Andrews and Morrisy Developments Pty Ltd v Port Phillip City Council
[2019] VSC 337
•22 May 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 01935
| ANDREWS AND MORRISSY DEVELOPMENTS PTY LTD | Applicant |
| v | |
| PORT PHILLIP CITY COUNCIL | First Respondent |
| MICHAEL FREEMAN | Second Respondent |
| DONNA THIBAULT | Third Respondent |
| MARK FREEMAN | Fourth Respondent |
| AYS AZIZ | Fifth Respondent |
| BRIAN GRIEVE | Sixth Respondent |
| ROBERT EVERETT | Seventh Respondent |
| SALLY EVERETT | Eighth Respondent |
| ANDY MCSHANAG | Ninth Respondent |
| ANTTI KILPIKOSKI | Tenth Respondent |
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JUDGE: | OSBORN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 May 2019 |
DATE OF JUDGMENT: | 22 May 2019 |
CASE MAY BE CITED AS: | Andrews and Morrisy Developments Pty Ltd v Port Phillip City Council & Ors |
MEDIUM NEUTRAL CITATION: | [2019] VSC 337 |
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TOWN PLANNING – Application for leave to appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 – Effect of transitional exemption in planning scheme related to mandatory height control – No implication of words going beyond literal meaning – No exclusion of purpose of zone as a consideration relevant to the grant of a permit – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S. Morris QC with Mr R. Chaile | Russell Kennedy Lawyers |
| For the Respondents | No appearance |
HIS HONOUR:
Introduction
The applicant seeks leave to appeal[1] against a decision of the Victorian Civil and Administrative Tribunal (the Tribunal) to refuse a planning permit for a multi-unit residential development.[2] If leave be granted it seeks that the appeal is allowed.
[1]Pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998.
[2]Andrews and Morrissy Development Pty Ltd v Port Phillip CC [2018] VCAT 1365.
The appeal site is occupied by buildings formerly used as the Town Hall Hotel, South Melbourne. It is located on the south-east corner of Bank and Wilson Streets, with street frontages to Bank Street, Wilson Street and a laneway to the rear.
The existing buildings on the appeal site comprise modified two storey Victorian buildings.
The appeal site has previously been the subject of a proposal for multi-unit residential development which was rejected by a different division of the Tribunal. The proposal now in issue responds to a series of concerns expressed in the earlier VCAT decision.
The applicant proposes to modify the façade of the building and construct a four storey residential building behind that façade, containing six dwellings together with car parking in two basement levels.
The proposed second and third storeys would step back from and be partially concealed from view by the existing façade as illustrated by the following montage.
The Tribunal refused to direct that a permit be granted for the proposal because it concluded that the proposal was inconsistent with the character of the neighbourhood and in particular the elements of that character identified in the relevant zone purpose governing the appeal site.
The applicant contends that in so doing the Tribunal erred by failing to have any or any proper regard to a transitional height control exemption benefitting the application.
For the reasons set out below, I am not persuaded that the Tribunal failed to give proper effect to the exemption.
The applicant’s right of appeal is limited to one on questions of law. The applicant’s case turns upon questions of statutory construction.
The planning controls
The land is governed by the Port Phillip Planning Scheme and zoned Neighbourhood Residential Zone 1 – Neighbourhood Residential Areas – Fine Grain Inner Urban (NRZ1). That zone has been applied to a discrete area of what was formerly a more general residential zone. The immediate area covered is shown in the plan below upon which the appeal site is outlined in red.
The purpose of the Neighbourhood Residential Zone (‘NRZ’) generally includes the following:
·To implement the Municipal Planning Strategy and the Planning Policy Framework.
·To recognise areas of predominantly single and double storey residential developments.
·To manage and ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics.
·To allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs in appropriate locations.
The zone provisions include schedules which refine controls over particular areas within the NRZ. Clause 32.9-1 provides: ‘a schedule to this zone must contain the neighbourhood, heritage, environment or landscape character objectives to be achieved for the area.’ In the present case clause 1 of schedule 1 which governs the NRZ1 states as an objective: ‘to maintain the fine grain character of the area including smaller lot sizes with small front setbacks.’
Under the NRZ a permit is required to develop the appeal site for the purpose of more than one dwelling.[3]
[3]Clause 32.09-6.
In addition at the date of the Tribunal decision[4] clause 32.09-9 provided for a mandatory maximum building height and a maximum number of building storeys. As the Tribunal records in its decision however,[5] transitional provisions at clause 32.09-14 exempted this application from the mandatory height limit. But for the exemption the proposal would have been subject to a height limit of nine metres and a limit of two storeys. In consequence of the exemption however the grant of a permit for four storey development was discretionary. The exemption relevantly provided ‘… the maximum building height and number of storey requirements of clause 32.09-9 introduced by amendment VC110 do not apply to…’ applications made before a certain date.
[4]27 September 2018.
[5]Reasons [20].
The fact that a permit could be granted did not give rise to any legitimate expectation that a permit would be granted. Clause 71.03-2 of the planning scheme provides with respect to permissible uses:
Because a use is in Section 2 does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the Municipal Planning Strategy, the Planning Policy Framework, the purpose and decision guidelines of the zone and any of the other decision guidelines in Clause 65.
The same principles may be taken to apply to permissible developments.
Clause 32.09-12 sets out decision guidelines with respect to the discretionary decision relating to the required permit. They provided the responsible authority ‘must consider, as appropriate’:
· The municipal planning strategy and the planning policy framework.
· The purpose of this zone.
· The objectives set out in the schedule to this zone.
· Any other decision guidelines specified in a schedule to this zone.
…
In broad terms the relevant planning policy framework contained provisions encouraging urban consolidation and the provision of diversity in the residential accommodation on the one hand. On the other hand it encouraged development properly responsive to its context.
The municipal planning strategy supported the specific purposes of the zone, in particular the local strategy applicable to all areas zoned residential (except areas zoned mixed use) provided:
6.5.49Ensure all new development responds to the following character elements:
· The historic, low-rise Victorian and Edwardian architectural character of the area.
· The low scale of development that is predominantly 1 and 2 storeys in most streets with the exception of some taller buildings along the foreshore and in the vicinity of Albert Road.
· The wide streets and boulevards, as well as the intricate network of small streets and back lanes.
· The small size of most residential lots in the neighbourhood.
· The differences between the diversity contributing to the distinctive neighbourhood character of some of the smaller areas in Emerald Hill.
The decision guidelines contained in clause 32 also referred to and adopted the objectives standards and decision guidelines of clause 55 relating to the construction and extension of two or more dwellings on a lot. Clause 55.02-1 provides the following objectives with respect to neighbourhood character:
·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.
In addition to the zone decision guidelines the general decision guidelines at clause 65 of the planning scheme also direct attention inter alia to the purpose of the zone.
When these provisions are read together it can be seen that the recognition and identification within the zone purpose of the area comprised in the NRZ1 zone as predominantly single and double storey residential development,
· generated an objective of managing and ensuring that development respected the identified neighbourhood character; and
· might be said to inform the application of clause 55.02-1.
The construction issue
The applicant submits that the construction of the exemption with respect to the mandatory height control, should be given an effect which negatives all ‘requirements’ of clause 32 relating to residential development of two storey height. The notion of ‘requirements’ is said to extend to the statements of purpose at the outset of the NRZ control and in particular the second purpose namely the recognition of an area as predominantly single and double storey. Strictly speaking the statement of purpose is not a requirement but a matter to which regard must be had in making a decision under the NRZ control including deciding whether a permit should or should not be granted. Nonetheless it is submitted by the applicant that extrinsic materials relating to the background to the exemption support a broad construction of the exemption which rendered this zone purpose irrelevant.[6]
[6]I record but for present purposes put to one side the fact that it appears such materials were not submitted to the Tribunal.
In written submission the applicant summarised the central thesis of its case this way:
Although the transitional provision in clause 32.09-14 referred specifically to clause 32.09-9, it had a purpose and effect that was broader than simply excluding clause 32.09-9. That purpose and effect was to exclude assessment of a proposal by reference to the height and storey requirements of the NRZ generally in circumstances where an application had been made prior to the change in the land’s zoning. The purpose and effect of the transitional provision was to neuter the stringent height and storey requirements that were being imposed on the land by the change in its zoning.
It is this broad construction which underlies the proposed grounds of appeal. The proposed grounds of appeal are as follows:
1.The Tribunal erred in law at [60-84] in finding that the applicant’s proposal to construct a four storey dwelling was “not an acceptable response to its physical and policy context” having regard to the maximum building height requirements of the Neighbourhood Residential Zone (NRZ) in the Port Phillip Planning Scheme (Scheme) because this finding ignores, or fails to give appropriate effect to, transitional provisions in clause 32.09-14 of the Scheme which stated that the maximum building height (and number of storeys) requirements in the NRZ did not apply to the applicant’s application for a planning permit.
2.The Tribunal erred in law at [84] in finding that the applicant’s proposal to construct a four storey dwelling was “not an acceptable response to its physical and policy context” having regard to the maximum building height requirements of the NRZ Scheme because, in making this finding, the Tribunal:
a.failed properly to assess the merits of the applicant’s permit application in accordance with law, by failing to construe clause 32.09-14 of the Scheme as modifying both clause 32.09-9 of the Scheme and other provisions of the Scheme that related to building height in the NRZ, as these provisions applied to the subject application; and, in so failing, failed constructively to exercise its jurisdiction or failed to take into account a relevant consideration; and
b.erroneously assessed the merits of the applicant’s permit application against the provisions of the NRZ in circumstances where those requirements had been modified by reason of the transitional provisions in clause 32.09-14 of the Scheme and, in so failing, took into account an irrelevant consideration.
Before turning to the extrinsic materials upon which the applicant relies it is useful to set out the general principles governing the use of such materials.
First the task of statutory construction begins with the ordinary and grammatical sense of the words having regard to their context and legislative purpose.
Secondly s 35 of the Interpretation of Legislation Act 1984 provides both for the purposive interpretation of subordinate instruments and for reference to relevant extrinsic materials to identify that purpose.
35 Principles of and aids to interpretation
In the interpretation of a provision of an Act or subordinate instrument—
(a)a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and
(b)consideration may be given to any matter or document that is relevant including but not limited to—
(i)all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;
(ii)reports of proceedings in any House of the Parliament;
(iii)explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and
(iv)reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry, Formal Reviews or other similar bodies.
Thirdly the classic exposition of the application of s 35 is that of Dawson J in Mills v Meeking:[7]
The literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposes stated in Pt 5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose.[8] The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes.
[7](1990) 169 CLR 214 at 235.
[8]Miller v Commonwealth (1904) 1 CLR 668 at 674; Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503 at 513.
Although Dawson J was in dissent in the outcome this exposition has been approved on a number of subsequent occasions.[9] The further principal authorities concerning the proper approach to be adopted in the case of an alleged omission of express words from a statute are comprehensively analysed in Director Of Public Prosecutions (Vic) v Leys.[10]
[9]E.g. R v Boucher [1995] 1 VR 110 at 122-123; Director Of Public Prosecutions (Vic) v Ali [2009] 23 VR 203 at [44].
[10](2012) 44 VR 1 (Redlich, Tate JJA and Forrest AJA).
A court cannot adopt an implication which is too big or too much at variance with the language used. The error in drafting must be plain and contrary to the legislative purpose. In addition there must be a high degree of exactitude in any implication of words omitted by the legislature.[11]
[11]Taylor v Centennial Newstan Pty Ltd (2009) 76 NSWLR 379, Beazley JA at 393 [54-55] (Giles and Basten JJA agreeing); Director Of Public Prosecutions (Vic) v Leys (2012) 44 VR 1 at 38 [110] (Redlich, Tate JJA and Forrest AJA).
Caution must be adopted in using the statements of a minister introducing subordinate legislation in a political context as a sure guide to the meaning of the subordinate legislation itself.[12] In the present context the planning scheme provisions ultimately went through a process of parliamentary approval.[13]
[12]Cf Harrison v Melhem (2008) 72 NSWLR 380; Amaca Pty Ltd v Novek [2009] NSWCA 50.
[13]Section 38 P&E Act.
To understand the extrinsic materials relied on in the present case it is necessary to refer to the Planning and Environment Act 1987 (P&E Act). Part 1 provides for the Victoria Planning Provisions (VPPs). It enables the minister responsible for the P&E Act to prepare and approve standard planning provisions to be called the VPPs.[14]
[14]Section 4A P&E Act.
The VPPs may be amended at any time.[15] Such amendments proceed generally through the process ordinarily applicable to the amendment of planning schemes.[16] An amendment to the VPPs may also provide for an amendment to one or more specified planning schemes.[17]
[15]Section 4B P&E Act.
[16]Sections 4B-4F P&E Act.
[17]Section 4J P&E Act.
In turn a planning scheme for an area must include and must specify State standard provisions selected from the VPPs and local provisions.[18] Section 7(4) of the P&E Act provides:
[18]Section 7 P&E Act.
If there appears to be an inconsistency between different provisions of the planning scheme—
(a)the scheme must, so far as practicable, be read so as to resolve the inconsistency; and
(b)subject to paragraph (a)—
(i)the State standard provisions prevail over the local provisions; and
(ii)a specific control over land prevails over a municipal strategic statement or any strategic plan, policy statement, code or guideline in the planning scheme.
On 1 July 2013 amendment V8 inserted three new residential zones into the VPPs. These included the NRZ.
On 22 August 2013 amendment VC104 inserted a series of relevant provisions into the planning scheme. First it inserted a zone purpose which included the zone purposes now complained of together with other purposes subsequently deleted. Secondly it inserted a mandatory height control which provided that the maximum height of a building used for the purpose of a dwelling or residential building must not exceed the building height specified in the schedule to the zone. If no building height were specified, the height of a building must not exceed eight metres unless the slope of the natural ground level and any cross section wider than eight metres of the side of the building is 2.5 degrees or more, in which case the height of the building must not exceed nine metres.[19] Thirdly it provided a transitional provision:
Clause 32.09-8 does not apply to an application to construct a dwelling or residential building made before the approval date of the planning scheme amendment that introduced this clause 32.09 into the planning scheme. The requirements of clause 54 as they apply to clause 54.03-2 or of clause 55 as they apply to clause 55.03-2 as in force immediately before the set approval date continue to apply.
[19]The height limit was subject to certain specific exemptions which are irrelevant for current purposes.
The transitional provision inserted by amendment VC104 was the subject of an explanatory report prepared by the Minister as a planning authority[20] in accordance with the requirements of s 12(1)(e) of the P&E Act. This stated under the heading ‘What the amendment does’:
· Amending Clause 32.09 – Neighbourhood Residential Zone to include transitional provisions ensuring that approved development is not prohibited from being subdivided (Clause 32.09-2) and that the existing applications lodged, but not yet decided, are not subject to the maximum number of dwellings (Clause 32.09-3) and maximum building height provisions (Clause 32.09-8).[21]
[20]Section 8 P&E Act.
[21]VPPs amendment VC104 explanatory report, emphasis supplied.
Under the heading ‘Why is the amendment required?’ the report stated:
The government responded to the advisory committee’s report on the residential zones in March 2013. In that response, the government committed to including transitional provisions in the residential zones as recommended by the advisory committee. This was to ensure that existing applications would not be disadvantaged by the new provisions included in the new residential zones and the consequential changes to Clause 55 applying to four storey residential development.
Amendment VC104 was introduced following the exercise of the Minister’s powers pursuant to s 20(4) with respect to ss 17, 18 and 19 of the P&E Act. The Minister published reasons for the decision to use the power of intervention. These relevantly stated:
The government in March 2013 committed to including transitional provisions in the residential zones as recommended by the Reformed Zones Ministerial Advisory Committee in its Residential Zones Progress report dated 14 December 2012. This was to ensure that existing applications would not be disadvantaged by the new provisions included in the new residential zones and the consequential changes to clause 55 apply to four storey residential development.
I accept that the purpose of the relevant amendment is broadly stated in these documents as one of avoiding disadvantage to existing applications. Nonetheless the ambit of the proposed amendment is also plainly stated. The amendment was intended to provide that existing applications lodged but not yet decided upon were not subject to ‘maximum building height provisions contained in clause 32.09-8’. The plain meaning of the exemption provision itself was also that this is its effect. The provision went materially beyond the protection offered by s 6(3) of the P&E Act to uses of existing buildings but it did so only in a specific manner. There is no reason to infer it did not give full effect to the recommendation of the Ministerial Advisory Committee in adopting this course.
The VPPs and all planning schemes in Victoria were further amended by AMVC110. The explanatory report relating to that amendment stated that it was relevantly intended to change the VPPs and all planning schemes in Victoria by:
·Amending Clause 32.09 – Neighbourhood Residential Zone to:
o revise the purposes of the zone to better reflect its role and purpose
o insert a new sub clause specifying that a schedule to this zone must contain neighbourhood, heritage, environment or landscape character objectives to be achieved for the area: Clause 32.09-1 (Neighbourhood character objectives)
o specify that an application to subdivide land that creates a vacant lot less than 400 square meters must contain a minimum garden area of at least 25% under Clause 32.09-3 (Subdivision) except for land where an approved precinct structure plan or equivalent strategic plan applies
o delete existing clause 32.09-3 (Number of dwellings on a lot)
o insert a new sub clause specifying a minimum garden area requirement: Clause 32.09-4 (Construction or extension of a dwelling or residential building)
o delete the transitional provisions under Clause 32.09-6 (Construction and extension of two or more dwellings on a lot, dwellings on common property and residential buildings)
o specify a mandatory default maximum building height requirement of 9 metres and 2 storeys, update exemptions and delete the transitional provisions under Clause 32.09-9 (Maximum building height requirement for a dwelling or residential building)
o allow the maximum building height for land subject to inundation to be measured from the height of the finished floor level required by the relevant drainage or floodplain management authority under Clause 32.09-9 (Maximum building height requirement for a dwelling or residential building)
o include objectives set out in a schedule to this zone under Clause 32.09-12 (Decision guidelines)
o insert a new sub clause specifying transitional provisions for requirements introduced by Amendment VC110: Clause 32.09-14 (Transitional provisions).[22]
[22]Emphasis supplied.
The relevant amendment altered the form of the transitional exemption provision to that which was in force at the date of the Tribunal’s decision.
The minimum garden area requirement of clause 32.09-4 and the maximum building height and number of storeys requirements of clause 32.09-9 introduced by amendment VC110 do not apply to:
·A dwelling or residential building constructed on a lot before the approval date of amendment VC110.
·A planning permit application for the construction or extension of a dwelling or residential building lodged before the approval date of amendment VC110…[23]
[23]Clause 32.09-14.
No reference was made to the purpose of the transitional exemption provision in the explanatory report relating to VC110 but VC110 was also introduced by the Minister using powers of exemption pursuant to s 20(4) of the P&E Act with respect to the provisions of ss 17, 18 and 19 of the P&E Act. In giving reasons for the exercise of these powers the Minister assessed whether the benefit of the exemptions outweighed the effects on third parties and stated:
I consider that the benefits of exempting myself from sections 17, 18 and 19 of the Act and the regulations outweigh any effects of the exemption on third parties for the following reasons:
·Extensive consultation has occurred on the new and reformed zones as summarised above. Issues have been reasonably considered and the views of affected parties are known through the consideration of submissions through the advisory committee process.
·Prompt adoption and approval of the Amendment will allow for planning authorities to immediately commence strategic planning to align local provisions with the revised zones and in turn enable the orderly provision of diverse housing options for a growing population, while protecting the character of existing local neighbourhoods.
·Immediate implementation ensures that there is no opportunity for continued debate and uncertainty about both the changes to, and the role and function of, the revised residential zones.
·Amendment VC110 offers comprehensive exemption and transitional provisions to ensure that no individual is unjustly impacted by the changes. All existing planning permit applications and proposals for building permits will be covered by the transitional provisions.[24]
[24]Emphasis supplied.
I interpolate that the avoidance of unjust impact is not necessarily the same as the avoidance of all adverse consequences.
The current form of the NRZ1 control was introduced by AM123. The explanatory report relating to that amendment records that it relevantly applied to all land formerly zoned General Residential and applied a suite of new residential provisions to the City of Port Phillip. Six schedules were applied to different parts of the NRZ land within the municipality. The explanatory report relating to the NRZ provisions stated:
The NRZ applies to most Heritage Overlay areas and established residential areas that are remote from a large activity centre or not located along main roads with a tram or bus route.
Each NRZ schedule contains neighbourhood character objectives derived from approved content of the Port Phillip Planning Scheme.
The default NRZ mandatory height of 9m (2 storeys) is applied to the majority of land zoned Neighbourhood Residential. In some areas a 10m (3 storey) building height is applied to reflect the prevailing character (e.g. areas with tall heritage terraces).
The NRZ1 zone included the NRZ default mandatory maximum building height of 9 metres (two storeys) applicable to a dwelling/residential building. The explanatory report described the strategic basis for the amendment in the local planning policy framework as seeking to:
· Direct new housing development to ‘preferred housing growth areas’ which are locations where they have capacity for change and which offer highest access to public transport, shops and social infrastructure; and
· Limit new residential development within ‘established residential areas’ where considerations of neighbourhood character and heritage are paramount. This was to be achieved in part by managing growth in established residential areas to respect neighbourhood character and heritage and providing for more limited housing growth in established residential areas responding to neighbourhood character and heritage values.
No reference was made in this report to the transitional provisions which had been inserted by VC110.
I do not accept that the transitional provisions can be used to read down the requirement to have regard to the zone purpose.
(a) The meaning of the transitional provision is plain. It relates to the mandatory height control. It is not a more general provision providing that the application is to be considered on the basis of the law as it previously was prior to a specified date.
(b) The background material cannot overcome the express requirements of the planning scheme which required the responsible authority and in turn the Tribunal to have regard to the purpose of the zone and the municipal planning strategy supporting that purpose. Clause 32.09-13 states that the responsible authority before deciding on a permit application ‘must consider, as appropriate’ the purpose of the zone. The applicant’s case is that the exemption required the responsible authority and in turn the Tribunal to ignore the zone purpose insofar as it identified and bore upon the one and two storey character of the area within the zone. No implication of the type contended for could override the express provisions of the scheme.
(c) There is no inconsistency between the exemption provisions and the zone purpose provision. The effect of the exemption is that the mandatory prohibitions contained in the height control are removed. The effect of the zone purpose is that the identified character of the area within the NRZ1 remains a matter which must be considered when exercising the discretion with respect to a permit.
(d) The statement in the Minister’s reasons with respect to amendment VC110 that it was intended to offer comprehensive exemption and transitional provisions to ensure that no individual is unjustly impacted by the changes, begged the question as to what constituted unjust impacts. The transitional provisions did convey a very material benefit by way of exemption from the mandatory height control. Views might differ as to whether the application of the balance of the control was unjust.
(e) The statements of the Minister cannot be read as overriding the terms of the relevant amendment itself. There are obvious political reasons why they may have been expressed in strong language. But the Minister’s statements cannot stand in place of express provisions of the amendment.
(f) The words said to be implied in the exemption provision were never identified with exactitude by the applicant. To be effective they would need to exclude consideration both of a central part of the zone purpose and of the municipal strategy contained in the planning scheme which supports that purpose.
My conclusions on the construction question mean that the proposed grounds of appeal have no real prospects of success because they are premised upon the extended construction to which I have referred, but for completeness I need to say something more about the Tribunal’s decision and the applicant’s criticisms of it.
The Tribunal’s decision
The Tribunal’s decision set out background information with respect to the matter before it including the fact that the Tribunal had inspected the site.
The decision then dealt with the following issues:
· What is this proceeding about?
· What approach should I take with this repeat appeal?
· Will the proposal be an acceptable response to its physical and policy context?
In dealing with the last issue the Tribunal set out the relevant planning scheme provisions, described the physical context of the appeal site and then explained its conclusion.
In the course of argument the applicant drew attention to two passages in the Tribunal’s summary of the relevant controls.
First at [33] after referring to objectives stated in the Local Policy Framework (contained in the planning scheme) the Tribunal stated:
Although the proposal benefits from the Transitional Provisions at clause 32.09-9 of the Scheme, the above objective demonstrates that a contextual approach should be taken when exercising discretion regarding building height. I find that this is relevant even acknowledging that the Transitional Provisions apply.
There was no error in this approach.
Secondly at [40] after setting out the history of the NRZ and the manner in which different schedules were applied to different areas within the zone effecting varying maximum height controls, the Tribunal said:
The NRZ1, within which the site sits, does not vary the maximum height and scale allowable in the parent control. I find that this is a clear strategic intent to restrict the height and scale of development on the review site and in the surrounding area with the same NRZ1 zoning.
Properly understood this is a statement about the strategic intent underlying the application of the NRZ1 zone. It is preliminary to the Tribunal’s ultimate reasoning to which I shall now come.
The Tribunal set out its conclusions at [60]–[84] of its reasons.
60The Council submitted that the purpose of the zone needs to be read in a contextual manner, but with particular regard to the existing building and how that sits in the current physical context. The Council also submitted that in the previous decision, the Tribunal had regard to the physical context and how the proposal in that previous case, sat within that.
61The Council also submitted that although the site is in the NRZ, the context of the site is that it supports an existing large building, constructed to all four boundaries, amongst smaller buildings and so it already displays a different character than surrounding development and that this lends support to a proposed scale and height that would be incongruent with the existing scale surrounding the review site.
62Both officer reports for this matter (for the original permit application and for the substituted plans) primarily focus the assessment of the proposal against the findings in the previous Tribunal decision. There is little or no commentary on the merits of the proposal in a broader sense and there is no assessment or consideration of the proposal in light of changes to the zoning of the land since the previous decision.
63The applicant submitted that the transitional provisions outweigh any other policy changes in respect of the NRZ.
64The applicant also submitted that there is no consistency in terms of building height, scale and bulk in this area and acknowledged that the site sits within an Incremental Change area in clause 21.04. It was also submitted that great weight should be given to Council’s altered position, which is now one of support based on the amended plans.
65The repeat appeals principles I outlined earlier set out that I should assess the proposal on its own merits and in doing so give great weight to the previous decision in assessing the merits of the proposal before me. These principles also indicate that any change in planning policy that has occurred since the previous decision should also be taken into account. No alternative submissions were made to me.
66The zoning of the land has changed since the previous decision and to a zone that has a purpose that seeks (among others) “to recognise areas of predominantly single and double storey residential development” and “to manage and ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics.”
67I find that the zoning of the land as NRZ does not support this proposal at a scale of four storeys and a height of just over 13 metres. Whilst the proposal benefits from the transitional provisions at clause 32.09-9, just because a proposal takes benefit of these transitional provisions, does not mean that any such proposal automatically ‘gets a tick’. It must still be assessed against the purpose of the zone, and all other relevant policies and provisions of the scheme.
68The introduction of the NRZ to the site formed part of a rigourous process, that included a Panel that made recommendations on changes that should be made to the proposed NRZ schedules, in recognition of the character of certain areas, as I have already set out above.
69Whilst the previous decision found that the proposal in that case was an acceptable one in its existing context, that context is inclusive of the fact that the review site was zoned GRZ at that time.
70The current zone provisions, including the purpose, are different to what the GRZ were at the time of the previous decision. They give emphasis to one and two storey development, and also to ensuring that any new development responds to identified heritage characteristics.
71I give great weight to the fact that the purpose of the NRZ includes recognising areas of predominantly single and double storey residential development and the fact that it has recently been applied to the review site. Schedule 1 to the NRZ, which applies to the review site, does not vary the height limit.
72Other schedules to the NRZ have also been recently applied in other areas of the municipality to allow higher development, in recognition of the character of those areas which already support somewhat higher development than exists on the review site and surrounding NRZ1 area.
73I find that there is clear strategic direction in the Scheme for this area that seeks to ensure that the scale of development is at the lower end of the spectrum insofar as the Scheme is concerned for the municipality.
74There are some taller buildings in the broader area that might be described as ones which punctuate the skyline amongst lower scale development.
75The applicant tendered photographs of development that is higher than two storeys in support of its submissions. However, I note that none of those examples are within the same NRZ1 zoning and are quite distant from the review site. They all have differing contexts than that of the review site.
76The examples Mr Biles provided as providing some context of visibly high built form are some considerable distance from the review site, at over 300 metres. Whilst they are visible from Bank Street, directly in front of the review site, I do not find that they provide any significant factor in terms of existing character or context, given their distance.
77There are any number of much more significantly taller buildings that are visible from the review site and within the immediate vicinity, including in Southbank, near the corner of Bank Street and St Kilda Road and the Melbourne CBD.
78The proposal would not necessarily be inconsistent with such buildings, however, I find that such examples are too distant from the review site or too anomalous so as to rely upon them as acceptable comparisons. Further, the zoning of the land does not support this level of variation.
79Given the location of the review site with a lower scale building to the east, and the laneway abutting to the west, these will provide relatively open views from oblique angles at various points in the surrounding area. I find that the proposed height and scale of the building would not be respectful of the existing character of built form in the surrounding area.
80I find that the proposal will present as a prominent building in this context and one which would be significantly higher than other development in the immediate surrounds, and, given the zoning of the land and mandatory height controls within it, significantly higher than anything else that could be constructed on nearby land within the NRZ1.
81I find that the predominant character of the area is development up to two storeys in scale. Whilst there is development of a greater scale in the broader area, and although there are some examples of greater scale development in the more immediate context, I find that taking too broader view as to what the predominant scale is to which a proposal must respond to, would not be cognisant of the fact that the review site sits within the NRZ.
82I find that this change in policy places greater emphasis on the character of the area and in particular to the single and double storey scale of an area.
83I also acknowledge that including transitional provisions to allow a height or scale of building above which any new provision would otherwise allow, might result in an absurd outcome if it were refused based on height or scale alone. However, this must be read in the policy and physical context of the site.
84For these reasons, I find that the proposal is not an acceptable response to its physical and policy context.[25]
[25]Andrews and Morrissy Development Pty Ltd v Port Phillip CC [2018] VCAT 1365.
Analysis
In essence the applicant submits that in these reasons the Tribunal failed to give any or any proper effect to the transitional exemption to the height control contained in clause 32 of the planning scheme.
Because the Tribunal’s conclusions are expressed at some length it is useful to identify what I take to be the critical steps in its reasoning.
First, the Tribunal found that although the proposal benefited from the transitional exemption provisions it must still be assessed against the purpose of the zone and all other relevant policies and provisions of the scheme.[26] In this the Tribunal was correct:
[26]Reasons [67].
(a) Clause 71 of the scheme makes clear that the fact that a permit may be granted for a development does not mean that it should be granted. The transitional exemption provisions remove a prohibition that would otherwise prohibit the grant of a permit but they do not mandate the grant of a permit.
(b) The transitional exemption provisions contained in clause 32.09-14 of the scheme relevantly apply to the requirements of clause 32.09-09 with respect to that of a maximum building height and number of storeys. They do not purport to affect the zone controls which otherwise apply.
(c) The zone controls require a permit and expressly require the decision maker to have regard to the purposes of the zone and relevant policy (including that which underpins the purposes of the zone).
(d) The planning scheme ultimately requires the decision maker to synthesise relevant considerations and arrive at a decision as to the acceptable outcome having regard to all relevant considerations (which include the purpose of the zone).
Next the Tribunal relevantly concluded that it gave great weight to the purpose of the NRZ[27] and that it was the product of a clear strategic direction.[28]
[27]Reasons [71].
[28]Reasons [73].
The question of the weight to be given to a relevant factor is essentially a question of fact.
There are two senses in which it was open to regard the purposes of the zone as a critical consideration in the present case.
The first is that it is a fundamental principle of administrative law that a discretion under a control falls to be exercised for the purpose for which the control was imposed. Accordingly it must be open to regard the stated purpose of the zone control as a significant factor guiding the exercise of the discretion.
The second is that in the context of the present case the change in the purpose of the zone control constituted a relevantly material change to the context in which the Tribunal had previously considered a multi-unit residential redevelopment of the site. The change in the control counterbalanced the weight which the Tribunal might otherwise have been expected to give to the Tribunal’s previous decision.[29]
[29]See generally Zumpano v Banyule City Council [2016] VSC 420.
Of course the zone purpose cannot be regarded as itself amounting to a prohibition of development of more than two storey scale.
Nor did the zone purpose obviate a detailed consideration of the manner in which the proposal would in fact affect the character of the area.
But the Tribunal undertook precisely this exercise. It went on to conclude that the location and surrounds of the appeal site meant that the proposal would not be respectful of the existing character of built form in the surrounding area.[30] It explained the basis of this conclusion as follows.
[30]Reasons [79].
It concluded that the proposal would present as a prominent building significantly higher than other development in the area and (given the height controls) significantly higher than anything else that could be constructed on nearby land.[31]
[31]Reasons [80].
These conclusions were primarily factual conclusions as to the relative scale of the proposed building considered in its physical context. Their basis is plainly stated and they were open to the Tribunal.
Insofar as reference was made to the mandatory height controls in this context, such reference was legitimate because it related to the constraints upon land other than that which was governed by the transitional exemptions. Contrary to the applicant’s submissions paragraph 80 of the Tribunal’s reasons does not reflect an application of the mandatory height control to the appeal site itself.
Next (in further explanation of its overall conclusion concerning character) the Tribunal made findings as to the context in which the proposed scale of the building fell to be considered. First it found that the predominant character of the area in issue was development up to two storeys in scale.[32]
[32]Reasons [81].
Next it found that the notion of the relevant area in which character was to be assessed was properly informed by the imposition of the NRZ.[33]
[33]Reasons [81].
The NRZ placed emphasis upon the character of the area within it and in particular the single and double storey scale of the area governed by it.[34]
[34]Reasons [82].
No error of law has been identified in this analysis.
In turn the Tribunal’s analysis supported the conclusion that whilst in the absence of the height control the proposal did not fail simply because it was of greater than two storeys scale, nevertheless the scale must be assessed in the policy and physical context of the site and was an unacceptable response to that context.[35]
[35]Reasons [83] and [84].
I return to the terms of the proposed grounds of appeal. In my view they have no real prospect of success:[36]
(a) The Tribunal did not ignore the transitional exemption provisions governing the height control but expressly adverted to them; and
(b) The Tribunal did not fail to give appropriate effect to those provisions but founded its decision upon the application of the purpose of the zone control under which a permit was required and consideration of the acceptability of the proposed form of development within its specific physical context.
[36]Section 148(2A) Victorian Civil and Administrative Tribunal Act 1998.
The critical distinction between the mode of reasoning adopted by the Tribunal and the fundamental error asserted by the applicant may be illustrated by the observation that there is nothing in the Tribunal’s conclusion to suggest a lesser development of say three storey scale substantially within the existing building envelope (but extending beyond it), would have been regarded as inappropriate, although such a proposal would also have had to rely on the transitional exemption provisions. In other words the proposal failed because the Tribunal assessed the particular built form proposed in the particular location proposed against the purpose of the zone and the character expressly identified within it. It did not fail because of the application of the mandatory height control. The Tribunal did not (as the applicant submits) refuse the applicant’s proposal on the substantial basis that the proposal did not comply with the height and storey requirements in the NRZ.
It was the inconsistency of this particular proposal with the zone purpose which the Tribunal did not regard as acceptable.
Insofar as proposed ground 2 of the appeal is concerned I have already indicated that in my view clause 32.09-14 does not relevantly modify the zone control other than the mandatory height control. The transitional exemption is granted with respect to ‘the maximum building height and number of storeys requirements of clause 32.09-9’.
Conclusion
Accordingly leave to appeal should be refused.
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