VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P76/2025
Permit Application no.MPS/2018/698/A 	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987 (Vic) – Merri-bek Planning Scheme – Residential Growth Zone (Schedule 2) – Development Contributions Plan Overlay (Schedule 1) – Design and Development Overlay (Schedule 24) – Parking Overlay (Schedule 1) – ESD – BESS vs NatHers  	

Applicant	Kostandinov Investment Pty Ltd	

Responsible Authority	Merri-bek City Council	

SUBJECT LAND	238 Waterloo Road
OAK PARK VIC 3046	

HEARING TYPE	Hearing	

DATE OF HEARING	3 June 2025	

DATE OF ORDER	4 June 2025	

CITATION	Kostandinov Investment Pty Ltd v Merri-bek CC [2025] VCAT 494	
Order
Amended Permit granted
1	In application P76/2025 the decision of the responsible authority is set aside.
2	In planning permit application MPS/2018/698/A an amended permit is granted and directed to be issued for the land at 238 Waterloo Road Oak Park VIC 3046 in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit is amended as follows:
(a)	Condition 1 is reworded:
Before the development is completed, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans prepared by Jontian Group referenced 01-09 October 2018 and advertised 29 November 2018 but modified to show:
(b)	Conditions 1(a) to 1(j) inclusive to be retained, other than condition 1(c) which is to be reworded as follows: 
Location of all external shading devices associated with dwelling 1, including a section detailing adjustable shading devices. 

(c)	Add a new condition as condition 1(k):
The environmentally sustainable design initiatives that are required to be shown on plans, as contained within condition 6 of this permit.  
(d)	Condition 6 is reworded: 
Prior to the completion of the development, the advertised Sustainable Design Assessment dated 22 November 2018 must be amended to the satisfaction of the Responsible Authority to include the following:
(a)	Preliminary NatHERS ratings with energy modelling for each dwelling type.
(b)	Amend the BESS report to correct Urban Ecology 2.1 (vegetation) to identify the percentage of the site covered with vegetation (not including pathways/paving etc).
(c)	Continue to achieve a minimum BESS score of 50%.
Where alternative ESD initiatives are proposed to those specified the Responsible Authority may vary the requirements of this condition at its discretion, subject to the development achieving equivalent (or greater) ESD outcomes in association with the development.
When submitted and approved to the satisfaction of the Responsible Authority, the amended Sustainable Design Assessment and associated notated plans will be endorsed to form part of this permit.

Cassandra Rea
Member				

Appearances
For applicant	C. Mackenzie, town planner	
For responsible authority	A. Fraser, town planner	

Information
Description of proposal	The amendment seeks to delete condition 1(c) of Planning Permit MPS/2018/698/A issued on 10 September 2019.
Condition 1(c) requires amended plans showing the location of all external shading devices including a section detailing adjustable shading devices.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 (Vic) – to review the refusal to grant a permit. 	
Planning scheme	Merri-bek Planning Scheme	
Zone and overlays	Residential Growth Zone (Schedule 2)
Development Contributions Plan Overlay (Schedule 1)
Design and Development Overlay (Schedule 24)
Parking Overlay (Schedule 1)	
Key scheme policies and provisions	Clause 15.01-2L-05 (Environmentally Sustainable Development)	
Land description	The site is located on the south-east corner of Waterloo Road and Charlotte Street in Oak Park.  
The development comprising of five, triple storey townhouses are currently under construction.  	

Reasons
What is this proceeding about?
1	Kostandinov Investment Pty Ltd (‘applicant’) seeks a review of Merri-bek City Council’s (‘council’) decision to refuse to amend Planning Permit MPS/2018/698/A (‘permit’), issued on 10 September 2019.  The permit allows for the construction of five triple-storey dwellings at 238 Waterloo Road, Oak Park (‘site’) and is presently under construction.  
2	The amendment to the planning approval seeks the removal of external shading devices (roller blinds or retractable awnings) located over habitable room windows on the east, north and west elevations.
3	The applicant provides a National House Energy Rating Scheme (‘NatHers’) assessment to support the removal of the external shading devices.  However, this assessment has not been supported by council who submits that NatHers is based on an annualised energy load.  Council prefers the Built Environment Sustainability Scorecard (‘BESS’) to demonstrate best practice for environmentally sustainable development (‘ESD’).  
4	The council has refused the permit amendment application to remove the external shading devices (‘amendment application’) on the following ground: 
The proposed removal of the shading devices is contrary to Clause 15.01-2L-05 (Environmentally Sustainable Development).
5	Having considered the submissions, and with regards to the relevant policies and provisions of the Scheme, I have determined to set aside council’s decision, as set out in the orders. My reasons follow.
what is being amended?
6	The request to amend the permit seeks the deletion of condition 1(c) which requires:
Location of all external shading devices including a section detailing adjustable shading devices. 
7	Unhelpfully, the request to delete the screens from the plans were not accompanied by updated architectural plans showing the same or an updated sustainable design assessment demonstrating that the minimum BESS score of 50% will continue to be achieved.  
8	I was advised at the hearing that the applicant did not seek to amend condition 6 which requires the endorsement of a sustainable design assessment to achieve a minimum BESS score of 50%.  
9	Council submits that a minimum BESS score of 55% should be achieved on the basis that the existing endorsed sustainable design assessment achieves a BESS score of 55% and relevant policy seeks best practice in environmentally sustainable development (‘ESD’) and the following wording in part of condition 6 gives council discretion to achieve equivalent (or greater) ESD outcomes:
Where alternative ESD initiatives are proposed to those specified the Responsible Authority may vary the requirements of this condition at its discretion, subject to the development achieving equivalent (or greater) ESD outcomes in association with the development.
10	It was agreed by parties that if the Tribunal was of a mind to grant an amended permit that updated architectural plans and the sustainable design assessment would need to be submitted to council for endorsement.  
11	The existing endorsed sustainable design assessment has conflicting material in relation to the provision of external screening devices.  Furthermore, there are some discrepancies between the floor plans and elevations with respect to which windows have the external screening devices.  
what is the policy context in relation to Environmentally sustainable design?
12	The objective to clause 15.01-2L-05 states:
To achieve best practice in environmentally sustainable development from the design stage through to construction and operation.
13	The general strategies include: 
Facilitate development that minimises environmental impacts.
Encourage environmentally sustainable development that:
•	Is consistent with the type and scale of the development.
•	Responds to site opportunities and constraints.
•	Adopts best practice through a combination of methods, processes and locally available technology that demonstrably minimise environmental impacts. 
14	More specific strategies are provided in relation to energy performance that include:
Reduce both energy use and energy peak demand through design measures such as:
•	Building orientation.
•	Shading to glazed surfaces.
•	Optimising glazing to exposed surfaces.
•	Inclusion of or space allocation for renewable technologies.
15	The policy guidelines instruct the decision maker to consider, as relevant, a sustainable design assessment (including an assessment using BESS, STORM or other methods) for developments including two to nine dwellings.  
how should a Sustainable design assessment be undertaken?
16	Information that accompanies the amendment request headed as ‘Performance Solution Report’ dated 2 November 2023 provides some commentary of the NatHers assessment system.  NatHers is an energy rating scheme that is referenced in the National Construction Code 2022 and adopted by the federal government, in addition to the states and territories.  
17	BESS is a tool created by selected local governments in Victoria to show how a proposed development demonstrates sustainable design at the planning permit stage.  The NatHers assessment is an input to the BESS scorecard.
18	In determining this matter, I find that it is not necessary for me to consider whether the NatHers assessment is sufficient in the assessment of the ESD credentials of the building.  I place significant weight on the fact that the applicant has indicated that there is no change to meeting condition 6(c) which requires the sustainable design assessment to achieve a minimum BESS score of 50%.
What bess score should be achieved?
19	I am not persuaded that the BESS score to be achieved ought to be 55%.  The condition imposed by the council in September 2019 states that a minimum 50% BESS score should be achieved.  At the determination of the application, council must have been satisfied that a BESS score of 50% would achieve best practice of ESD sought under clause 15.01-2L-05.
20	The wording contained within condition 6 refers to a built-in council discretion to vary the requirements subject to the development achieving equivalent (or greater) ESD outcomes in the development.  However, there is a parameter provided under condition 6(c) that states the sustainable design assessment should ‘continue to achieve a minimum BESS score of 50%’
21	It would be unfair to the permit holder for the council to apply the built-in council discretion that effectively changes the goal post with regards to the acceptability of the development in relation to ESD.  The goal post in this instance has been set as a minimum 50% BESS score and the permit applicant does not seek to challenge the compliance of this.    
Can the screens be removed?
22	Council submits that the proposal to removal the external shading devices do not meet the specific strategy relating to energy performance on the basis that shading to glazed surfaces is a specific strategy included within clause 15.01-2L-05.
23	I am persuaded by the applicant’s submission that the solution to achieving best practice of ESD is a combination of methods.  The external screens may not be the only option to achieve energy performance and internal amenity for the future occupants of the dwellings.  I read the strategies as options, not mandates.  
24	However, the information provided by the applicant in relation to the NatHers assessment shows that the cooling loads for dwelling 1 is significant.  This is due to its north and west orientation.
25	Given the challenge for this dwelling to achieve comfortable living conditions during the summer, I find that the external screens for this dwelling should be retained however find that the removal of the screens for dwellings 2 to 5 can be supported.  
What conditions are appropriate?
26	As the construction has commenced, it is also necessary for the Tribunal to vary the preamble to conditions 1 and 6 to necessitate amended plans and sustainable design assessment to be submitted prior to completion of development. 
Conclusion
27	For the reasons given above, the decision of the responsible authority is set aside.  An amended permit is granted subject to conditions.

Cassandra Rea
Member