West of Elgar Residents Association Inc

Whitehorse Council and WERA joined forces to refuse to agree to amended plans going to VCAT and Deputy President Helen Gibson agreed. So the application has gone back to council. "This is what we have been asking for for years," says Mary Drost of Planning Backlash. "Bring this to the attention of your council and urge them to do the same. The precedent has now been set."

Geoff White, WERA President, refers to

"the letter that WERA and residents of Everton Grove sent to VCAT when the developer came up with 68 changes and a “ complete redesign” after the initial application for 6 townhouses and a 20 apartment block across 4 blocks in Everton Grove; Surrey Hills was refused a planning permit by Council.

He says,

"When Whitehorse planning officers and Council saw the resident letter asking VCAT to not hear an appeal on the amended plans because of the extent of change they decided to join the Hearing in support of the residents application to VCAT. The practice day Hearing on Friday 25 Oct took 1 hr 15 minutes but the decision of Deputy President is what we required. The developer yesterday advised the parties that they will not proceed on the original planning application to a VCAT hearing listed to start 13 November.

We think this is the first time Whitehorse has opposed amended plans before the scheduled VCAT hearing date."

Letter to VCAT from West of Elgar Residents Association Inc

October 14, 2013.

The Principal Registrar
VCAT - Planning & Environment List
55 King Street
Melbourne, VIC., 3000

Dear Principal Registrar,

Re: VCAT Reference No: P830/2013, for 8, 10, 12 and 14 Everton Grove, Surrey Hills, VIC., 3127.
1 Application to strike out the appeal.
Earlier this year, the Whitehorse Council refused under delegation to grant a permit to Gardencity Australia Pty Ltd to build a four storey 20 apartment and 5 three storey and 1 two storey town houses development on the blocks at 8, 10, 12 and 14 Everton Grove. Subsequently, Gardencity has appealed to the Victorian Civil & Administrative Tribunal (VCAT) against that Council refusal, and in support of their appeal have submitted extensively revised plans for that site.
The plans submitted on October 1, 2013 for consideration at VCAT include:
- a 4 storey apartment block of 26 apartments, an increase of 6 on the 20 listed in the original application;
- four two storey town houses instead of 6 proposed; but
- a total of 30 dwellings on the four sites – an overall 15% increase on the numbers of dwellings proposed previously.
- The plans submitted on October 1, 2013 show a significantly different building configuration and land use to that rejected by the Whitehorse Council.
- The developer has submitted a listing of 68 changes they have made to the proposal rejected by Whitehorse Council.
- The developer has advised (in the ninth point of their 68 advised changes) that

“The design response has been completely revised to reflect the design intent of the new architect.”

These 68 changes are so extensive that the development submitted to VCAT and to the parties to the appeal is that of a new development proposal and not merely changes to the original proposal.
Planning decisions in the City of Whitehorse are the role and responsibility of the Whitehorse Council. The development provided on October 1, 2013 is so significantly different from the one rejected by Whitehorse Council, including its significant increase in dwelling numbers and extensive other changes proposed, that it is a new proposal and one we think should be first considered by that Council.

Accordingly, we respectfully request that VCAT strikes out the appeal P830/2013.

2 Application to VCAT to refuse the substitution of plans

If VCAT decides to strike out the application P830/2013, for 8, 10, 12 and 14 Everton Grove, Surrey Hills, VIC., 3127, this request does not apply, but if VCAT chooses to continue the hearing, the undersigned accordingly respectfully request that the VCAT refuse to allow the substitution of plans.

Our reasons for this request follow directly VCAT’s Practice Note PNVCAT9 [March 2012] which states:

“3 As a guiding principle, amendments should not be used to materially increase the scale or intensity of a proposal or to introduce significant new aspects that have not been considered by the responsible authority or primary decision-maker at first instance.”

As the applicant advises, their proposal of October 1, 2013 has:

1. Increased the number of dwellings in the development by 15% - a material increase in the scale and density of a proposal; and
2. “The design response has been completely revised to reflect the design intent of the new architect.” and so has introduced significant new aspects that have not been considered by the responsible authority or primary decision-maker at first instance.
3. The developer has submitted a listing of 68 changes they have made to the proposal refused by the responsible authority, the Whitehorse Council.

Accordingly, as the plans of October 1, 2013 are a material increase in the scale and density of the plans considered by the responsible authority, substitution should not be permitted.

We understand, as the Practice Note indicates, the appeal can still continue and can consider the original plans that the responsible authority refused.

3 Saving time and resources for all parties

The Practice Note also states that:

“2 Permit applicants sometimes seek to amend an application or the plans that form part of an application. The ability to amend plans introduces certainty to the planning and environmental approval process and saves time and resources of authorities, applicants, objectors and the Tribunal by enabling improvements to be made to a proposal without a new application being required.

Key elements of this principle are that the applicant has made genuine efforts to compromise and improve the development.

We consider the increased density, increased scale, almost unchanged visual bulk, unchanged monolithic appearance of an extensive block in a distinctly different streetscape, retained four storey apartment block, and the overall 15% increase in dwellings do not comply with this principle.

The responsible authority (the Whitehorse Council) and the other parties to the appeal must all commit extensive time, resources and money to review the new proposal. Accordingly, the proposal submitted by the applicant fails to meet the Practice Note’s requirements of introducing certainty by saving time and resources. On these further grounds, the undersigned respectfully request that VCAT refuse the applicant permission to substitute plans for those initially considered by the Whitehorse Council.

Yours sincerely,

West of Elgar Residents Association Inc
[Address and contact details]

VCAT Administrative decision response

[Some changes to formatting for easier reading - limited to emboldening of some headings and phrases]

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
PLANNING AND ENVIRONMENT LIST VCAT REFERENCE NO. P830/2013

CATCHWORDS
VCAT Practice Note PNPE9 – Amendment of Plans and Applications – application to amend permit application by substituting amended plans – cumulative effect of changes – whether amended plans represent a significantly different proposal

APPLICANT Gardencity Australia Pty Ltd
RESPONSIBLE AUTHORITY Whitehorse City Council
RESPONDENT Janine Dankesreither & Others
SUBJECT LAND 8 - 14 Everton Grove
SURREY HILLS VIC 3127
WHERE HELD 55 King Street, Melbourne
BEFORE Helen Gibson, Deputy President
HEARING TYPE Hearing
DATE OF HEARING 25 October 2013
DATE OF ORDER 29 October 2013
CITATION

ORDER
1 The application by the applicant to amend planning permit application WH/2012/333 by substituting amended plans prepared by Noxon Giffen Architects dated 30 September 2013 is refused.
2 The application by objectors to strike out this proceeding is refused.
3 It will be sufficient compliance with the requirements of clause 24 of VCAT's practice note – PNVCAT2 Expert Evidence for parties to file and serve the expert witness statements upon which they intend to rely at the hearing by no later than 1 November 2013.

Helen Gibson
Deputy President

APPEARANCES:
For Gardencity Australia Pty Ltd Ms Roz Wilson, solicitor and town planner
For Whitehorse City Council Ms Kim Piskuric, solicitor, of Maddocks
For Geoff White – West of Elgan Residents Association Mr G White, in person
For R B Ferguson R B Ferguson, in person
For Elizabeth Meredith & Others Ms E Meredith, in person
For Philip Andrew Jeremy Derham Mr P Derham, in person

REASONS
What is this proceeding about?

1 This proceeding is an application for review under section 77 of the Planning and Environment Act 1987 against the council’s refusal to grant a permit for construction of multi dwellings on the subject land and reduction of visitor car parking. A hearing is scheduled on 13 November2013 for three days. The applicant/permit applicant (Gardencity) has given notice of its intention to amend the permit application by substituting amended plans. The council and objectors oppose the proposed amendment. When there is strong opposition to the substitution of amended plans, it is usually appropriate to resolve the issue before the final hearing to provide certainty for all parties as to the basis on which the Tribunal will make a decision. The purpose of the practice day hearing was to consider whether to amend the permit application.

2 The form of development shown on the plans, which currently form part of the permit application, show five detached, three storey dwellings with a mansard style roof spaced across the full width of the Everton Grove frontage. There is a further two storey detached dwelling with a pitched roof form located behind unit 1 close to the southern boundary of the site. Behind units 2, 3, 4 and 5, is a three storey residential building comprising 20 dwellings with a basement car park. The residential building has a pitched roof form and is set back 3 metres from the rear western boundary of the site. Units 3, 4 and 5 have separate driveway access from Everton Grove. The balance of the units and the residential building are accessed from a common driveway off Everton Grove between units 1 and 2 at the front and between unit 6 and the residential building at the rear.

3 The amended plans show four two storey dwellings with pitched roofs, located across the front of the site fronting Everton Grove. Two of these townhouse units are freestanding and two are attached. At the rear of these dwellings is a three storey residential building with a flat roof profile containing 26 apartments with a basement car park. Entry to the basement is via a driveway parallel to the southern boundary with a landscaping set back of 2 metres. Car parking for the four townhouses is by way of separate crossover for each dwelling from Everton Grove.

4 The council and objectors submit that the amended plans are not in accordance with the spirit or intent of the opportunities offered to amend a permit application under the Tribunal’s Practice Note PNPE9 – Amendment of Plans and Applications.

5 For its part, Gardencity submits that the overall height has been reduced slightly; setbacks along the rear (western) boundary remain the same; other setbacks have been reduced slightly; there has been a slight increase in the footprint of the building of 75m2 but this is not significant or substantial in the context of a site of 2902m2. Gardencity submitted that it was not the number of changes that was relevant but the quality of changes. The redesign of the proposal has been a direct response to the concerns expressed by the responsible authority and objectors. To reject the application to amend the permit application and substitute amended plans would only result in a further permit application to the council and a 12 month delay, which would be unfair to the applicant.

6 Gardencity also said that attempts to amend the plans at the council level pursuant to section 57 of the Planning and Environment Act 1987 had been rejected by the council. It submitted that:
The amended plans should not have been a surprise to Council or the main objectors. At the public meeting on 13/2/13 … Gardencity [said it] would change the plans to address many of the issues raised by Council & objectors based on expert advice, which we have now done albeit through the VCAT process.
If Council had given us a realistic timeframe for Section 57, then we wouldn’t be wasting VCAT's time at a Practice Day. Council rejected our request for maximum three months to provide amended plans. I recall one month being their tolerance…

7 Having regard to this submission, it is relevant to look at the background to the way in which the permit application was dealt with at the council level.

Background to permit application

8 The permit application was lodged on 16 May 2012. The plans initially forming part of the application showed a development of seven townhouses and one three storey building comprising 15 dwellings with basement car park (total 22 dwellings).

9 In June 2012, the council requested further information. An extension to the further information due date was granted in August 2012 with the new due date being 21 November 2012. In its request for further information, the council also provided a preliminary assessment of the proposal and identified a number of planning concerns about a wide range of matters. It advised that council “will not support your application in its current form”.

10 On 19 October 2012, Gardencity responded to the request for further information and submitted amended plans. The council amended the permit application pursuant to section 50 of the Planning and Environment Act 1987 so that the amended plans now form part of the permit application. The council wrote to Gardencity again on 9 November 2012 indicating that it still had concerns about the amended plans.

11 The permit application was advertised and attracted 104 objections. A consultative meeting was held on 13 February 2013, which was attended by 57 objectors.

12 Following the meeting in February 2013, there was further dialog between the council and Gardencity in which Gardencity indicated it wished to submit further amended plans. By email dated 14 February 2013, the council advised Dwayne Singleton of Gardencity that it must lodge a section 57 amendment request by 20 February 2013 indicating timelines in which reviews and amended plans can be expected, and if possible the likely extent of changes. The council also advised that in the event that Gardencity elected not to make a section 57 amendment request, or any substantial changes to the proposal, council would proceed to determination of the application “as outlined at last night’s forum” (ie it would refuse the application).

13 On 15 February 2013, Dwayne Singleton of Gardencity advised the council that a section 57 request could be lodged by next week (ie by 20 February 2013) provided revised plans are submitted within 3 months of the section 57 request being made. The delay was due to the need to refer the project to experienced experts “and the revision of the plans typically involves many meetings and redesign hours”. Mr Singleton also noted that: “As we have not shown the plans to experts, it is impossible to guess the extent of change”.

14 The council responded on 19 February 2013 to say that it was resolved to proceed to determination of the application in its current form. Notice of the council’s refusal to grant a permit was issued on 7 March 2013.

15 The amended plans, which Gardencity now wishes to substitute for the plans forming part of the permit application, have been prepared by architects, Noxon Giffen, whereas the current plans appear to have been prepared in-house by Gardencity Australia Pty Ltd. The amended plans are dated 30 September 2013. Notice of the application to amend the permit application was given on 1 October 2013.

Practice Note PNPE9

16 The Tribunal’s Practice Note PNPE9 – Amendment of Plans and Applications sets out when the practice note applies, procedures to be followed and what considerations the Tribunal will take into account when deciding whether to amend an application to which the practice note applies.

17 The introduction to the practice note states as follows:

2. Permit applicants sometimes seek to amend an application or the plans that form part of an application. The ability to amend plans introduces certainty to the planning and environmental approval process and saves time and resources of authorities, applicants, objectors and the Tribunal by enabling improvements to be made to a proposal without a new application being required.

3. As a guiding principle, amendments should not be used to materially increase the scale or intensity of a proposal or to introduce significant new aspects that have not been considered by the responsible authority or primary decision-maker at first instance.

4. It is also important to give the responsible authority and those potentially affected by amended plans a reasonable opportunity to consider them before a hearing.

5. Plans may be amended following consultation or mediation between the parties, or as a result of improvements suggested by expert witnesses, or to respond to issues raised by the responsible authority or objectors during the permit process.

6. This practice note sets out the procedures to be followed by applicants when submitting amending plans or seeking to revise other aspects of an application; and details the considerations the Tribunal will take, when making a decision whether to amend an application in a proceeding.

18 Clause 22 provides as follows:

22. The decision of the Tribunal to amend an application to which this practice note applies is discretionary. In exercising its discretion, the Tribunal may consider the following matters, as relevant:

(a) the extent and impact of the changes;
(b) whether all parties and potentially affected persons have been given reasonable notice of the application in time to consider the proposed amendment before a hearing;
(c) whether the time limits in this practice note have been complied with and any prejudice to a party or potentially affected person arising from any non-compliance;
(d) whether the amendment improves the proposal or responds to issues that have been raised in the course of the decision making process;
(e) whether the amendment materially increases the scale or intensity of a proposal or introduces significant changes or new aspects that have not been considered by the responsible authority or primary decision-maker at the first instance;
(f) whether the amendment involves the consideration of additional planning controls or policies that were not previously relevant; and
(g) whether any special circumstances would support the amendment.

Should the permit application be amended?

19 The fundamental principle underlying the guidance provided by Practice Note PNPE9 is that amended plans should be an evolution or refinement of the original plans. The substitution of amended plans is not an opportunity to put forward a different proposal.

20 The subject land is a large site with development potential. However, the council and objectors say that the proposed development is too intense and constitutes an overdevelopment of the site for various reasons. Whether the amended plans constitute an overdevelopment of the site is not the issue at this stage. That is a matter which will be determined at the final hearing on the merits of the proposal. At this point, the factors I must consider are whether the amended plans materially increase the scale or intensity of the proposal or introduce significant new aspects that have not been considered by the responsible authority at first instance. Do they constitute an evolution or refinement of the proposal currently the subject of the permit application or do they so alter the proposal that it has become, in effect, a different proposal?

21 Gardencity points to the similarities between the plans. Both sets contemplate a series of townhouses along the frontage of Everton Grove with a three storey apartment building at the rear with basement car parking. The overall height is similar. The boundary setbacks are similar or increased.

22 I acknowledge these points of similarity. However, there are also many points of difference, including the following:

• Architectural expression. The external architectural expression of the two sets of plans is quite different, including roof profile, the general massing of the buildings and patterns of fenestration.
• Footprint. There is a marginal increase in the footprint of the amended plans, but the layout is quite different. The townhouses fronting Everton Grove are decreased in number (from 5 to 4) but they are no longer all detached. Townhouses 2 and 3 are attached thus presenting as a more solid built form to the street. The townhouse at the rear has been deleted, but the residential building has been enlarged and now extends as a solid built form across the entire width of the site at the rear.
• Setbacks. The external boundary setbacks are, in the main, similar or reduced. However, there are numerous changes to internal setbacks between buildings. There are also numerous changes by way of the provision of terraces and retaining walls within the front setbacks of the townhouses fronting Everton Grove and the provision of terraces to the dwellings in the apartment building.
• Layout. There are significant differences to the site layout of the amended plans (as noted above in the context of footprint) and to the internal layout of dwellings.
• The total number of dwellings has increased from 26 to 30.
• Increase in car spaces within basement car park from 24 to 33. The amended plans are not accompanied by an amended traffic report. The site plan for the basement (Drawing No A004) suggests that further detail will be provided in the final traffic report, presumably to be presented as part of expert evidence at the hearing.
• Landscaping. There is no detailed landscape plan accompanying the amended plans. It is noted on the plans and in the list of changes to the development that a new Landscape Concept Plan is being prepared and will be distributed in accordance with practice note PNPE2, ie with the expert evidence report.
• Access. The main access to the basement car park has been shifted towards the southern boundary.

23 In the list of changes to the development circulated by Gardencity with its notice of application to amend the permit application, it states that the design response has been completely revised to reflect the design intent of the new architect. I consider this accurately describes the new set of amended plans – it is a complete revision of design to the point of being a different proposal. Cumulatively, in my view, the number of changes transform the proposal from something that could be described as an evolution or refinement of the current proposal into a new proposal. The new set of amended plans steps over the line of what is acceptable by way of amendment under Practice Note PNPE9 becoming something that is not acceptable and that should properly be the subject of a fresh permit application to the council.

24 I find there has been no diminution of scale or intensity. Whilst Gardencity submits that the amended plans improve the proposal and respond to issues that have been raised by the council and objectors, the extent and significance of the changes and the new aspects they introduce mean that the responsible authority has not had a proper opportunity to consider them at first instance. The changes are so numerous and significant that it is not possible to say whether the amended plans represent an improvement to the proposal or exactly how they respond to issues raised by objectors and the council without the sort of detailed consideration that was undertaken by the council when the permit application was initially lodged.

25 I am not persuaded that the plans should be amended on the basis of Gardencity’s argument that a refusal to substitute the amended plans will disadvantage it by delaying their consideration and that this should be a factor weighing in favour of a decision to amend.

26 I consider that Gardencity has had plenty of opportunity to refine its proposed development in response to the council’s concerns since it first lodged the permit application in May 2012. It has known since June 2012 that the council did not support the proposal and the reasons for this. It has already amended its permit application once at the council stage. It is evident from the email correspondence between council and Mr Singleton of Gardencity in February 2013 that Gardencity had not subjected its plans to any detailed expert scrutiny up to this stage. Its failure to do so or to use an architect to design the proposal was a choice that it made. It was not unreasonable for the council to refuse to grant Gardencity an additional three months for it to redesign the proposal given that Gardencity could provide no indication of the changes it proposed to make. The permit application had been lodged some nine months previously and it had already been the subject of detailed commentary by the council and amendment by Gardencity. Responsible authorities are under an obligation to act as promptly as is reasonably practicable. Under the Planning and Environment Regulations, the prescribed time for making a decision on a permit application by a responsible authority is 60 days , a period well exceeded in the current case. The council was entitled to make a decision on the application it had before it.

27 In any event, it has taken Gardencity well in excess of three months to redesign the proposal. The delay between February 2013, when it made the request for additional time, to the time when the plans were prepared and notice given under Practice Note PNPE9 is in the order of seven months, not three months.

28 In my view, Gardencity has been responsible for many of the delays to date by its slow and inadequate response to council’s concerns and by its decision to redesign the proposal late in the piece, just prior to the hearing at VCAT, rather than earlier when first provided with council’s detailed feedback. I am therefore not persuaded that the additional delay, which Gardencity may suffer if the permit application is not amended by substituting the amended plans, is a factor that should outweigh the application of the principles embodied in Practice Note PNPE9.

29 Finally, it is evident that the amended plans are not the complete set of plans that Gardencity wishes to rely upon. Detailed landscaping plans and traffic/car parking reports have not been provided but are proposed to be introduced by way of expert evidence at the hearing. The Tribunal has previously commented in Savrez Pty Ltd v Stonnington CC that this is inappropriate.

Conclusion

30 My conclusion is that this application to amend the permit application by the substitution of amended plans pushes the boundaries of what is acceptable practice under Practice Note PNPE9. Individual changes to aspects of the overall development proposal, which are reflected in the amended plans, may have been acceptable, but it is the cumulative effect of all the changes that lead to my conclusion that this a significantly different proposal to that considered at first instance by the responsible authority and for which the permit application was made. As such, I determine that the permit application should not be amended by substituting these amended plans.

31 In these circumstances, if Gardencity wishes to pursue the proposal represented by the amended plans it should lodge a fresh permit application with the council. So far as the present proceeding before the Tribunal is concerned, Gardencity has two options. It may proceed to the hearing, which is scheduled on 13 November 2013 for three days, on the basis of the current plans that form part of the permit application, or it may withdraw the proceeding.

Helen Gibson
Deputy President