Benedetti v Moonee Valley City Council
[2005] VSC 434
•14 December 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 7974 of 2005
| BENEDETTI | Appellant |
| v | |
| MOONEE VALLEY CITY COUNCIL and ANN DYNON | Respondents |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 NOVEMBER 2005 | |
DATE OF JUDGMENT: | 14 DECEMBER 2005 | |
CASE MAY BE CITED AS: | BENEDETTI v MOONEE VALLEY CITY COUNCIL | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 434 | 1st Revision: 14 December 2005 |
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Appeal on questions of law pursuant to s.148 of the Victorian Civil and Administrative – Land subject to controls – Common form conditions - Scope and ongoing effect of conditions – Validity of conditions governing alteration to development and the construction of further works and buildings – No error of law – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr F. O'Brien SC with Ms S. Porritt | Wilson Lawyers |
| For the First Respondent | Mr J. Pizer | Maddocks |
| For the Second Respondent | Mr H. M. Wright QC with Ms J. Dixon | Mahonys |
HIS HONOUR:
Angler Parade, Ascot Vale is an unmade street adjacent to the Maribyrnong river. Private properties abutting it which form part of the escarpment above the river bank have for some time been the subject of special development controls additional to the zoning controls regulating land use. In 1994 such properties were the subject of a Skyline Area control pursuant to the then Essendon Planning Scheme which had as its purpose the following:
*generally to protect areas along rivers from visual intrusion caused by the inappropriate siting or appearance of buildings and works.
*to encourage development in keeping with the character and appearance of the area.
*to protect and enhance the skyline when viewed from the river or its banks.
*to encourage development consistent with any concept plan approved by the "government for the area".
The control relevantly provided:
"A permit is required to construct a building or to construct or carry out works. This includes a fence and roadworks and associated street furniture.
This does not apply to:
*buildings and works in a residential zone or on reserve land if they are no more than six metres above ground level.
*repairs and routine maintenance to buildings and works."
The guidelines for permit stated:
"Before deciding on an application, the responsible authority must consider:
*whether the location, bulk and appearance of the building or works would be in keeping with the character and appearance of the area.
*whether the location, bulk and outline and appearance of the building or works would be in keeping with and enhance the skyline when viewed from the river.
*any concept plan approved for the area."
It can be seen that the control is one which in the first instance broadly covers buildings and works. Indeed, it specifically includes incidental matters such as fences which are commonly excluded from development permit controls.
The breadth of the requirement is, however, materially reduced by the exemption relating to buildings and works which are no more than six metres above ground level and located in a residential zone or on reserve land.
Both the terms in which the purpose and the guidelines for permit are stated suggest that the purpose of the control is to achieve the ongoing protection of visually sensitive views from the river and its banks (including views of the skyline) from the impact of intrusive buildings and works which are inappropriately sited or have an inappropriate appearance having regard to the existing character and amenity of the area.
On 10 November 1994 the responsible authority granted a permit for the erection at 8 Angler Parade of "a residential dwelling as will exceed six metres in skyline area in accordance with … endorsed plans and subject to the following conditions." Some seven conditions were enumerated including:
"1.The layout of the site and the size of the proposed buildings and works as shown on the endorsed plan, shall not be altered or modified (whether or not in order to comply with any Statute, Statutory Rule or By-law or for any other reason) without the consent of the Responsible Authority.
2.No new buildings or works shall be erected or constructed and no existing buildings shall be enlarged, rebuilt or extended (whether or not to comply with any Statute, Statutory Rule or By-law or for any other reason) without the consent of the Responsible Authority."
Plans were endorsed and the residence shown on the plans was constructed for the permit holders Mr and Mrs Benedetti.
The site has a significant slope towards the river and the residence steps up the slope and back from Angler Parade. The main section of the house is two storeys with living rooms on the ground floor and four bedrooms on the upper floor. Two patios were also provided including one on the roof of the garage.
In 2003 the Benedettis lodged a further permit application seeking permission for a two storey extension under the Moonee Valley Planning Scheme Design and Development Overlay Control which was the successor to the Essendon Planning Scheme Skyline Area control. This application was refused, firstly by the responsible authority and then on appeal by the Tribunal as constituting a proposal which would result in an unreasonable intrusion into the views from an adjoining property.
The Benedettis then formulated a proposal which would not exceed six metres in height and would fall within the exemption which the planning scheme continued to provide with respect to proposals "to construct a building or to construct or carry out works in a residential zone … if they are no more than six metres above ground level."
The proposed buildings and works were commenced and the responsible authority sought declarations from the Victorian Civil and Administrative Tribunal ("the Tribunal") that the development was in breach of Conditions 1 and 2 of the permit to which I have referred.
On 2 August 2005 a deputy president of the Tribunal made orders in the following terms:
"1.The Tribunal declares that if the building work currently being carried out on the subject land, 8 Angler Parade, Ascot Vale is completed in accordance with Building Permit No. 050233 issued on 29 April 2005 by Gibson Dell Pty Ltd, the resulting development will contravene Condition 1 of Planning Permit No. ES7339 issued on 10 November 1994.
2.The Tribunal declares that if the building work currently being carried out on the subject land (8 Angler Parade, Ascot Vale) is completed in accordance with Building Permit No. 050233 issued on 29 April 2005 by Gibson Dell Pty Ltd, the resulting development will contravene Condition 2 of Planning Permit ES7339 issued on 10 November 1994."
Mrs Benedetti now appeals pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 to this Court on two questions of law.
Question 1: Whether on the proper construction of Condition 1 in planning permit No. ES7339 issued 10 November 1994 under the Essendon Planning Scheme the Tribunal misconstrued the scope and effect of Condition 1 by giving Condition 1 on going operation after completion of the works permitted by permit No. ES7339 issued 10 November 1994.
Question 1 is directed to the temporal ambit of Condition 1.
Condition 1 is a condition in common form. Conditions to like effect have been utilised since prior to both the current legislation and the current form of planning scheme.[1]
[1]In City of Brighton v Eura Nominees Pty Ltd (1983) 56 LGRA 263 Gobbo J referred to a condition in like terms as being a common condition.
At the date of the grant of the permit s.4(1) of the Planning and Environment Act 1987 ("the Act") provided that the objectives of planning in Victoria included:
"(c) to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;
(d)to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;"
Section 4(2) provided in part:
"(b) to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;"
Section 6(1) provided a planning scheme for an area:
"(b) may make any provision which relates to the use, development, protection or conservation of any land in the area."
Section 6(2) provided a planning scheme may:
"(b) regulate or prohibit the use or development of any land;"
Part 4 of the Act provides a set of procedures applicable if a planning scheme requires a permit to obtain for use or development of land.
Section 61 provided that upon an application for permit the responsible authority may decide –
"(a) to grant a permit; or
(b) to grant a permit subject to conditions; or
(c) to refuse to grant a permit on any ground it thinks fit."
In turn s.62 relevantly provided that:
"(1) In deciding to grant a permit, the responsible authority must—
(a)include any condition which the planning scheme or a relevant referral authority requires to be included; …
(2)The responsible authority may include any other condition that it thinks fit including—
(a)a condition that specified things are to be done to the satisfaction of the responsible authority (or) a Minister, public authority, municipal council or referral authority;
…
(i)a condition that plans, drawings or other documents be prepared by the applicant and lodged with the responsible authority for approval before the use or development or a specified part of it starts; and
(j)a condition requiring changes to be made to any plan or drawing forming part of the application for the permit; …
(4)The responsible authority must not include in a permit a condition which is inconsistent—
(a) with the Building Act 1993; or
(b) the building regulations under that Act; or
(c)a relevant determination of the Building Appeals Board under that Act in respect of the land to which the permit applies."
In turn s.149 of the Act further provided:
"(1) A specified person may apply to the Tribunal for the review of—
(a)a decision of a specified body in relation to a matter if a planning scheme specifies or a permit contains a condition that the matter must be done to the satisfaction, or must not be done without the consent or approval, of the specified body; …"
Section 68 of the Act relevantly provided:
"(1) A permit for the development of land expires if –
(a)the development or any stage of it does not start within the time specified in the permit; or
…
(b)the development or any stage is not completed within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit …"
The scheme of these provisions insofar as is relevant is as follows:
(a)The objectives of planning extend to matters such as the protection of the amenity and visual character of areas such as those adjoining the Maribyrnong River in the vicinity of the appeal site;
(b)The principal means of regulating such sites envisaged by the Act is by way of planning schemes;
(c)Planning schemes may provide for permit controls;
(d)Permits may be granted subject to conditions;
(e)Some planning permit conditions are mandatory including conditions required by a planning scheme;
(f)Save for such conditions the responsible authority is given what is on its face a broad discretion to impose any other condition it thinks fit including specified categories;
(g)Development approval may be tied to a condition specifying a requirement for approved plans;
(h)A condition may specify that things are to be done to the satisfaction of the responsible authority or require further consent as to subsidiary aspects before they are done;
(i)Conditions may not be inconsistent with certain specified legislation and subsidiary legislation;
(j)A failure to give consent to the approval of plans or to the modification of plans pursuant to a condition which envisages such consent is reviewable before the Tribunal;
(k)There is a statutory scheme governing expiry of a permit.
A condition in the form of Condition 1 in the present case may be regarded as having two purposes. First, the condition has a restrictive function. It ties the proposed development to a permitted relationship between size and context. Secondly, it has a facilitative function enabling by way of proviso minor modifications of endorsed plans and consequently to the permitted development. The condition does not, however, merely provide for modification of the plans, it provides that the layout of the site and the size of the proposed buildings and works shown on the plan shall not be altered or modified without the consent of the responsible authority.[2]
[2]As the Tribunal observed in the present case with respect to a contention not pursued before this Court that the condition should be read as applicable only to amendments to the endorsed plans. "Had that been the meaning of the condition it would have been easy enough for whoever drafted it to direct the restriction to amendments to endorsed plans, however, the condition directs itself to ‘the layout of the site and the size of the proposed buildings’ as depicted on the endorsed plans." Benedetti v Moonee Valley City Council [2005] VCAT 2227 (2 August 2005) at [23]
The practical desirability of a facilitative provision for secondary consent is obvious. Likewise there are obvious practical reasons which favour a continuing power in this regard. In Cope v Hobsons Bay City Council[3] the Tribunal stated:
"In the present case, the permit allowed the development of the land with a building and provided that the development, as shown on endorsed plans, must not be altered without the written consent of the responsible authority. This form of permission contemplates the possibility that the development will be altered from that shown on the endorsed plans. It is arguable that the permit might be regarded as only contemplating the possibility of written consent being given if this occurred before the development commenced or, at least, before the development was completed. But common experience tells us that development is sometimes carried out in a manner different than that permitted, yet the differences are such that it is still reasonable to consent to them after the event. Why should a permit expressly allowing the possibility of consent being given for the alteration of the development be interpreted to as to exclude this reasonable possibility? Further, it is also commonplace that once development is carried out the owner may wish to effect minor changes to the development. Why should a permit expressly allowing the possibility of consent being given for the alteration of the development be interpreted so as to deny this possibility in every circumstance simply because the development has been carried out?"[4]
[3](2004) 19 VPR 96
[4]Above at 107 [49]
This appeal is not, however, concerned with the limits of the facilitative function of Condition 1 but with its restrictive aspect.
The contention that Condition 1 is spent
The first question of law is directed to whether Condition 1 is no longer of any operative effect but was spent upon the completion of the buildings and works the subject of the permit. It reflects the appellant's case before the Tribunal where the first submission made on her behalf was that once the building authorised by the permit was complete, the condition "came to an end".[5] Ground 1 of the Notice of Appeal is that:
"1. The decision of the Tribunal should be set aside as the Tribunal determined that Condition 1 had ongoing operation where the 1994 development was completed."
[5]The appellant's case before me was ultimately argued on a different basis. It was submitted that "except for minor ongoing operational requirements a development permit is 'spent' on completion of the development."
In my view Condition 1 continues to have effect while the owner of the land takes the benefit of the permit. It will have no effect if the permitted development which includes an element over six metres is demolished, but while such development is maintained, the conditional obligation not to modify the layout or the size of the buildings persists.
This conclusion is supported by four principal considerations:
(a)the statutory scheme governing expiry of permits contemplates that a development permit may continue to have effect after completion of the development;
(b) the plain meaning of the condition;
(c) the long-standing understanding of such conditions; and
(d) the practical consequences of the alternative conclusion.
The scheme of s.68 of the Act is that a development permit will expire if the development is not commenced within a certain time or completed by a certain time. The section does not provide that the permit expires upon completion of the development. The scheme of the Act does not preclude the possibility that a development may be subject to continuing conditions.
The plain meaning of Condition 1 is that it is intended to operate prospectively and that it imposes an ongoing limitation upon the alteration or modification of the layout of the site and the size of the proposed buildings and works. In this regard it is directly comparable to Condition 5 which required the external materials and appearance of the building to be maintained.[6] Permit conditions are intended to be read sensibly and in a non-technical manner.[7] There is nothing in the language of Condition 1 to suggest that it was not intended to have an ongoing effect.
[6]Condition 5 provides: "The materials, colours, decoration and/or finishes to be applied to the exterior of the buildings or works as described on the drawings or schedules endorsed to accompany this permit shall not be altered without the consent of the responsible authority."
[7]Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works [1972] VR 781 at 796-797 per Pape J.
Conditions in the form of Condition 1 have been understood to have a continuing operation for many years. In City of Brighton v Eura Nominees Pty Ltd[8] Gobbo J addressed the effect of a condition in the form in question which relevantly required the maintenance of the size of buildings and works and the layout of a site in circumstances where use of part of the site for the purpose of car parking changed.[9] It is apparent that his Honour considered the questions before him on the necessary assumption that the condition continued to have effect after a development was completed. Further, it is apparent that the legislative regime affecting the operation of such conditions has been specifically considered and addressed by s.149 of the Planning and Environment Act 1987 since the decision in Eura Nominees. At that time as his Honour observed there was no right of appeal in the event of refusal of secondary consent by a responsible authority. The legislature has since addressed this problem and the legislative review of the adequacy of the relevant controls has not resulted in a stipulation that conditions of the type in issue have no effect upon the completion of the development to which they relate.
[8]Above
[9]Gobbo J stated: "In my view condition 1, which is apparently a common condition in permits, did not effectively embrace every detail noted on the endorsed plan. It was confined to precluding alteration, without consent, of the size of the buildings and works. A notation as to use for parking was not, in my opinion, one relating to buildings and works in the present situation. As to modifications in layout, I am not satisfied that in the present case of an earlier use notation, there is a change in layout where that area has a notation as to works in the latest permit that does not repeat the earlier notation. No doubt there may be some situations where the description of car parking areas in a plan may represent the layout of a site. It will be a question of construction in every case. I am not prepared to find that the permit was in conflict with the 1969 permit." Above at 272-3
If Condition 1 were spent upon the completion of the development the physical context in which the building and works were permitted could be radically altered immediately after they were completed. It would be possible as of right to cut away the lower portion of the site so as to make the permitted buildings more visually prominent or to erect additional buildings below six metres in height which materially affected the perceived bulk of the permitted development by emphasising the bulk of the built form culminating in a protrusion above 6 metres. The Tribunal adverted to these considerations in the following passage:
" It is quite common for conditions to regulate matters on a development site such as fences, landscaping, trees and the like which viewed in themselves and in the absence of the permitted development could be erected, demolished, altered or enlarged ‘as of right’. Once one accepts as Cope’s case requires that one must, that these conditions are not ‘spent’ on completion of the development, they operate as an indefinite constraint on what could otherwise be dealt with ‘as of right’ under the relevant Scheme. To hold otherwise would entail the view that items such as landscaping and so forth can be immediately reversed or demolished forthwith upon completion of the development a view of things which would reduce the planning permit process whether at the Responsible Authority level or the Tribunal level to a solemn farce."[10]
[10]Above at [29]. The reference to Cope's case is a reference to the decision of the Tribunal in Cope v Hobsons Bay City Council (2004) 19 VPR 96.
The good sense of the Tribunal's observations as to the relevant practicalities in this regard does not depend on the decision in Cope's case.[11]
[11]Gobbo J regarded the practical consequences of competing constructions as a significant matter in Eura Nominees: "The alternative view would mean that there could never be any alterations that had the effect of departing from the layout of a previous permit. This would mean on one view that the land would be locked into its development forever. This is an absurd result and one which detracts considerably from the argument of the Council." Above at 272
The submission that the Tribunal erred in relying on Cope's case
The Tribunal stated that it was bound by the reasoning in Cope's case in which a Tribunal constituted by the President and a Senior Member held that secondary consent provisions could operate to allow modification of a development after its initial completion. The Tribunal in the present case reasoned that if this was so conditions such as Condition 1 must also operate as restrictions after the initial completion of a development. The Tribunal stated in part:
"In Cope’s case the Tribunal allowed the permit condition to be regarded as kept alive for the benefit of the permit holder. Logically however, where such a provision stays open as the basis for a secondary consent, it must also remain alive as a restriction."[12]
[12]Above at [24]
For the reasons I have stated, in my view the restrictive aspect of Condition 1 is not spent irrespective of arguments based on the nexus between that aspect and the facilitative aspect of the condition. It is, accordingly, unnecessary to consider whether Cope's case was correctly decided.
The submission that major works are not constrained by Condition 1
The appellant submits next that if new works are proposed which could not form the subject of secondary consent pursuant to Condition 1, then such works likewise are not restricted by the condition. It is submitted such works are independently regulated by the planning scheme and new buildings and works less than six metres in height are as of right.
In my view Mr Pizer is correct in submitting that this contention does not go to the construction point raised by question 1. It does not go to the question of whether Condition 1 is spent. Further, the point taken was not taken before the Tribunal and ultimately raises questions of mixed fact and law. It cannot now be taken before this Court in the absence of leave which should not in the circumstances be granted.[13]
[13]Cf Coulton v Holcombe (1986) 162 CLR 1; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at 1608 [51]
Practical consequences
The appellant further submits that to give permit Condition 1 ongoing operation would result in obligations having a practical effect which is unjust in operational terms particularly as they may affect successors in title. I do not accept this submission is of great weight:
(a) The Planning and Environment Act 1987 provides for public inspection of permits;[14]
(b)The legislation governing sale of land provides for a warning to purchasers in the following effect;
" (ca) Important notice to purchasers:
The use to which you propose to put the property may be prohibited by planning or building controls applying to the locality or may require the consent or permit of the municipal council or other responsible authority. It is in your interest to undertake a proper investigation of permitted land use before you commit yourself to buy." [15]
[14]Planning and Environment Act s.70
[15]Sale of Land Act 1962 s.32(2)(ca)
(c)The enforcement of permit conditions will ultimately be subject to equitable considerations.[16]
[16]see eg. Planning and Environment Act 1987 s. 125
Inconsistency with the Scheme
Ground 2 of the Notice of Appeal is:
"2 The decision of the Tribunal should be set aside as the Tribunal determined that Condition 1 had ongoing operation where the ongoing operation of Condition 1 was inconsistent with the Scheme namely that the 2005 works which did not require a permit at or below 6 metres."
In my view the terms of the permit control in force at the relevant time did not preclude the imposition of an ongoing condition having effect beyond the controls otherwise expressly imposed by the planning scheme. I shall elaborate the reasons for this conclusion by reference to Condition 2.
Ground 3 of Appeal
Ground 3 of Appeal is:
"3. The decision of the Tribunal should be set aside as the Tribunal determined that Condition 1 had ongoing operation as it reasonably related to the 2005 development works having regard to a planning matter or policy where Condition 1 could not relate to a planning matter or policy as the condition prohibited (subject to conditional permission) any alteration to the development of the land."
I find this ground difficult to interpret but insofar as it seeks to suggest that Condition 1 does not address a planning matter or policy, it is clear in my view that it directly relates to the ongoing consequences (including visual impact) of the permitted development. As such it gives direct effect to the purposes of the relevant control.
Conclusion on Question 1
For the above reasons the Tribunal did not err in law in giving Condition 1 ongoing effect.
Question 2: Whether Condition 2 in planning permit No. ES7339 issued on 10 November 1994 under the Essendon City Council Planning Scheme, was ultra vires the scheme as it prohibited, conditional upon the permission of the first respondent, the whole of the development of the land.
It can be seen that this question is not directed to construction but validity. The basis on which it was contended the condition was beyond power shifted in argument. I shall seek to deal with the various submissions put forward in what I hope is a logical sequence.
The submission that Condition 2 amounts to a complete prohibition on further development
The appellant submitted at various points in argument that Condition 2 "wholly prohibits any development on the site." As the terms of question 2 itself reflect this involves a basal oversimplification. In summary:
(a)If the permitted building is demolished the condition will cease to operate. The condition attaches to the continuing enjoyment of the benefit of the existing permit.
(b)The condition itself expressly provides for further consent and the withholding of such consent is subject in turn to review on the merits before the Tribunal.
(c)The redevelopment of the site is potentially the subject of an "omnibus" permit which embraces new or modified development over six metres and the built form and layout of the site as a whole, as suggested but not finally decided in Eura Nominees:
"Where there is an existing permit and an owner or occupier or interested person seeks to bring about an improved development, it would appear to be open to such person to apply on a basis that brought about a wholly new permit for the site in question. In that event, on its proper construction, the second application involves a replacement permit for the site and is not really a mere alteration of an existing permit. No conflict would appear to arise because the second application and the second permit proceeds on the basis of a permit for new development. Nor does it not purport to seek a variation of an earlier permit. In the event it will not be necessary for me to decide whether the Board was entitled to construe the application in this case in this manner." [17]
[17]Above at 271-2
The purpose of the Condition
The appellant contends Condition 2 is ultra vires as not made for a valid purpose and as unreasonable.[18]
[18]Ground 5 of the Notice of Appeal is: "The decision of the Tribunal should be set aside as the Tribunal determined that Condition 2 was valid as it related to a planning matter or policy in the permission granted in Permit No. ES7339 issued 10 November 1994 where Condition 2 could not relate to a planning matter or policy as it wholly prohibited (subject to conditional permission) the development of the land."
The fundamental test of validity of purpose of a planning permit condition was stated by Walsh J in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council[19]. His Honour described the purpose for which the power to exercise conditions may be imposed as follows:
"… not as giving an unlimited discretion as to the conditions which may be imposed, but as conferring a power to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised, as ascertained from a consideration of the scheme and of the Act under which it is made. This purpose may be conveniently described, in accordance with the expression used by Lord Jenkins in Fawcett Properties Ltd. v. Buckingham County Council, as being "the implementation of planning policy", provided that it is borne in mind that it is from the Act and from any relevant provisions of the Ordinance, and not from some preconceived general notion of what constitutes planning, that the scope of planning policy is to be ascertained."[20] (Citation omitted.)
[19](1970) 123 CLR 490
[20]Above at 499-500
This statement of principle was affirmed by the High Court in Bathurst City Council v PWC Properties[21].
[21](1998) 195 CLR 566 at 577 [15]
It has been applied in this State since the decision of Harris J in 271 William Street Pty Ltd. v. City of Melbourne[22]. It has been held to apply by Ashley J in Crichton v. City of Moorabbin[23] despite the agitation of an alternative test.
[22][1975] VR 156 at 162
[23](1992) 2 VR 372 at 376
It is applied by McHugh, Gummow and Hayne JJ in the decision of Western Australia Planning Commission v Temwood Holdings Pty Ltd[24].
[24](2004) 137 LGERA 232 per McHugh J at [56], per Gummow and Hayne JJ at [93]
The application of the relevant principle gives rise to the question whether Condition 2 of the permit is reasonably capable of being related to the implementation of planning policy, when the scope of such policy is ascertained from the Planning and Environment Act 1987 and the Essendon Planning Scheme as it was at the date of the grant of the permit.[25]
[25]Cf Temwood above per Gummow and Hayne JJ at [112]
In the present case it is apparent from the purposes of the control that the siting in context of the permitted development and the impact of such development upon the character of its context are critical considerations. As I have said the purposes of the control include:
*generally to protect areas along rivers from visual intrusion caused by the inappropriate siting or appearance of buildings and works.
*to encourage development in keeping with the character and appearance of the area.
*to protect and enhance the skyline when viewed from the river or its banks.
Each of these matters involves an assessment of the effect of the proposed development upon its setting.
The appellant submitted:
"An examination of the design objectives of the schedule to the design and development overlay shows the planning purpose to be the protection of the river from visual intrusion by siting and appearance and height intrusions on the skyline. It does not have an amenity aspect."
It is not the objectives of the current design and development overlay which are relevant but the objectives of its precursor the Skyline Area control which was in force at the date of the grant of the permit. Nevertheless the primary characterisation stated might equally well be applied to this control. Insofar as it is submitted that the control "does not have an amenity aspect" this presumably is intended to convey that it was not directed to private amenity but rather to public amenity enjoyed from the river or its banks. Although I agree that this may be regarded as the primary focus of the control I would have thought that its stated purpose in relation to matters such as the character and appearance of the area would extend to views from other private properties.
Whether this be so or not, however, the appropriateness of the siting or appearance of the permitted buildings and works in a particular context viewed from public areas may potentially be affected by the erection or construction of new buildings or works. The effect of permitted buildings and works upon the character and appearance of the area is also potentially affected by new buildings or works. Likewise the effect of the permitted buildings and works upon views of the skyline from the river or its banks is potentially affected by new buildings and works. New buildings or works might affect the visual impact of the permitted development either by adding to the perceived bulk of that development or by removing intermediate elements in view lines or by changing the backdrop including the skyline against which the permitted development is viewed. The Tribunal identified the first consideration and concluded:
" The 1994 permit was required because of the ‘Skyline Areas’ Overlay in the old Essendon Planning Scheme. A conditional prohibition on the introduction of further bulk by way of built structure onto a structure which already exceeds the prima facie ‘as of right’ limit under the Overlay for as of right developments viz. 6m clearly relates to both the permission and the planning policy which requires the permission to be obtained."[26]
[26]Above at [29]
In my view it cannot be said a condition regulating the site context of permitted development by controlling buildings and works should necessarily be regarded as other than a condition required for the purposes of the relevant control. It may be that in a particular fact situation it could be demonstrated that the condition could not be regarded as having been imposed for such purpose but there is no factual basis on which that can be suggested in the present case. It follows that the Tribunal's conclusion as to the relationship between the condition and planning policy cannot be said to be wrong in law.
Insofar as the test of validity of a planning permit is alternatively to be understood as requiring that the condition relates reasonably and fairly to the development permitted (as agreed by the parties in Temwood and as held by McHugh and Callinan JJ in that case)[27] Condition 2 controls the effect of the permitted development within its context. As such it was on its face open to the responsible authority to regard it as reasonably and fairly relating to the development permitted. Further, as I have already stated, the Tribunal found as a fact that the condition related to the relevant permission.
[27]In 271 William Street (above) Harris J described the test applied by him as "somewhat different and perhaps wider than" this test. Whether the two tests would generally yield a different result in practice is however to be doubted as Ashley J observed in Crichton (above) at 376.
In Temwood McHugh J stated:
"A condition must "reasonably and fairly relate" to the permitted development to be valid. A condition is "relevant" to the development if it falls within the proper limits of the Commission's functions under the Town Planning Act and the Metropolitan Region Scheme Act or is imposed to maintain proper standards in local development. The condition need not relate to the subdivision in question, if the subdivision is one of a series of subdivisions of a larger parcel of land, and the condition relates to the larger parcel of land as a whole."[28]
[28]Above at [72]. Cf Lloyd v Robinson (1962) 107 CLR 142
The first sense of relevance identified reflects the fundamental test of validity to which I have already referred. It was in my view clearly open to the Tribunal to conclude the condition fell within the proper limits of the Council's functions under the Planning and Environment Act 1987 and the Essendon Planning Scheme. Further, as I have stated, the Tribunal concluded as a fact that in the present case the condition was directed to the achievement of relevant planning purposes.
In addition Condition 2 in the present case was on the face of it imposed "to maintain proper standards in local development." It was held to be a condition relating to the proposed development and in my view that conclusion was also open to the Tribunal.
The submission that Condition 2 cannot regulate development otherwise permitted by the planning scheme
It is submitted on behalf of the appellant that Condition 2 cannot impose a greater degree of land use regulation than does the planning scheme control itself[29]. I do not accept this is so for reasons which also apply to Condition 1.
[29]Ground 4 of the Notice of Appeal is: "The decision of the Tribunal should be set aside as the Tribunal determined that Condition 2 was valid where it wholly prohibited any use or development under the scheme (subject to conditional permission) contrary to the development of the land otherwise available as of right under the scheme."
(a)The power to impose conditions is found in the Act and not in the planning scheme control.
(b)The Act imposes specific limitations upon inconsistency of conditions with specified controls such as regulations made under the Building Control Act 1993 but it does not so specify with respect to provisions concerning as of right development under a planning scheme.
(c)Planning schemes may impose cumulative controls. The fact that the primary zone controls do not constrain development does not preclude a more specific control in the form of a development overlay which does regulate development. The fact that some form of development does not require a permit under the overlay does not preclude further incidental regulation of such form of development pursuant to the conditions of a permit provided those conditions are otherwise valid in the sense I have already stated.
(d)The constraint imposed by Conditions 1 and 2 is voluntarily assumed by the landowner if, but only if, the landowner takes the benefit of the permit. A landowner may accept the condition or benefit of a permit or decline it. The permit conveys a form of net benefit and incidentally imposes a limitation. Thus the Tribunal was correct to observe:
"The effect of Condition 2 is to permit a development which could not be carried out as of right viz. No. 8 Angler Parade in its existing form subject to a conditional prohibition on any further development, even if that development could otherwise have been carried out as of right.
The permit must be read as a whole. It allows a substantial development on No. 8 but conditionally prohibits further development."[30]
In Lloyd v Robinson[31] Kitto, Menzies and Owen JJ said:
"If the Board has performed its statutory duty by giving approval to the subdivision subject only to conditions imposed in good faith and not with a view of achieving ends or objects extraneous to the purposes for which the discretion exists, the inescapable effect of the Act is that the landowner must decide for himself whether the right to subdivide will be bought too dearly at the price of complying with the conditions."[32] (Emphasis added)
(e)Permit conditions often regulate matters such as the preservation of landscaping and fences which are not the subject of direct planning control. In so doing, they enable resolution of urban design issues at a higher degree of detail than the planning scheme provisions would otherwise allow. In turn such conditions by better defining the terms of consent, facilitate outcomes which are potentially in the interest of the permit applicant, the responsible authority, persons directly affected by the proposed development and the public generally. The utility of such outcomes supports a broad construction of the power.
[30]Above at [27]-[28]
[31](1962) 107 CLR 142
[32]Above at 154
The submission that Condition 2 is beyond power because it regulates the land as a whole
The appellant submitted to the Tribunal that Condition 2 was "ultra vires or beyond power as it attempts to regulate the whole of the use of the land not just as specified in Schedule 1 of Clause 43.02." In submission to this Court it was put that the subject matter of the relevant power was to control the height of buildings over six metres only.
For the reasons I have stated it was open to the responsible authority to impose incidental controls upon the site context of the permitted development by way of condition upon that development if it was satisfied in the circumstances of the case that it was reasonable to do so for the purposes of implementing the relevant planning policy. The Tribunal concluded as a fact that the condition implemented such policy and related to the development. It has not been demonstrated that it was not open to the Tribunal to so conclude as a matter of fact.
The submission that major works are not constrained by Condition 2
The appellant further submitted that if new works are proposed which could not form the subject of secondary consent pursuant to Condition 2, then such works likewise are not restricted by the condition. It was submitted such works are independently regulated by the planning scheme and new buildings and works less than six metres in height are as of right.
In my view there is no logical reason for limiting the primary restriction contained in Condition 2 by reference to the ambit of the facilitative proviso. To the contrary, if works are so major that they exceed what might be permitted by way of secondary consent, such works will alter the context of the permitted buildings and works by so much the more and thereby defeat the purpose of the condition.
Unreasonableness
It was also contended that Condition 2 could not reasonably have been imposed by the responsible authority.
As I have indicated on its face Condition 2 is both directed to matters within the scope of the relevant planning policy and directly related to the context and net effect of the permitted development.
Further the Tribunal held as a matter of fact that Condition 2 related “to both the permission and the planning policy which requires the permission to be obtained”.
The contrary does not appear to have been argued before the Tribunal[33] and no basis has been established for rejecting the Tribunal’s conclusions.
[33]Save on the basis that condition 2 imposed an unauthorised constraint on the exercise of a right.
Both before the Tribunal and in this Court counsel for the appellant placed considerable reliance upon authority governing the validity of subordinate legislation. In my view such authority cannot be substituted for the authority of the High Court which bears directly on the question of the appropriate test of validity of planning permit conditions.
Nevertheless, I accept that the question of whether a permit condition is "reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised as ascertained from a consideration of the scheme and the Act under which it is made", may be regarded as involving an inquiry similar to that required in testing the validity of a regulation at least insofar as the test of reasonableness necessarily embraces considerations of proportionality. In South Australia v Tanner[34] Wilson, Dawson, Toohey and Gaudron JJ said:
"In the course of argument, the parties accepted the reasonable proportionality test of validity (cf Deane J in The Commonwealth v Tasmania (the Tasmanian Dam Case)[35], namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose. However, they differed in the answers to which their application of the test led. The same test, in relation to a power limited to regulation, was expressed by Dixon J in Williams [v City of Melbourne][36], as being, in substance, whether the regulation goes beyond any restraint which could be reasonably adopted for the prescribed purpose."[37] (References taken to foot.)
[34](1989) 166 CLR 161
[35](1983) 158 CLR 1 at 260
[36](1933) 49 CLR 142 at 156
[37]Above at 165
In Minister of State for Resources & Anor v Dover Fisheries Pty Ltd[38] Gummow J, after referring to the above passage, went on to state:
"Earlier, in Coulter v The Queen[39], Mason CJ, Wilson and Brennan JJ had also treated Williams v City of Melbourne[40] as authoritative, asking whether the Rules of Court in question were 'a reasonable means of attaining the ends of the rule-making power'. See also Minister for Foreign Affairs and Trade v Magno[41].
These observations in the High Court indicate that whatever may be the sweep of the proportionality principle in federal constitutional law, when the question of validity is concerned with delegated legislation made pursuant to a law of the Parliament whose validity itself is not impugned, the proportionality principle is differently focused. The observations by their Honours further suggest that here at least there has been no significant shift in doctrine and, indeed, that the subject still is controlled by what was said by Sir Owen Dixon over 50 years ago; ... The fundamental question is whether the delegated legislation is within the scope of what the Parliament intended when enacting the statute which empowers the subordinate authority to make certain laws: see Austral Fisheries[42].
The treatment by four members of the High Court in Tanner of the remarks of Dixon J in Williams as identifying what they understood by the proportionality criterion as applied to the validity of delegated legislation, brought with it, in my view, the subsequent elaboration by Dixon J of his views. In the joint judgment, to which Dixon CJ was a party, in Shanahan v Scott[43], the following was propounded. A power such as that in s 25(1) of the Act does not authorise the making of regulations which vary or depart from the positive provisions of the Act, or which go outside the field of operation which the Act marks out; such a power does not support attempts to widen the purposes of the Act, to add new and different means of carrying them into effect, or to depart from or vary the plan which the legislature has adopted to obtain its ends. These are indicia which assist in deciding the general question of whether the regulations in question are a reasonable means of attaining the ends of the legislative delegation of power."[44]
(References taken to foot.)
[38](1993) 43 FCR 565
[39](1988) 164 CLR 350
[40](1933) 49 CLR 142
[41](1992) 37 FCR 298 at 309-311, 327-329
[42](1993) 40 FCR 381 at 383-384, per Lockhart J
[43](1957) 96 CLR 245 at 250
[44]Above at 577-8
It was submitted by Ms O'Brien that the last mentioned indicia support the view that in the present case Condition 2 was beyond power. In my view, however, the permit condition does not vary or depart from the positive provisions of the Planning and Environment Act 1987 pursuant to which it was imposed. Nor does the condition go outside the field of operation which the Act marks out. Nor does it widen the purposes of the Act, add new and different means of carrying such purposes into effect, or depart from or vary the plan which the legislature has adopted to obtain its ends. As I have sought to explain the enabling Act envisages the imposition of permit conditions which provide a finer grain of control than the controls otherwise provided in a planning scheme. Permit conditions can and often will materially add to the requirements otherwise imposed by a planning scheme. The critical question which arises with respect to a particular condition such as that now in issue is whether it is reasonably capable of being regarded as related to a relevant planning purpose. For the reasons that I have already stated I am of the view that it is and that the conclusion of the Tribunal in this regard discloses no error or law.
Conclusion
For the above reasons the appeal fails.
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