
Although the facts varied considerably as between each of the three matters, the responsible authority relied upon a comprehensive legal submission that was common to all matters. The legal submission sought to question or clarify the circumstances under which it was appropriate to use the secondary consent mechanism.
In essence, the responsible authority argued in each case that:
- The contentious change to plans related to an issue that had been in dispute at a prior Tribunal proceeding where the grant of the permit had been determined, or was otherwise relevant to a material decision guideline or consideration under the planning control that governed the permitted development;
- The secondary consent mechanism is therefore not available for such a change, by reference to the criteria in Westpoint Corporation Pty Ltd v Moreland City Council[1] - specifically the third criterion that the change is of no consequence having regard to the purpose of the planning control under which the permit was granted;
- The matter should be dealt with by formal application for an amendment of plans under s 72 of the Planning and Environment Act 1987.
In the course of this argument the responsible authority also raised two further issues, namely:
- The extent to which the third criterion in Westpoint may have been re-formulated by subsequent decisions in APAC Design & Construction v Whitehorse City Council[2] and Begonia Pty Ltd v Frankston City Council[3].
- The extent to which s 87 or s 87A of the Planning and Environment Act 1987 could be used to seek an amendment of plans endorsed under a permit (as opposed to the wording of the permit itself) where secondary consent was not available, having regard to s 72 of the Act, and the comments in Begonia.
It is useful to deal specifically and carefully with the issues raised in the responsible authority's common legal submission before applying the principles to the facts of each case, and I propose to do so in this first matter.

PRINCIPLES APPLICABLE TO THE PROCESS FOR AMENDING PLANS

Many permits contain a condition that the use or development shown on the endorsed plans must not be altered without the consent of the responsible authority. As noted by the Tribunal in other matters, 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. Given that the planning approval phase often occurs relatively early in the design and development phase for a project, it is important that the planning system contains within it a degree of flexibility to allow for the reasonable changes that sometimes inevitably arise as a project proceeds. The secondary consent mechanism is intended, to a large degree, to provide that process.
In Westpoint Corporation Pty Ltd v Moreland City Council[4], the Tribunal constituted by Deputy President Gibson and Senior Member Liston indicated that a change to a use and development may be allowable under a secondary consent provision provided it meets the following requirements:
- It does not result in a transformation of the proposal;
- It does not authorise something for which primary consent is required under the planning scheme;
- It is of no consequence having regard to the purpose of the planning control under which the permit was granted;
- It is not contrary to a specific requirement as distinct from an authorisation within the permit, which itself cannot be altered by consent.
The first, second and fourth of the Westpoint criteria are relatively straightforward, and the basis for these is explained in Westpoint. It is the third of the criteria that has attracted some recent debate although, as will be seen, I consider that Westpoint still represents the correct statement of principle for when secondary consent is appropriate. When this third criterion is looked at carefully in context:
- Whilst sometimes paraphrased as the "no consequence" criterion, the reference in Westpoint was to the change being of no consequence "having regard to the purpose of the planning control under which the permit was granted". These qualifying words are critical to its meaning and application;
- It is not the extent of the change, in a physical or absolute sense, which must necessarily be of no consequence. The comments in Westpoint immediately before and after the statement of the four criteria expressly acknowledged this - for example:

"The scale of the change is not relevant per se. The change need not simply be minor to be allowable under as secondary consent"[5].

"Change within the framework of the permit can be quite substantial provided ... the criteria relevant to secondary consents are observed"[6].

The comments in Westpoint also expressly contemplated the (then) new s 72 of the Planning and Environment Act 1987 which modified the processes available under the Act for amending plans, and stated:

It should not automatically be assumed that all changes to a use or development can only occur via this mechanism [ie. s 72]. 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[7].

It is also worthy to note that the principles in Westpoint are derived from the consideration of a number of earlier cases, including 155 Domain Road Pty Ltd v Melbourne City Council[8] and, in particular, Mentone Mansions Pty Ltd v Kingston City Council[9]. Amongst the useful principles discussed generally in Mentone Mansions (which are picked up directly or indirectly in the Westpoint criteria) are the following:
- The changes for which secondary consent might be considered should not be measured as being minor or trivial in an absolute sense, but rather need to be considered in the context of the purposes of the control that led to the grant of the permit[10]. If the particular planning control was concerned with say car parking, then the question ought to be considered in that context. A change to another factor (eg internal building layout) may be seemingly substantial in scale, but still capable of being dealt with under secondary consent on the basis that it was not 'of consequence' having regard to the primary factor (in this example, car parking) in the original permit consideration.
- Even if the proposed change does affect a primary factor relevant to the original permit consideration, that does not of itself mean that secondary consent cannot be given. The 'consequence' of the change must still then be considered vis-à-vis the purpose of the planning control. The change may still be of no consequence having regard to that purpose, based on the consideration of potential impact or detriment and/or the ability of an ordinary person to perceive or discriminate the change[11].
- There is a continuum in the possible changes that must be considered in determining whether secondary consent is appropriate.
In the Directions Hearing in APAC Design & Construction v Whitehorse City Council[12], DP Gibson commented upon this 'continuum' as follows:

Changes to plans under a permit need to be considered in a context of a continuum. At the lower end there are minor changes that have no external impact and are entirely uncontentious. Changes of this nature are best considered by way of secondary consent without the need for notification, the involvement of third parties or an extensive formal process. At the other end of the continuum are major changes that will have external impacts and affect third parties. Changes of this nature should be considered in the context of an application to amend the permit under s 72 of the Act. This process enables third party participation in the decision-making process, unlike the secondary consent process.

It is the cases in the middle of the continuum that raise questions about which process should be used. There is no hard and fast rule for determining this. Rather, there are a set of criteria, which the Tribunal has summarised in the Westpoint case, that will provide guidance. It will be a question of judgment in each case as to whether changes to plans meet those criteria.[13]

It can be seen that the third criterion in Westpoint is clearly not directed to consequence or no consequence in an absolute sense but, as the criterion itself states, whether the change is "of no consequence having regard to the purpose of the planning control under which the permit was granted". It can equally be seen that, just because a proposed change is relevant to the purpose of the planning control - for example, arising under a decision guideline - that does not of itself automatically rule out use of the secondary consent process. It is a matter of objective judgment as to whether the change is not material or of 'no consequence' having regard to that control, or whether it is of sufficient consequence to warrant a more formal process that potentially introduces third party participation. Again, the physical scale of the change is not necessarily conclusive of what is or is not 'of consequence', nor is the fact that there may have been an earlier objector who may simply not like the change. A proper consideration or judgement may involve an objective consideration of possible impact or detriment arising from the change, or the extent to which the change will be perceived, or other relevant factors. Moreover, in considering possible impact or detriment, the change must be considered vis-à-vis the permission already granted and the existing plans, rather than by comparison to the 'no permit' scenario. The secondary consent process does not provide a mechanism to re-open more broadly based issues relating to the primary consent given,

Have the Westpoint criteria been reformulated by more recent decisions?

In the merits hearing for APAC[14], Member Hewet had commented:

... a distinction needs to be drawn between a proposed change or changes to plans under a permit which on the one hand are of no consequence and can be dealt with by way of a secondary consent, and changes which may have an impact but which, after consideration of all relevant issues, including a balancing of policies and the consideration of the opinions of affected parties, be found to be acceptable or reasonable[15].

It was argued initially that this comment expressed a more restrictive view of the third Wespoint criterion. Implicitly, it was also suggested that, if the change to plans was directly relevant to the purpose of the planning control under which the permit was granted at all, or raised a consideration of affected third parties at all, then it should not be dealt with under the secondary consent power[16]. I do not believe APAC should be read in that way. It appears to me that the member in APAC was doing no more than expressing the two ends of the continuum set out by DP Gibson at the APAC directions hearing[17]. As I have indicated, within the middle of this continuum, it would be possible to form a view that a change is acceptable and of no real consequence despite it relating to the purpose of the planning control for which the permit was granted. This is the matter of judgment that needs to be considered, having regard to the nature of the change to plans in its context.
On a proper reading, APAC expressly endorses, and does not purport to reformulate, the Westpoint criteria.
In Begonia v Frankston City Council[18], Senior Member Byard referred to the same comment in APAC. He indicated that he did not recognise the distinction drawn, nor did he accept that there is a rule or test that only changes of no consequence can be granted by means of a secondary consent.[19] He doubted the correctness of such a restricted view and thought it more appropriate to apply a test such as that contained in the now repealed s 62(3) of the Planning and Environment Act 1987 - namely that the modification must still comply with the provisions of the permit and the provisions of the planning scheme.[20]
It was argued before me that Begonia therefore cast serious doubt on the third Westpoint criterion. I am not convinced that this is necessarily the case, for the following reasons:
- Begonia only refers to the one isolated paragraph quoted from APAC where Member Hewet had (perhaps unfortunately) used the short-form reference to the Westpoint criterion of 'no consequence', without qualification. It is clear from the immediately preceding paragraphs in APAC (not referred to in Begonia) that the Tribunal in APAC was expressly applying the Westpoint criterion in its full context (ie no consequence 'having regard to the purpose of the planning control');
- Begonia also appears to consider the reference in APAC to 'no consequence' as being a reference to consequence in an absolute or physical sense. The Tribunal in Begonia does not refer at all to Westpoint (nor the other leading decisions on secondary consent referred to above) or to other parts of APAC, where it has been consistently stated that secondary consent can be used for proposed changes, large and small, and where the physical scale of change is not relevant per se, provided the relevant criteria are met. It is therefore by no means clear that Begonia is expressing a view fundamentally different to Westpoint on this issue.
The 'out of context' reference to APAC in Begonia, and the absence of any reference to Westpoint, is unfortunate. To the extent that Begonia might be considered to express a different view to Westpoint, it ought not to be followed on this issue and should not be considered to have reformulated the Westpoint criteria. I certainly do not agree with Senior Member Byard where he has suggested that it would be appropriate to simply re-instate a test like that contained in the now repealed s 62(3)[21] to consider secondary consent. The parliamentary intent that underscored the repeal of s 62(3) must be respected. I consider that the Westpoint criteria now contain the appropriate test, and set out the relevant principles that govern when the use of secondary consent is appropriate.

What process ought to be used to amend endorsed plans when secondary consent is not available?

The further issue raised in the legal submissions is the appropriate process for amending a permit, or plans endorsed under a permit, where the proposed change falls outside the parameters of secondary consent having regard to the Westpoint criteria, or where there is no trigger for secondary consent in the relevant permit.
As indicated in APAC [22], the process now offered by Division 1A of the Planning and Environment Act 1987 (ie s 72 and following) represents the mechanism intended to be utilised in most instances where secondary consent is not available. Section 72 invokes a process not dissimilar to an initial permit process - comprising a formal application, referral and notice, and the prospect of third party objections and rights of review. The potentially cumbersome nature of this process is not without its critics - particularly for relatively minor changes to plans arising in the course of development.
However, s 72 is not necessarily the only process available to amend permits and plans. The Planning and Environment Act 1987 contains a number of complementary and overlapping processes which together make up the overall planning system. In particular, s 72(2)(a) expressly states that the process triggered under that section does not apply to a permit issued at the direction of the Tribunal. A question therefore arises as to whether s 87 or s 87A is also available to amend endorsed plans - either generally as an alternative to s 72, or in circumstances where the permit was issued at the direction of the Tribunal and s 72 is not available.
In Begonia, Senior Member Byard expressed a view that, whilst s 87 was available to amend the wording of a permit, the provision did not provide a process to amend plans endorsed under a permit. In reaching this view, the Senior Member conceded that there has been a difference of opinion within the Tribunal on this issue, but he preferred to follow his earlier decision in Grosios v Monash City Council[23] that had reached a similar finding. The Senior Member also found additional comfort in s 72(3) of the Planning and Environment Act 1987 that provides that, in that section, a reference to a permit includes any plans, drawings or other documents approved under a permit. He believed that this provision artificially extended the definition of the word "permit" for the purposes of that section alone, and was therefore to be contrasted with s 87 that contained no similar deeming provision.
With respect, I do not agree with the decision in Begonia. I believe it represents a minority view, and do not believe it ought to be followed on this issue. In my view, the process under s 87 (and, by analogy, the new s 87A) can be used to amend plans endorsed under a permit.
Whilst I do not believe that Grosios was correctly decided, that decision itself turned on the importance of the then existence of s 62(3) of the Act[24], when there were more clearly separate processes under that section and the former ss 72 and 73 for amendment of plans or permits. Those provisions have been repealed. Begonia should not therefore rely on Grosios as the basis for its support, and proper effect must be given to the now prevailing legislative regime.
I do not believe that s 72(3) 'artificially extends' the definition of a "permit" under that section so as to include plans approved under the permit. I think that sub-section is more in the nature of a provision 'for the avoidance of doubt' that clarifies what is covered by the provision. This is particularly self-evident in that the new s 72 was merging and modifying the former s 72 and s 62(3) amendment processes, and it needed to be clear that the new process covered both permit wording and permit plans.[25]
The absence of a similar 'avoidance of doubt' provision in s 87 is unsurprising, given the timing and circumstances of the introduction of each section[26]. Moreover, there is nothing in the two sections (ie ss 72 and 87) which suggests that they are mutually exclusive. Indeed, s84(4) - which provides that nothing in s 87 affects the power to amend a permit under s 72 - infers that there are complementary powers.
For these reasons, I do not believe that the reference to a "permit" in s 87 is constrained to exclude plans endorsed under a permit. This is particularly the case where a permit preamble expressly refers to plans, or a permit condition provides for endorsed plans that once endorsed form part of the permit. These permit references ought to be given their plain meaning and intent. The words of the permit and the endorsed plans under the permit are together integral to the permission granted and one is ineffective without the other. In my view, these therefore together form the "permit" for the purposes of s 87 and other statutory processes for permit amendment.
There is nothing, in my view, that prevents a permit from an express "incorporation by reference" of plans to complete the overall permission granted, even if these plans are subsequently prepared and endorsed.
Begonia concedes the farcical nature of a distinction between permit words and permit plans for the purpose of s 87 by noting that a permit condition could simply be amended to change the words of the condition to refer to different plans, and thereby amend the plans by default under a s 87 process. Indeed, in Begonia, this 'device' was used by the Tribunal to get around its own adverse interpretation.
As indicated, s 72(2)(a) provides that the section cannot be used to amend a permit issued at the direction of the Tribunal. Even putting to one side the issues discussed above, s 72(3) unambiguously provides that this reference to "permit" in s 72(2)(a) includes permit plans. The s 72 process is therefore not available to amend permit plans issued at the direction of the Tribunal. In my view, it would create a farcical situation if the s 87 process also cannot be used to amend those permit plans. An applicant would be left in a virtual lacuna in such a circumstance, with no process to amend endorsed plans, and would have to apply for a fresh permit for a development that might already be under construction. Parliament cannot have intended such a hiatus, particularly given the recent introduction of s 87(6) and s 87A which together expressly clarify that the Tribunal has power to amend a permit issued at its direction. Sections 72 and 87 should therefore be read as being complementary processes. This I think bolsters the view that the reference to "permit" in s 87 must include permit plans.
For all of these reasons, I am not persuaded that the opinion expressed in Begonia is correct, and I do not believe that decision ought to be followed. I think that the better view is that ss 87 and 87A provide an available alternative process to amend a permit, including plans endorsed under that permit, assuming of course that any other statutory pre-conditions to the use of the s 87 process are met.
Applicants should not however see ss 87 or 87A as necessarily providing a fast-track process for amending plans, as compared to s 72. Given that ss 87 or 87A will commonly be used where the Westpoint criteria for secondary consent are not met or the permit was previously issued at the direction of the Tribunal, it is likely in many instances that third party interests may be affected and the Tribunal will in those cases require notice of the proceeding to be given.

APPLICATION OF PRINCIPLES TO THE FACTS OF THIS CASE

Turning now to the application of the principles to the facts of this case, the matter before me has a messy history. Following an application to review conditions in 2006, a modified permit was issued at the direction of the Tribunal for the construction of a dwelling at 18 St Johns Avenue, Camberwell. In the course of the application for review, the applicant had sought to substitute an amended plan. The Tribunal did not allow the substitution due to its lateness, and was not then willing to make changes "on the run"[27]. Interestingly, no objector had lodged an application to review the decision to grant a permit, but three objectors participated in the application to review conditions.
A modified permit was issued on 15 December 2006 at the direction of the Tribunal. On 7 February 2007, the applicant sought amendments to the endorsed plans similar to those 'late' changes sought at the prior hearing. The responsible authority initially treated this as a request by way of secondary consent under condition 2 of the permit. The changes sought were as follows:
- Increase in first floor wall heights by 400mm extending from the front of the dwelling to the eastern internal wall of Bedroom 1 at the first floor.
- Southern setback to first floor wall of Bedroom 2 increased from 1.7m to 1.9m.
- Northern setback to first floor wall of Bedroom 2 increased from 1.15m to 1.6m.
- Skylight to the northern elevation.
- Increase in window sizes to the first floor north and west elevations.
- Change to design of ground level west elevation doors to family room.
- Extension and internal alteration to the basement.
- Lightwells at ground level to provide light to basement.
- Steel grate added to deck to provide light to basement.
Only the first of these changes is considered to be contentious, and I do not propose to comment directly on the others. Despite there being no automatic third party rights with respect to a secondary consent application, the responsible authority sought the views of surrounding residents. A 29-page officer report then carefully considered the application for secondary consent. The report noted four objections and 44 letters of support, and ultimately recommended secondary consent be granted for all changes. However, on 3 September 2007, the Council refused consent and resolved to advise the applicant to lodge an application under s 87 of the Planning and Environment Act 1987. The Council provided no grounds for its refusal.
The applicant subsequently made an application under s 87. However, at an initial Directions Hearing, DP Gibson queried the use of a s 87 process having regard to the responsible authority's refusal of an application for secondary consent The applicant subsequently brought this application under s 149(1)(a) of the Planning and Environment Act 1987 seeking to contest that refusal[28].
As indicated, all but one of the proposed changes are considered by the responsible authority to be of no consequence, and were not seriously contested at the hearing before me. The only contentious change is considered to be the proposed increase in the height of the upper storey wall from 1.9m to 2.3m (an increase of 400mm). It was suggested by Mr Montebello for the responsible authority that this change was 'of consequence', as it was in dispute at the prior Tribunal hearing, and was relevant to two decision guidelines in Clause 54 of the Boroondara Planning Scheme (being the relationship of building height to existing adjacent buildings, and visual impact). The responsible authority therefore argued that the matter could not be dealt with by way of secondary consent at all. Mr Montebello argued that the responsible authority's prior advice that the matter should be dealt with under s 87 of the Planning and Environment Act 1987 was wrong, and the applicant should now make a formal application for amendment under s 72.
I will deal with this latter aspect first. In my view, the responsible authority was clearly wrong in suggesting a s 72 process was now required. The permit in question was issued at the direction of the Tribunal, and s 72(2)(a) therefore prevents the use of that process. Mr Montebello conceded as much in the second Boroondara matter before me the following week. Given the view I have expressed on s 87 and Begonia, I believe that s 87 (or the new s 87A) would be an appropriate process for the applicant to follow in this case if the application for secondary consent fails.
Ultimately, however, I find the facts of this case present as a matter that is appropriate for a secondary consent process, and that secondary consent ought to be granted.
I agree with Mr Montebello that the upper level wall height that the responsible authority considers to be contentious was raised as an issue at the initial Tribunal hearing. However, it is not apparent from my careful reading of the decision in that case that the upper level wall height was of such 'substance' to the Tribunal (as now argued by the responsible authority) that an increase in part of the upper level wall height by 400mm must be considered fundamentally 'of consequence' having regard to that decision.
I also agree with Mr Montebello that the wall height that the responsible authority considers to be contentious was relevant to two decision guidelines in Clause 54 of the Boroondara Planning Scheme, being the relationship of building height to existing adjacent buildings, and visual impact. However, given the views I have expressed in relation to the Westpoint criteria above, and my reference to Mentone Mansions, this is not sufficient in itself to remove the application of the secondary consent process. I also do not agree with Mr Montebello that the mere fact that a neighbour thinks that he is affected by the increased wall height is sufficient to negate a secondary consent process. The responsible authority was still obliged (as I am on review) to make an objective judgement on whether the proposed change is of consequence having regard to those relevant controls.
The responsible authority gave no substantive grounds for its refusal, and has instead seemingly relied on an issue of 'process' based on the 4 objections received from its informal notification process. I think the better view as to how this judgement should be exercised in this instance is to be found in the comprehensive office report I referred to earlier. In particular:
- The officer report refers carefully to the Westpoint criteria, and to the continuum referred to in APAC. It acknowledges legal advice to the effect that this application falls somewhere in the middle of that continuum and that it is open to the Council to process the proposed changes under the secondary consent condition;
- The officer report expresses a view that the proposed changes are not inconsistent with the prior decision of the Tribunal;
- The officer report contains a careful assessment of the merits of the proposed 400mm increase in part of the upper wall height having regard to possible impact on streetscape and neighbourhood character, visual impacts on adjoining properties, daylight and solar access, and overshadowing.
- The officer report considers elevations and the proposed wall height vis-à-vis the adjoining properties, and notes compliance well within with ResCode standards for setbacks. [The applicant also produced elevations and noted his increased wall height would be approx 1.5m below ResCode standards whereas the neighbouring 'objector' property was approx 1m over the ResCode standard.]
The overall conclusion of the officer report is that all of the changes can be supported by secondary consent, and consent is recommended. Importantly, the officer report states:

It is considered that the proposed changes are not of consequence in the context of the development as allowed under the permit. In forming this view, a full assessment of the merits of the proposed changes has been undertaken having regard to the planning controls which apply, including clause 54.

In this instance, and in the absence of any real planning evidence to the contrary, I agree with the officer assessment. Mr Montebello's legal submission was very helpful to the principles I have set out. However, his planning submission on whether the changes here were really of consequence having regard to the relevant planning controls was stridently put, but ultimately thin and unconvincing. I have carefully reviewed the plans and elevations, and the relationship of the applicant's dwelling to the surrounding dwellings. I do not believe the change in part of the upper wall height by 400mm is really of consequence in this case having regard to the changes proposed in the context of the governing planning controls and what has already been approved. In my view, the slight increase in bulk will be difficult to perceive visually, and will not result in any impact to the neighbouring landowners materially different to that authorised under the existing plans. I have therefore made orders in favour of the applicant.
Although this matter has a messy history, it might be said that the applicant in this case has not always helped his cause. This whole saga arose because Mr Zuzek was late in attempting to substitute amended plans at the original Tribunal hearing, and the Tribunal and responsible authority were not able to deal then with the changes 'on the run'. Similarly before me, Mr Zuzek attempted to have me endorse at least one other change to plans not in his application for secondary consent. Again, neither I (nor Mr Montebello for the responsible authority) felt able to deal with that change 'on the run' and I have declined to include it in my orders. Given the importance that attaches to permit plans and the difficulties in amending those plans, it is critical that permit applicants take care in the initial preparation of plans and equal care in the articulation of any subsequent changes to those plans.

[2] [2006] VCAT 594. This was the merits hearing. The earlier directions hearing is also relevant, and was also reported separately as a red dot decision at [2006] VCAT 101.

[11] Mentone Mansions at para 27. The example given there was that, even if building height was a material factor under the planning control, a proposed change in height may still be of no consequence having regard to that factor if the change could not be readily discernable - eg. a change from 3m to 3.1m being unlikely to create any increased detriment, as compared with a change from say 3m to 4.5m.

[16] In fairness, it should be noted that Mr Montebello on behalf of the responsible authority did not seek to adopt this more restrictive view.

[17] Indeed, Member Hewet expressly refers to the continuum in an earlier passage at para 10 of his decision.

[21] Begonia also at para 49. Some principles common to the former s 62(3) and Westpoint are nonetheless contained in the more refined Westpoint criteria.

[25] In reaching this view, I have confined myself to a consideration of permit plans. I have not considered, nor was it argued before me, whether the reference in s 72(3) to other documents approved under a permit should be similarly construed.

[26] Section 87 was introduced with the initial Act in 1988, whereas s 72 was completely re-substituted in 2004 along with the repeal of s 62(3).

[27] Zuzek v Boroondara City Council [2006] VCAT 2284 at para 9.

[28] The s 87 application is adjourned to administrative mention after the s 149 application is determined.

Zuzek v Boroondara CC (Red Dot) [2007] VCAT 2174 (15 November 2007)

Planning and Environment Act 1987 ss 72, 87, 149; amendment of plans endorsed under permit; circumstances when 'secondary consent' available; decision in Westpoint Corporation v Moreland CC [2005] VCAT 1049 discussed and applied; whether proposed change 'of no consequence having regard to the purpose of the planning control under which the permit was granted'; whether s 87 available to amend plans endorsed under a permit

Zuzek v Boroondara CC

At a glance

Court

Decision date

Source

Judgment (41 paragraphs)

Parties

Cases Cited (2)

Zuzek v Boroondara CC (Red Dot) [2007] VCAT 2174 (15 November 2007)