A and P Harmon Pty Ltd v Casey City Council
[2005] VSC 327
•17 August 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
VALUATION COMPENSATION & PLANNING LIST
No. 7965 of 2004
| A. AND P. HARMON PTY LTD (ACN 067 447 090) | Appellant |
| v | |
| CASEY CITY COUNCIL AND OTHERS | Respondents |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 JULY AND 3 AUGUST 2005 | |
DATE OF JUDGMENT: | 17 AUGUST 2005 | |
CASE MAY BE CITED AS: | HARMON v CASEY CITY COUNCIL & ORS | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 327 | |
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Appeal pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 - Permit for multi-unit residential development and removal of native vegetation - Relevant considerations – Open to conclude proposal was not responsive to site and neighbourhood – No error of law demonstrated.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr G. Garde | Lobb & Kerr |
| For the Second Respondent | Mr G. Peake | John O'Brien & Associates |
HIS HONOUR:
The plaintiff appeals against a decision of the Victorian Civil and Administrative Tribunal ('the Tribunal') refusing a planning permit for a multi-unit residential development at Berwick and for the removal of native vegetation in conjunction with such development.
The basis of the Tribunal’s decision is summarised in the following paragraphs:
"23Fundamentally this proposal fails because it has not responded appropriately to the site context. The whole point of preparing a site context plan and design response plan is not to identify features such as linear parks or significant vegetation and then disregard them. The point is to identify them and then design a proposal having regard to such features. While it does not automatically mean such features must be retained at any cost or no matter how impractical, it does mean that any adverse impacts (including removal or potential damage) has to be very well justified if it is to be approved. On another site and with different site context (such as the sites in Brisbane Street and Marlesford Crescent), the current proposal would almost certainly gain approval without any of the opposition that has been generated on this site.
24It seems that in many cases permit applicants have a fixed vision or dream of what they want to build and that they have not modified their ideas to take account of, and respond to, the specific site context of the land on which they wish to build. So it appears in this case. In essence, the current proposal involves a replication of a style of medium density development that has been successfully provided by the applicant elsewhere in Berwick. There is nothing wrong with such developments and I do not support residents concerns about a 'gated' community'. Individual houses such as those owned by the respondents have fences and gates and it is common for medium density developments to limit public access. Indeed the provision of this housing style within the Berwick community adds diversity and choice for local residents. What is lacking in this case is a design that responds to the specific site context."
An appeal pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 is limited to an appeal on a question of law.[1] Accordingly, the role of the Court on appeal is a limited one. As Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend[2]:
"The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned … "[3]
[1]Cf Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394-398
[2](1986) 162 CLR 24 at 40-41
[3]See also Whitehorse City Council v Golden Ridge [2005] VSCA 198
Further, it is necessary before a decision of the Tribunal can be set aside that any error of law which is established be shown to vitiate the decision.[4]
[4]Portland Properties Pty Ltd v Melbourne and Metropolitan Board of Works (1971) 38 LGRA 6 at 18; B Marsh Nominees Pty Ltd v City of Moonee Valley (2004) 17 VPR 338
In the present case, the fundamental problem confronting the plaintiff is that it is clear the Tribunal rejected the proposal before it on the basis that it was unsatisfactory as a matter of fact. Accordingly, the plaintiff can only succeed if it can demonstrate that the Tribunal’s conclusions were somehow vitiated by an error of law in the manner in which it assessed the facts. The Tribunal identified three aspects in which the proposal was not site responsive to its site context:
(a)it does not respond to the potential to create connection with adjoining pedestrian walkways and parkland;
(b)it does not respond adequately to the potential to retain existing trees; and
(c)it does not achieve satisfactory orientation of dwellings in terms of access to sunlight (although it is apparent that this third matter was not regarded as being of the same significance as the first two).
The plaintiff attacks each of these conclusions. In summary it contends:
(a)that the Tribunal has approached the decision making process other than in accordance with the planning scheme and the relevant statutory framework. More particularly it has failed to balance adequately or at all the benefits of the proposal against its defects;
(b)the Tribunal failed to have regard to net gain principles in assessing the outcome of the proposal in terms of loss of vegetation;
(c)the Tribunal’s conclusions as to vegetation were not open to it;
(d)the Tribunal’s conclusions as to pedestrian linkages were not open to it; and
(e)the Tribunal failed to advert to relevant considerations in three additional specific circumstances including one bearing on energy efficiency.
The Tribunal’s Approach
The plaintiff takes issue with the statement by the Tribunal at [7] of the decision that:
"The main issue involves the question of whether this is a site responsive design – a design that has taken into account the specific site characteristics of the site."
The plaintiff contends the Tribunal focussed on a specific issue emphasised by the objectors and failed to have regard to the benefits of the proposal.
An appeal to the Tribunal is in the nature of a rehearing. At the time of the Tribunal’s decision s.60(1) of the Planning and Environment Act 1987 relevantly provided:
"(1) Before deciding on an application, the responsible authority -
(a)must consider -
(i)all objections and other submissions which it has received and which have not been withdrawn; and
(ii)any decision and comments of a referral authority which it has received; and
(iii)any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development; and
(b)if the circumstances appear to so require, may consider -
(i)any significant social and economic effects of the use or development for which the application is made; and
(ii)any strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council; and
(iia)any amendment to the planning scheme which has been adopted by a planning authority; and
(iii)any other relevant matter."
This sub-section is to be understood in accordance with the observations of Hayne J in Returned and Services League of Australia (Victorian Branch) Inc., Glenroy Sub-Branch v Moreland City Council and Anor[5]:
"Section 60 of the Planning and Environment Act is not easy to construe. At first sight the contrast drawn between matters which a responsible authority (and the tribunal on a rehearing) “must consider” and those which it “may consider” “if the circumstances appear to so require” is stark and suggests a distinction between obligation and unfettered discretion. The nature and extent of the difference, however, may not be as obvious as that first sight might suggest.
…
If “the circumstances appear to so require” I am of the view that the responsible authority (and thus, on a rehearing, the tribunal) is then bound to have regard to whichever of the four specified subject matters bears upon the issue. I do not accept that the expression “may consider” is to be read in s. 60(1)(b) as conferring a discretion on the decision-maker but rather, in the words of Jervis C.J. in argument in Macdougall v Paterson (1851) 11 C.B. 755 at 766; 138 E.R. 672 at 677 “the word ‘may’ is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise”. (See Finance Facilities Pty. Ltd. v Federal Commissioner of Taxation (1971) 127 C.L.R. 106 at 134-5 per Windeyer J.; see also Mitchell v R. (1996) 184 C.L.R. 333 at 345-6.) To adopt and adapt the language of Windeyer J. in Finance Facilities, the responsible authority (and the tribunal) are each given power to consider the matters mentioned in subs. (1)(b) in forming their decisions but upon proof of the particular case out of which the power arises, that is “if the circumstances appear to so require”, the responsible authority, or the tribunal (as the case may be) is then bound to consider them."
[5][1998] 2 VR 406 at 413-414
Section 84B of the Planning and Environment Act further specifically sets out matters the Tribunal must take into account including (at the time of the Tribunal's decision) the following[6]:
[6]Section 84B of the Planning and Environment Act 1987 has since been amended.
"(1) In determining an application for review under this Act, the Tribunal —
(a)must take into account any relevant planning scheme;
(b)must have regard to the objectives of planning in Victoria;
…
(d)must take account of and give effect to any relevant State environment protection policy declared in any Order made by the Governor in Council under section 16 of the Environment Protection Act 1970;
(e)must (where appropriate) take account of the extent to which persons residing or owning land in the vicinity of the land which is the subject of the application for review were able to and in fact did participate in the procedures required to be followed under this Act before the responsible authority could make a decision in respect of the application for a permit;
…
(i)must take account of any other matter which the Tribunal is required by the provisions of this Act or any other Act to take account of in determining the application for review."
In turn the planning scheme sets out decision guidelines with respect to the permits which the plaintiff was required to obtain for development under the relevant zone control and for the removal of native vegetation. The decision guidelines under the zone provisions specifically required reference to be made to the objectives, standards and decision guidelines of cl.55 (the ResCode provisions). The native vegetation provisions set out extensive decision guidelines to which I will make further reference below.
Lastly, the general provisions of the planning scheme required by cl.65 that before deciding on the application the following must be considered as appropriate:
· The matters set out in s.60 of the Planning and Environment Act 1987.
· The State Planning Policy Framework ("SPPF") and the Local Planning Policy Framework ("LPPF") including the Municipal Strategic Statement and local planning policies.
· The purpose of the zone, overlay or other provisions.
· Any matter required to be considered in the zone, overlay or other provisions.
· The orderly planning of the area.
· The effect on the amenity of the area.
· The proximity of the land to any public land.
· Factors likely to cause or contribute to land degradation, salinity or reduce water quality.
· Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site.
· The extent and character of native vegetation and the likelihood of its destruction.
· Whether native vegetation is to be or can be protected, planted or allowed to regenerate.
· The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.
It can be seen that the range of factors potentially relevant to the Tribunal’s decision was a very broad one. Moreover the relevant provisions of the planning scheme informing the Tribunal's decision, which included the SPPF and the LPPF, ran into some hundreds of pages.
The Tribunal’s decision makes clear that what it identified in [7] of the decision was in its words "the main issue" not the only issue. The Tribunal also specifically identified a suite of provisions within the planning scheme bearing on the case before it and acknowledged that there was a need to balance relevant policy considerations.
The Tribunal specifically acknowledged policy benefits and positive features of the proposal in the following passage:
"8There is a need to balance the various policies contained in the State and local planning policy frameworks. The proposal is consistent with policy relating to consolidating development in well-serviced urban areas. The site is relatively close to the secondary college, although because of the layout convenient pedestrian access utilising the existing linear walkways is not available. However the site is not adjacent to or in close proximity to community and other facilities including shops and is located within 200 metres of the Urban Growth Boundary in this area of Melbourne. The other two similar styled developments in Brisbane Street and Marlesford Crescent referred to by Mr Garde are excellently located very close to a range of facilities (the Brisbane Street site is within sight of and practically adjoins the Berwick town centre while the Marlesford Crescent site backs onto a small shopping centre and is within easy walking distance of public transport, parkland and primary and secondary schools). The review site has some of these advantages in relation to recreation facilities and a secondary school, but is not within convenient walking distance of shops and public transport. It does provide a type of accommodation not found elsewhere in this neighbourhood and therefore assists in providing a diversity of housing styles. I consider that the site can certainly sustain a medium density development - provided as always that matters such as the requirements of ResCode are satisfied including very importantly the design response having regard to the site context. I note that the proposal meets all the mandatory ResCode standards (or in the case of screening can be modified to meet them) and that the main issues in dispute concerned the inappropriate design response, intensity of development, loss of vegetation, traffic generation and failure to include pedestrian links to the existing walkway system."
Other specific findings as to positive aspects of the proposal to which Mr Garde has drawn attention were as follows:
·" … I have largely accepted the evidence of the witnesses in relation to traffic, parking and landscaping…"[7]
·"… the provision of this housing style within the Berwick community adds diversity and choice for local residents."[8]
·" … I accept [Mr Hooper’s evidence, plaintiff’s town planner] in relation to these matters [visual bulk, intensity, setbacks, site coverage, height, overlooking and overshadowing]."[9]
·"I accept the evidence of Mr Walsh (plaintiff’s traffic engineer) on these matters and am satisfied that traffic generated to and from a development such as now proposed can be adequately catered for within the road network."[10]
·"(Parking provision) easily complies with the relevant ResCode Standards and I am satisfied that if the proposal were to be approved then car parking would not have created any problems for residents or their visitors."[11]
[7][13]
[8][24]
[9][25]
[10]{27]
[11][28]
Mr Garde submits that read as a whole the Tribunal's decision does not disclose a satisfactory process of reasoning. In particular, he submits the Tribunal failed to weigh up the negatives identified by it against the positives which it found the proposal to possess.
I do not accept this contention. In my view the Tribunal must be taken to have considered the positive matters identified by it, and nevertheless to have regarded the defects in the proposal to be such that it should be rejected. This is the natural sense of the Tribunal's reasons read as a whole.
The requirement pursuant to s.117(5) of the Victorian Civil and Administrative Tribunal Act that the Tribunal include in its reasons findings on material questions of fact, does not preclude the Tribunal from determining in a particular case which facts are material for the purpose of its decision. It does not require a finding with respect to every question of fact which might hypothetically be regarded as relevant to the decision.
In the present case the Tribunal's reasons are squarely founded upon the findings which it makes as to material facts.
The matters which the Tribunal regarded as critical were acknowledged by the plaintiff to be relevant and it was ultimately a matter for the Tribunal in the exercise of its discretion to determine the weight which should be given to them. Accordingly, grounds 1 to 5 must fail.[12]
[12]1. Was the main issue in the proceedings before the Tribunal the question whether the proposal was
a site responsive design?
2.Did the Tribunal err in law when it failed to hold that the issue was whether a permit should be granted having regard to:
(a) the decision guidelines in Clause 65 of the Casey Planning Scheme ("planning scheme");
(b) the State Planning Policy Framework;
(c) the Local Planning Policy Framework including the Municipal Strategic Statement and the local planning policy;
(d) the objectives, standards and decision guidelines of Clause 55; and
(e) the decision guidelines in Clause 52.17?
3.Was the Tribunal obliged to consider and apply the decision guidelines in Clause 65 and Clause 52.17?
4.Having held that the relevant planning scheme provisions included Clauses 11, 14, 15.12, 16.01, 16.02, 18.02, 19.03, 21.02, 21.03, 21.05, 21.09, 21.13, 21.14, 22.05, 22.17, 55 (ResCode), 57.17 [typographical error] and 65 and that Melbourne 2030 was also relevant, did the Tribunal err in law when it failed to take each of these provisions into account or make material findings of fact relevant to these provisions?
5.Did the Tribunal include in its decision its findings on material questions of fact in accordance with section 117(5) of the Victorian Civil and Administrative TribunalAct 1998?
The Relevance of Contextual Design
The proposal was subject to the ResCode provisions set out in cl.55 of the planning scheme. One of the purposes of these provisions is:
"To encourage residential development that is responsive to the site and the neighbourhood."
It can be seen that the two matters which most concerned the Tribunal were first, a failure to respond adequately to an aspect of the site - namely the trees upon it, and secondly, a failure to respond adequately to the neighbourhood and in particular the potential for pedestrian linkages from the site to the neighbourhood.
Clause 55 provides that a development must meet all of the objectives of the clause and should meet all the standards of the clause. In turn, cl.55.02 provides that an application (for multi unit residential development) must be accompanied by a neighbourhood and site description and a design response.
"55.02-1 Neighbourhood character objectives
To ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character.
To ensure that development responds to the features of the site and the surrounding area.
Standard B1
The design response must be appropriate to the neighbourhood and the site.
The proposed design must respect the existing or preferred neighbourhood character and respond to the features of the site.
Decision guidelines
Before deciding on an application, the responsible authority must consider:
·Any relevant neighbourhood character objective, policy or statement set out in this scheme.
·The neighbourhood and site description.
·The design response."
The plaintiff contends by ground 6 of the notice of appeal that the Tribunal misdirected itself as to the meaning and effect of the objective "to ensure that development responds to the features of the site and the surrounding area". More particularly, it contends by ground 7 that the Tribunal erred when it held the proposal did not "fully respond" to the features of the site and the surrounding area and was therefore unacceptable.[13] The Tribunal used the terms complained of in the following context:
"9Any medium density proposal must be designed having regard to neighbourhood character and site context and must (as a minimum) meet all the objectives of Clause 55 (ResCode). The starting point for all development is an assessment of the neighbourhood and site features. All development, whether being considered under clauses 54, 55, 56 or 19.03 must respond to the features of the site and the surrounding area. I deal with this matter in the next section.
10In relation to neighbourhood character, I am of the opinion that the proposal does not fully respond to the character of the neighbourhood. Establishing the character of the neighbourhood involves more than assessing existing building heights, setbacks and lot sizes but also includes side setbacks, landscape character and styles, size and style of rear yards and the public realm including road and footpath design. This locality is right on the fringe of the urban area with Inglis Road forming the boundary with non-urban land to the north. This situation will change in time as the Urban Growth Boundary follows the transmission line just north of Inglis Road and it is reasonable to assume that there will be some form of infill urban development on the northern side of Inglis Road opposite the review site. Housing is relatively new, with the area to the east more recently developed than that to the west and south west. Housing is a mix of one and two storeys and the area does have a relatively low intensity suburban character. To that extent the proposal to construct one and two storey dwellings on the review site is consistent with this built form, although the density is higher than that generally found in the area. That in itself is not a fatal flaw with the proposal and given urban consolidation policies, it is inevitable that future densities in fully serviced areas will be higher than in times past. Provided such densities are not too out of character then such higher densities can be supported and in that respect I do not reject the mix of one and two storey dwellings and the number of dwellings on a site of this size.
11However another very notable feature of this neighbourhood is the linear park system that provides an alternative means of movement for pedestrians and cyclists. With the exception of the review site, the residential areas on either side and to the south west of the review site are provided with small parks that provide links between the various streets and eventually link through to the Edwin Flack Reserve and the secondary school. The review site in its undeveloped state has resulted in this reserve network being truncated at three points at the boundaries of the review site. (In reality people have been using the review site as an informal link between these reserves, but such movements have in effect been trespass on private land). Although no Outline Development Plan exists to require this network it has, over many years, been developed as a very effective and obviously much appreciated characteristic of this area. The proposal does not build on this important element of the neighbourhood character and in fact ignores it completely, and this is one aspect of the proposal that I find unacceptable in terms of it being a site responsive design." (My emphasis)
[13]6. The Tribunal misdirected itself as to the meaning and effect of the second neighbourhood
objective contained in Clause 55-02-1.
7.having held that the proposal met all mandatory ResCode standards (or in he case of screening could be modified to meet them), the Tribunal erred in law when it held that the proposal did not fully respond to the features of the site and the surrounding area and was unacceptable.
It can be seen that the phrase "not fully respond" was used to convey the meaning of "not satisfactorily respond in all respects." It was not in my view used to implicitly convey a requirement for a perfect response as was submitted on behalf of the plaintiff. It simply introduced an identification of the respects in which the proposal did and did not satisfactorily respond to the neighbourhood context.
Accordingly, grounds 6 and 7 must fail.
The Tribunal's Conclusions Concerning Vegetation
The plaintiff submits that the Tribunal failed to approach the question of retention of vegetation in a balanced way. In particular, it is said it failed to consider the goal of net gain which would be advanced by the revegetation proposed upon the site.
A permit was required for the removal of native vegetation upon the site because the site exceeded 0.4 hectares in area. There is no suggestion that the native vegetation upon the site was of any particular significance. Indeed, the evidence was to the contrary.
Native vegetation is defined in the planning scheme as:
"Plants that are indigenous to Victoria, including trees, shrubs, herbs and grasses."
The decision guidelines relating to the grant of a permit under cl.52.17 relating to the removal of native vegetation, provide in part that the following must be considered "as appropriate":
·The Goal of Net Gain expressed in Victoria's Native Vegetation Management – a Framework for Action (Department of Natural Resources and Environment 2002) and relevant operational guidelines.
·The conservation and enhancement of the area.
·The preservation of and impact on the natural environment or landscape value.
·The role of the native vegetation in:
· conserving fauna and flora
· protecting water quality
· providing shade and shelter …
The Departmental document referred to states in part:
"Net Gain comprises three essential components to ensure an overall increase in the extent and quality of native vegetation:
1) a reduction in losses in the extent of existing native vegetation,
2)a reduction in losses in the quality of existing native vegetation due to threatening processes, and
3)the achievement of gains in extent and quality of native vegetation through its rehabilitation and revegetation with indigenous species for biodiversity, conservation and land and water resource outcomes."
It is now submitted that the Tribunal failed to address the question of net gain in its decision. In my view, however, this is not surprising:
(a)The requirement to remove native vegetation was consequential upon the proposed development. The Tribunal rejected the proposed development by reason of the design deficiencies identified by it. It was not necessary to go to the matters identified in the decision guidelines relating to permits for the removal of native vegetation, because the works which would result in the removal of native vegetation were not permitted in any event;
(b)The very full landscaping proposal put forward on behalf of the applicant deliberately adopted a predominantly exotic pallette of trees and plants at the suggestion of officers of the Responsible Authority;
(c)The submission made to the Tribunal on behalf of the applicant concerning this proposal was one made under the heading "Landscaping" to the following effect:
"9.3Given Ms Frank-Mas' recommendations which will result in 233 new garden trees and 478 tall evergreen trees whereas 62 trees (mainly in poor or indifferent condition) are to be lost, it is submitted that there will be a significant net enhancement in the quality and quantity of trees and vegetation.
9.4Existing vegetation is not remnant native vegetation and there is no planning policy in Casey requiring native vegetation to be planted rather than exotic."
This was quite clearly a submission that the proposal would enhance landscape not that it would result in a net gain of native vegetation.
(d)Mr Galbraith an arborist gave evidence for the plaintiff. There is an affidavit sworn on behalf of the plaintiff stating that Mr Galbraith gave evidence in re-examination to the following effect:
"… he confirmed that there was no indigenous tree native to Victoria on the site which was worthy of protection and that introduced trees could be removed without permit. Mr Garde QC also asked him about the large number of new native and deciduous trees to be introduced to the site as set out in Ms Frank-Mas' landscaping plan. Mr Galbraith confirmed that there was a large net gain both of native and introduced vegetation."
The effect of this "confirmation" is debateable. Taken in context it supported the plaintiff's submission that there would be a net enhancement of landscape. Moreover, Mr Galbaith's evidence did not identify any of the proposed new trees to be native in the specific sense of being indigenous to Victoria. It cannot be said to found the necessary conclusion that the proposal would result in a net gain of native vegetation in the relevant sense.
(e)The Tribunal's notes record Ms Frank-Mas, the applicant's landscape architect, as stating in the course of cross-examination that she had not considered net gain because it only related to remnant vegetation.
(f)The plaintiff also adduced evidence from an expert town planner. Reference is made in the report submitted by him to the Tribunal to the landscaping proposed. He concluded specifically:
"I am of the opinion that (with) the addition of these trees and shrubs, in association with the retention of a number of trees on site, the leafy, well-vegetated character of Berwick will be retained and significantly enhanced."
Once again no reference was made to the concept of net gain of native vegetation.
(g)In my view it is clear that the case that was put to the Tribunal on behalf of the plaintiff asserted an enhancement of landscape but did not assert a net gain in terms of the native vegetation controls. Further, the material before me does not satisfactorily establish that the proposal would result in a net gain of native vegetation. More particularly, it appears on the face of that material that it may be only two trees out of 131 proposed to be planted on the site may constitute native trees in the relevant sense and there was no satisfactory evidence before the Tribunal clarifying precisely what number of trees indigenous to Victoria was proposed.
Accordingly, grounds 9, 10, 11, 12 and 13[14] must fail:
(a)because a consideration relevant to the grant of a permit to remove native vegetation cannot logically vitiate the conclusion to refuse the permit for the development on independent grounds;
(b)because the point was not properly raised before the Tribunal and it would not be fair to allow it to be raised now[15]; and
(c)because no satisfactory evidentiary basis for the point has been demonstrated in any event.
[14]9. The Tribunal misdirect itself as to the legal effect and application of Clause 52.17.
10.The Tribunal erred in law when it failed to apply the goal of Net Gain expressed in Victoria's Native Vegetation Management – A Framework for Action (Department of Natural Resources and Environment 2002).
11.The Tribunal misdirected itself in law as to the application of the goal of Net Gain as expressed in Victoria's Native Vegetation Management – A Framework for Action.
12.Having accepted the evidence of Ms Frank-Mas, the Tribunal erred in law when it failed to take into account or make material findings as to the positive effect on native vegetation of 233 new tall trees and 478 screening shrubs to be planted under the landscaping plan and proposed permit conditions.
13.No reasonable Tribunal could have arrived at the view that the site when taken with the landscaping to be provided under the application did not meet the requirements of Clause 52.17.
[15]City of Greater Geelong v Herd & Anor (1997) 20 AATR 293
The Tribunal made detailed findings as to the extent to which existing native trees would be retained on the site, including the following:
"14There are no overlays applying to the review site in relation to retention of trees and other vegetation, and the requirement in Clause 52.17 for permission to remove native vegetation (defined in the Planning Scheme as plants that are indigenous to Victoria, including trees, shrubs, herbs and grasses) is triggered because the site has an area greater than 0.4 hectares. I note that none of the trees are indigenous or remnant to this part of Victoria and I accept Mr Galbraith's evidence that the majority are in poor condition and of little significance. The plans show retention of four trees - Nos 11, 16, 32 and 44. Tree 11 (Euc. maculata) is indigenous to East Gippsland and NSW, has been given a '5' WOR (Worthiness of Retention) rating and is described as a large healthy tree, a prolific limb shedder and requiring a very large amount of space free of construction. Tree 16 (Frax. angustifolia) is not native and has been given a '5' WOR rating and is described as being in fair condition. Tree 32 (Euc. botryoides) is indigenous, has been given a '5' WOR rating and is described as large tree, with some decay in the trunk, needing a lot of work to make safe and a lot of space if it is to confidently remain. At the hearing Mr Galbraith gave evidence that Tree No 32 could no longer be retained because of excavation required within the root zone. Tree 44 (Euc. elata) is indigenous to East Gippsland and NSW, has been given a '3' WOR rating and is described as an open crowned, rangy tree with spreading habit. Mr Galbraith did not originally recommend this be retained although it was shown as being retained on the development plans.
15In relation to the four trees originally shown on plans as being retained, it became clear during cross-examination that much more open space must be provided around them if their future health is to be assured. As noted, three are rated '5' and one is rated '3'. Tree 44 that is only rated '3' is a tree that Mr Galbraith did not originally recommend for retention. The provision of an appropriate tree protection zone will require a substantial area of land to be set aside around it if it is survive. Given its low life expectancy then I am not convinced that it should be retained. However, if it is decided to retain it then the design must incorporate clear space as recommended by Mr Galbraith.
16Of the remaining trees proposed for retention (excluding Tree 32 which Mr Galbraith has said should now be removed), Tree 11 is the healthiest and should be retained at all costs. An area of communal open space has been provided around this tree but it is clear that a much larger area must be provided in accordance with the evidence of Mr Galbraith if this tree is to remain in a healthy condition. The design does not reflect the need for this open space - any new design must include a larger area around this tree as recommended by Mr Galbraith.
17Trees 16 is not indigenous to Victoria and a permit is not required for its removal. However it is shown as being retained on plans and it can form part of the landscape proposal for the site.
18Surprisingly the 'best' tree on the site (No 7) has not been earmarked for retention. I consider it a great pity that this tree is not being retained but note that permit approval is only required for the removal of native vegetation - therefore Tree 7 could be removed at any time without a planning permit. I acknowledge that Clause 55 does include reference to trees that have been removed for a development advantage but it is simply a matter to be considered in the decision guidelines. However I strongly recommend that this tree be retained in a new design and that the area around trees 7 and 11 be designed as an area of communal open space.
19The major disappointment in relation to native vegetation removal concerns Tree No 32. This is a very large and significant tree and has rating of '5'. Mr Galbraith originally recommended that it be retained but at the hearing changed his mind and said it should be removed because it could not be saved with the amount of excavation required around it. This is not site responsive design. Put bluntly, if the tree is to be saved then the design must incorporate sufficient free space around the roots and canopy to ensure its long term survival - and to minimise calls for it to be later removed because of perceived safety issues in relation to limb drop on roofs or damage to roads and walls."
In my view although the evidence before the Tribunal was mixed as to the value and health of the trees in issue nevertheless the Tribunal's conclusions in the respects set out above were clearly open to it and it is not suggested otherwise by any specific ground of appeal. Accordingly, the first basis on which the Tribunal found that the design was not site responsive has not been the subject of any effective challenge.
Pedestrian Linkages
The Tribunal's conclusions with respect to pedestrian linkages were as follows:
"20The other major issue in relation to site context concerns the network of pedestrian walkways within the neighbourhood and the fact that three of these abut the west, south and east boundaries of the review site. The design response has ignored these and I find this an unacceptable outcome given the themes in policy frameworks:
Development of a municipal-wide open space network, incorporating bicycle and pedestrian paths and equestrian trails
and
o reduce car dependency amongst the Casey community.
21Policy is clear that existing links need to be improved and in relation to accessibility (Clause 21.13-1) notes that:
What is lacking is a municipal wide network of open space linkages to connect regional open space to lower order open space and to built up areas. This is essential for the full and effective use of all open space assets.
22I consider that the Council officers were on the right track in requiring the linking of pedestrian spaces through the development and I am puzzled why the Council removed this requirement given the existing and well-established network that comes right up to the boundary of the review site. Although there is no outline development plan applying in this area, effective strategic planning would support the linking of the existing well-established pedestrian network. A concrete path actually runs to the western boundary of the review site and is then truncated by a fence along the property boundary. The main desire line for residents to the west is clearly in a south east direction towards the school and major recreation facilities. I find it inconceivable that even if the proponent does not want to provide public access through the land that these links were not provided for the convenience of residents of the new development, with one way lockable gates to prevent access if desired. At the hearing Mr Garde suggested that a resident only link could be provided to the park to the south so that residents of the development could easily access the recreation area and school to the south."
Grounds 16 and 17 of the notice of appeal which raised questions of evidence concerning the usage of pedestrian linkages were not pursued in argument before me. Nor on the final state of the affidavit material could they have succeeded.
The plaintiff contends that the Tribunal has misstated the policy framework and that cl.21.13-1 which was specifically referred to by it, is concerned with linkages to regional open space.
I accept that this specific policy instanced at one point by the Tribunal is directed to this objective. Nevertheless I do not accept the Tribunal's reasons rest upon the terms of cl.21.13-1 and the underlying policy consideration which the Tribunal identifies is as Mr Peake submitted, one that emerges quite clearly from the planning scheme as a whole. The planning scheme evinces broad policy support for the provision of an effective network of pedestrian linkages and access to public open space.
The Objectives for Metropolitan Development stated at cl.14 of the SPPF include:
"• enhanced environmental quality and liveability for the metropolitan population
·improved functioning through best practice management of its infrastructure and urban development."
General implementation measures stated in support of these objectives include:
"Planning decisions should assist the creation of linked parkland and open space systems and the protection of high quality agricultural land, important open landscapes and native vegetation."[16]
[16]Cl.14.02-2
The Environmental Policy stated at cl.15 of the SPPF includes the following objective for open space:
"To assist creation of a diverse and integrated network of public open space commensurate with the needs of urban communities and rural areas."[17]
[17]Cl.15.10-1
The general implementation measures stated with respect to this objective include:
"Planning and responsible authorities should ensure that land is set aside and developed in residential areas for local recreational use and to create pedestrian and bicycle links to commercial and community facilities."[18]
[18]Cl.15.10-2
Clause 21.02-3 of the LPPF identifies as a key land use theme of the municipal strategic statement the theme quoted by the Tribunal:
"Development of a municipal wide open space network, incorporating bicycle and pedestrian paths and equestrian trails."
The local policy relating to accessibility specifically contemplates further strategic work:
"• preparing an Open Space Strategy to identify a functional hierarchy and establish a network of open space."
Clause 55 of the planning scheme which contains the ResCode provisions states as a purpose (in addition to the purpose which I have already set out):
"To encourage residential development that provides reasonable standards of amenity for existing and new residents."
It is a specific objective of cl.55.03-6 with respect to open space:
"To integrate the layout of development with any public or communal open space provided in or adjacent to the development."
The Tribunal was satisfied the proposal did not achieve appropriate integration with the reserves adjacent to the site.
In my view, given that the site was adjoined by two reserves providing potential pedestrian linkages to the east and west and by a park to the south, it was open to the Tribunal to conclude that having regard to the relevant policy framework a proper design response required further pedestrian access (other than from the roadway at the front of the site) which should at least be provided for residents of the new development. The concession made by Mr Garde at the hearing and recorded by the Tribunal in its reasons concerning a potential pedestrian link to the park implicitly concedes the potential relevance of the issue. The Tribunal's judgment in this regard was essentially one of fact and was no doubt informed in part by the results of the two inspections it made of the area. In my view the conclusion demonstrates no error of law and grounds 14 and 15 of the notice of appeal must fail.[19]
[19]14. The Tribunal misdirected itself as to the meaning, effect and application of Clause 21.13-1
insofar as it provided:
"What is lacking is a municipal wide network of open space linkages to connect regional open space to lower order open space and to built up areas. This is essential for the full and effective use of all open space assets."
15.The Tribunal misdirected itself as to the meaning, effect and application of Clause 21.13-2 insofar as it contained the objective:
"• To provide a municipal wide network of open space linkages to connect regional open space to lower order open space and to built up areas."
Specific Questions
It was lastly submitted on behalf of the plaintiff that the Tribunal failed to take into account certain specific matters. First, it is contended the Tribunal failed to take into account the condition proposed by the Council requiring provision of a concrete footpath access across the front of the site. I can see no basis for inferring that the Tribunal failed to take this into account or for concluding that the provision of such a footpath somehow addressed the pedestrian linkage deficiencies the Tribunal specifically identified.
Likewise, the conditions proposed by the Council requiring further provision of a communal open space area to ensure long term protection of Tree 11, and further requiring the provision of a Tree Management Plan, did not provide answers to the deficiencies in site responsive design identified by the Tribunal. Moreover, the evidence before the Tribunal as to what was necessary differed from that available to the Council at the time the conditions were formulated.
The Tribunal itself stated that it specifically considered the question whether the deficiencies it had identified in the proposal could be addressed by conditions:
"30In rejecting the current proposal, I did consider the option of granting a permit but with conditions requiring open space links to the existing linear reserves (as recommended by Council officers), retention of more trees and deletion of dwellings to create more space around the trees being retained. However the practical effect of fixing these shortcomings will inevitably result in a substantially different development. That does not mean that a medium density development, of mixed one and two storey built form, is not appropriate for this site. Residents should not expect that a redesigned proposal would necessarily result in a residential subdivision similar to that existing to the east and west. The key issue is that any new proposal is a design that actually responds to the specific site context."
This conclusion was one of fact and was open to the Tribunal upon the evidence before it. It follows that grounds of appeal 10, 11 and 12 must fail.
Lastly, it is contended by ground 21 of the notice of appeal that:
"The Tribunal erred in law when it failed to take into account a relevant consideration viz that proposed condition 1(i) required a submission of an Energy Rating Report as required by ResCode."
The Tribunal stated:
"29There was some criticism in relation to the lack of north facing windows for some units. In relation energy efficiency, I consider that the proposal could have achieved a much better outcome on such a large site. The majority of dwellings are orientated with their main areas of open space to the east, west or south of living areas. On such a large site, there should be no difficulty in orientating many more dwellings so that the living areas gain direct access to generous north facing open space areas and hence very high levels of energy efficiency. There is no evidence that the proposal meets energy efficiency objectives in 55.03-5 or that there has been an attempt to incorporate ESD principles (such as water sensitive design - Clause 22.17-3)."
The proposed permit condition which the plaintiff seeks to call in aid does not answer the Tribunal's principal criticisms which are directed to the overall adequacy of orientation of living areas within the dwellings proposed. Moreover, and perhaps more fundamentally from the point of view of this Court, it is in any event clear that the criticisms set out in paragraph 29 of the Tribunal's reasons did not form the fundamental basis on which the Tribunal rejected the application. It follows that even if they were in some way misconceived (although I do not accept that it has been shown that they were) they nevertheless could not constitute a vitiating error in the decision.
Conclusion
For the above reasons the appeal must be dismissed.
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