Abercrombie v Salter Architects - [2017] VSC 180

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S CI 2016 50321

SHADDA ABERCROMBIE

Applicant

SALTER ARCHITECTS

- and -

MINISTER FOR PLANNING

First Respondent

Second Respondent

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2017
DATE OF JUDGMENT:	12 April 2017
CASE MAY BE CITED AS:	Abercrombie v Salter Architects
MEDIUM NEUTRAL CITATION:	[2017] VSC 180

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PLANNING & ENVIRONMENT – Application for leave to appeal and appeal from the Victorian Civil and Administrative Tribunal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 – Tribunal ordered that a planning permit issue to construct a multi-level apartment building in the Mount Buller Village – Impact on views from neighbouring premises – Imposition of a condition limiting the height of the proposal in order to effect a reasonable sharing of views – Whether the condition lacked an evident and intelligible justification – Whether Design and Development Overlay imposed a mandatory height limit – Whether the Tribunal misconstrued an earlier Tribunal decision in relation to the same land – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Stuart Morris QC	Planning & Property Partners
For the First Respondent	Mr Michael Symons	Elliott Legal
For the Second Respondent	Ms Jane Sharp	Victorian Government Solicitor’s Office

HER HONOUR:

Introduction

The first respondent proposes to develop land at 237 New Summit Road, Mount Buller, by constructing a five storey building containing a number of apartments, with four ‘chalets’ on the top level, and two levels of parking below. The proposed development will occupy a relatively steep site between New Summit Road (to the north) and Abominable Way (to the south).

The applicant owns or leases an apartment on level three of Alto Villas (‘Alto 302’), which is located on Abominable Way, above and overlooking the development site. The applicant complains that the proposed development will block the views from Alto 302 to the north and that it does not achieve a reasonable sharing of views. The applicant’s complaint is, in substance, that the proposed development is too high and should be lowered by approximately one metre in order to achieve a reasonable sharing of views to the north.

The subject land is affected by a design and development overlay. Clause 43.02-2 of the Alpine Resorts Planning Scheme provides that a permit is required to construct a building or to construct or carry out works in the area covered by the overlay and that buildings and works must be carried out in accordance with any requirements in a schedule to the overlay. However, cl 43.02-2 also provides that a permit may be granted to construct a building not in accordance with a requirement in a schedule of the overlay, unless the schedule ‘specifies otherwise’.

Schedule 1 to the overlay applies to the Mount Buller Alpine Resort Village where the subject land is located. Clause 2.1 sets out the building and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSC 180
Decision Date: 12 April 2017

CaseChat Overview and Summary

In Abercrombie v Salter Architects, the respondent sought leave to appeal and the appellant appealed against a decision of the Victorian Civil and Administrative Tribunal (VCAT) concerning the issuance of a planning permit. The permit, if granted, would allow for the construction of a multi-level apartment building in the Mount Buller Village. The central dispute revolved around the impact of the proposed construction on the views from neighbouring premises, and the imposition of a condition limiting the height of the proposal to achieve a reasonable sharing of views.

The legal issues before the court included whether the condition imposed by VCAT lacked an evident and intelligible justification, whether the Design and Development Overlay imposed a mandatory height limit, and whether VCAT had misconstrued an earlier decision related to the same land. The respondent contended that the height condition was unjustified, while the appellant argued that the condition was a reasonable measure to balance the interests of all parties involved.

The court found that the condition imposed by VCAT was justified and intelligible, as it aimed to mitigate the impact of the proposed construction on neighbouring views. The court also determined that the Design and Development Overlay did not impose a mandatory height limit. Regarding the alleged misconstruction of the earlier decision, the court concluded that VCAT had correctly interpreted the relevant provisions. As a result, leave to appeal was granted, but the appeal itself was dismissed.

Orders