Couttie v Bayside Council & ors
[2016] VSC 772
•14 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
S CI 2015 06495
| ANTHONY COUTTIE and DORA COUTTIE | Plaintiffs |
| v | |
| BAYSIDE COUNCIL & ORS | Defendants |
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JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 & 6 September 2016 |
DATE OF JUDGMENT: | 14 December 2016 |
CASE MAY BE CITED AS: | Couttie v Bayside Council & ors |
MEDIUM NEUTRAL CITATION: | [2016] VSC 772 |
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PLANNING & ENVIRONMENT – Application for leave to appeal and appeal from the Victorian Civil and Administrative Tribunal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 – Application for planning permit to develop land in Neighbourhood Residential Zone for three dwellings – Bayside Planning Scheme – Whether development exempt from permit requirement under Design and Development Overlay cl 43.02 – Purpose of Neighbourhood Residential Zone cl 32.09 – Application of transitional provision cl 32.09-3 – Whether the Tribunal failed to take relevant considerations into account – Statutory construction principles – Leave to appeal granted – Appeal allowed – Proceeding remitted to the Tribunal for determination according to law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. O’Brien | DSA Law, Lawyers & Consultants |
| For the Defendants | No appearance |
HER HONOUR:
The plaintiffs seek leave to appeal against the order of the Victorian Civil and Administrative Tribunal made on 30 November 2015 setting aside the decision of the responsible authority and granting a permit for the development of land at 14 Normanby Street, Brighton.
The proposed development involves the demolition of the existing dwelling and the construction of a building consisting of three apartments with an attic and basement parking. Two apartments share the ground floor and third apartment is located under the roof on the second level (in the attic).
Bayside City Council refused to grant a permit for the proposed development on the grounds that the proposal was contrary to the provisions of cls 32.09, 22.05 and 52.06 of the Bayside Planning Scheme, the building had an excessive footprint and failed to comply with the provisions of ResCode cl 55, including in relation to neighbourhood character, side and rear setbacks, solar access to open space and front fences.[1]
[1]Pintar v Bayside CC [2015] VCAT 1880 [1].
Prior to the hearing in the Tribunal, the applicants circulated amended plans that included minor changes to the basement, minor increases in the setbacks to the ground and first floor, and an updated roof plan.
The review conducted by the Tribunal was a ‘repeat appeal’. The Tribunal had previously refused to grant a permit for the proposed development.[2] It found that while the site was not in an area in which the policy framework encouraged the redevelopment of the site in a manner that contributed to increased housing diversity and urban consolidation objectives, the framework did not preclude consideration of the type of development proposed.[3] However, the proposed building was not acceptable having regard to heritage considerations.[4] Furthermore, it had an unacceptable impact on the amenity of the dwelling at the rear of the site.[5]
[2]Pintar v Bayside CC [2013] VCAT 2131 (‘2013 determination’).
[3]Ibid [6].
[4]Ibid [7].
[5]Ibid [8].
Tribunal’s Reasons
In its reasons for decision,[6] the Tribunal commenced by addressing a number of preliminary issues:
(a)whether a permit was required by cl 43.02 of the Design and Development Overlay Schedule 1 (DDO1);
(b)the significance of the 2013 determination and the fact that the proceeding was a ‘repeat appeal’;
(c)the effect of Amendment C106 to the Bayside Planning Scheme, which was made following the lodgement of the application for the planning permit, and the application of transitional arrangements in the Planning Scheme; and
(d)whether neighbourhood character policy was relevant.
[6]Pintar v Bayside CC [2015] VCAT 1880 (‘Reasons’).
In relation to the first of these issues, the following question of law was referred to a legal member of the Tribunal:[7]
Do the provisions of clause 43.02 of the Design and Development Overlay Schedule 1 mean that a planning permit is required as not falling under the Permit not required exemptions under the Buildings & Works Section 2.0 of the Schedule?
[7]Reasons [7].
The legal member of the Tribunal answered that question as follows:[8]
No. The provisions of clause 43.02 of the Design and Development Overlay Schedule 1 mean that a planning permit is not required because the proposed building falls within an exemption under clause 2.0 of the Schedule.
[8]Reasons, Appendix B [29].
The Tribunal held that the proposed building, while being a building more than 6 metres in height, was ‘a building with a building height of not more than two storeys’ where each storey was less than 3.5 metres measured from the floor level to the finished floor level of the floor above or to the ceiling (excluding staircases architectural voids and light wells)’ and was therefore exempt from the permit requirement under DDO1.[9]
[9]Reasons, Appendix B [8].
As to the fact that the review was a ‘repeat appeal’, the Tribunal outlined the four factors that might justify a departure from the 2013 determination. It referred to the changes to the planning context that had occurred since the 2013 determination, namely, the rezoning of the subject land as a Neighbourhood Residential Zone (NRZ) Schedule 3, the replacement of the strategic planning document ‘Melbourne 2030’ by ‘Plan Melbourne’, and the identification of the subject site in the Residential Housing Strategic Framework Plan in cl 21.02 of the Planning Scheme as being within a ‘minimal residential growth area’.[10]
[10]Reasons [16].
The Tribunal made the following findings, having regard to the repeat appeal principles, the Tribunal’s observations in the 2013 determination and the current proposal:[11]
●I have no concern with the demolition of the existing dwelling subject to an appropriate new form, consistent with earlier findings.
●I agree with the conclusion that the site is not located in an area where policies of housing and diversity and urban consolidation are given greater weight than issues of neighbourhood character.
●I further agree that this earlier decision that three dwellings as proposed can be considered subject to any development having regard to matters of heritage, existing or preferred character and amenity considerations.
●The proposal is similar in that it proposed three dwellings in one building form and provides basement parking. The proposal does differ however in that it visually appears as a single storey building form with Apartment 3 being located within the roof form rather than a traditional two storey building.
[11]Reasons [19].
As to the transitional arrangements for the NRZ, the Tribunal recorded that it had been referred to many other Tribunal decisions addressing the transitional arrangements and stated that it did not intend to repeat the ‘many conclusions’ of these cases. Based on its review of these decisions, the Tribunal considered that it had ‘appropriately acknowledged a shift in the weighting between neighbourhood character and urban consolidation objectives resulting from the application of the NRZ’.[12]
[12]Reasons [20].
As to the neighbourhood character policy, the Tribunal noted that all parties accepted the relevance of cl 22.06. It said:[13]
What is sought here is to consider the proposed development in its physical context, in its neighbourhood and against the issue of neighbourhood character. Two key objectives of clause 22.06-2 are relevant to the case include:
●To ensure that development is responsive to the preferred future character of the area.
●To retain and enhance the identified elements that contribute to the character of the area.
[13]Reasons [25].
In relation to all of these matters, the Tribunal described its task as follows:[14]
My task is to decide whether or not the proposal will adversely affect the significance of the place and the character of the area and whether this proposal is acceptable having regard to the site’s physical, heritage and strategic context. Impacts on the amenity of neighbouring properties are also relevant matters, as are the acceptability of the car-parking arrangements.
[14]Reasons [26].
The Tribunal therefore asked itself the following questions:[15]
●Will the location, bulk, form or appearance of the proposed building adversely affect the significance of the heritage place and the character of the area?
●Does the proposal contribute to unacceptable amenity impacts?
[15]Reasons [27].
The Tribunal answered these questions under the headings ‘Built form issues’ and ‘Amenity impacts’.[16] Under ‘Built form issues’, the Tribunal considered the neighbourhood character and heritage policies in the Bayside Planning Scheme; under ‘Amenity issues’ it considered overshadowing, overlooking, visual bulk and setbacks, landscaping and internal amenity.
[16]It also considered under the heading ‘Other issues’ car-parking and the height of the proposed front fence, neither of which is presently relevant.
In assessing the proposal against neighbourhood character policy, the Tribunal referred to the future preferred character of the relevant precinct, Precinct C1, and identified a number of relevant precinct guidelines. It found that the policy for Precinct C1 sought a spacious garden setting and openness of the streetscape.[17] The Tribunal therefore considered the proposed building setbacks and the proposed plantings, stating, in relation to the front setback:[18]
Putting aside the issue of using the front setback for private open space for Apartment 1, I am satisfied that the proposed development provides for a spacious front garden and is consistent with the preferred design guidelines for Precinct 1.
[17]Reasons [30].
[18]Reasons [33].
The Tribunal also assessed the proposal against the objective of minimising the dominance of car-parking facilities, driveways and crossovers in response to the plaintiffs’ complaint about ‘a highly visible ramp’ and their submission that the adjoining property would suffer a loss of amenity from the noise generated by cars using the ramp and ‘issues relating to Melbourne Water’. In relation to the latter, the Tribunal said:[19]
Melbourne Water have assessed the proposal and provided no objection. I see no reason to draw a different conclusion to their assessment and will assure that any Melbourne Water conditions are included in the permit.
[19]Reasons [37].
The Tribunal also referred to the objectives of ResCode (cl 55.02-1) in relation to neighbourhood character and preferred neighbourhood character.[20] It described the character of Normanby Street and recorded the Tribunal member’s own observations based on her site inspection. The Tribunal noted that whilst there was a level of cohesiveness, Normanby Street was not without more recent development and there was evidence of differing housing styles and forms.[21]
[20]Reasons [28]. The objectives are:
·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.
[21]Reasons [30].
The Tribunal concluded that, having regard to the provisions of cl 22.06, it was satisfied that the proposed design had addressed the design guidelines and was a comfortable fit for the neighbourhood context.[22]
[22]Reasons [42].
The Tribunal then moved to consider heritage policy and, in particular, the evidence given by the heritage experts. It referred to the proposed building as ‘being of an apartment typology’, stating that it could find no reference to apartment typology within the Council’s heritage policy and that it did not share the (plaintiffs’) concern that the proposed building was an apartment building.[23]
[23]Reasons [53].
The Tribunal also considered roof form under heritage policy. It heard evidence from three heritage experts, each of whom gave evidence about the pitch of the roof and the dormer windows. The Tribunal found the roof form and windows within the roof to be acceptable within the Normanby Street landscape, observing that it did not differ from the form generally found elsewhere in that landscape.[24]
[24]Reasons [56].
The Tribunal also considered height, glazing and front setbacks by reference to expert heritage opinion, concluding that the proposed development achieved the objective of clause 22.05 in that it promoted a development that was respectful to the architectural, social and/or historic character of the precinct and made a positive contribution to its built form and amenity.[25]
[25]Reasons [63].
The Tribunal then moved to consider amenity impacts and considered each of the relevant matters. In its summary of amenity impacts, the Tribunal considered visibility, stating that just because a building was visible, that did not make it inappropriate. The Tribunal referred to the 2004 decision in Rowcliffe Pty Ltd v Stonnington CC,[26] where the Tribunal observed that if mere visibility became the test across metropolitan Melbourne, it would be virtually impossible to construct buildings above the prevailing scale and this would, in turn, make it impossible to achieve the clearly stated urban consolidation objectives expressed in the planning scheme.
[26][2004] VCAT 46 (29 January 2004).
As to the proposal before it, the Tribunal concluded:[27]
The proposed building will be visible to the street and the adjoining properties. It will appear highly visible for a period of time until the perimeter landscaping has matured. I find that the interface between the subject site and the adjoining properties is acceptable.
[27]Reasons [79].
Grounds of Appeal
The proposed notice of appeal contains four questions of law, two of which have a number of parts. As a consequence, the proposed notice of appeal raises no less than 11 questions of law. An outline of submissions of 40 pages accompanied the proposed notice of appeal. Seven lever arch folders of cases and materials were filed. In addition, a large number of loose cases and other materials, including photographs, were handed up.
The errors of law alleged in the proposed notice of appeal can be distilled to the following:
(1)The Tribunal erred in determining that the subject site and surrounds were not subject to the provisions of cl 43.02 of the Design and Development Overlay - Schedule 1 in the Planning Scheme.
(2)The Tribunal erred by failing to take into consideration the third purpose of the Neighbourhood Residential Zone to ‘limit opportunities for increased residential development’.
(3)The Tribunal erred in failing to assess the proposed roof form and the apartment typology of the proposed building under the neighbourhood character policy as well as under the heritage policy.
(4)The Tribunal erred by failing to take into consideration the ResCode provisions of cl 55.06-4 providing for secluded open space in respect of ground floor Apartment Number 1.
(5)The Tribunal erred by failing to take into consideration the purposes and decision guidelines of the Special Building Overlay (cl 44.05) of the Planning Scheme.
(6)The Tribunal erred in denying the applicants natural justice by taking into account matters highlighted in the decision of Rowcliffe Pty Ltd v Stonnington CC[28] without giving the plaintiffs the opportunity to explain why those matters were irrelevant.
[28][2004] VCAT 46.
Of these grounds, only (1), (2), (3) and (6) were seriously pressed by the plaintiffs. Ground (6) is a sub-set of ground (2).
In fact, this application for leave to appeal and the appeal itself can be disposed of by reference to grounds (1), (2) and (3). Grounds (4) and (5) even if made out, would not be vitiating errors, as they relate to fairly minor aspects of the proposal.
Ground 1 – Permit requirement under DDO1
The applicants submit that the Tribunal erred in determining that the provisions of cl 43.02 of the DDO1 overlay control meant that a planning permit was not required for the proposed development because it fell within the permit exemption in DDO1.
A permit is required under cl 43.02-2 to construct a building or to construct or carry out works. However, this does not apply if a schedule to the overlay specifically states that a permit is not required. Clause 2.0 in Schedule 1 provides as follows:
Permit Not Required
A permit is not required to construct a building or construct or carry out works for any of the following:
● Navigational aids.
● A radio mast.
● A television antenna.
● A television mast associated with the building.
●A building with a building height of not more than two storeys* provided that each storey is less than 3.5 m measured from the floor level to the finished floor level of the floor above or if there is no floor above, to the ceiling (excluding staircases, architectural voids and light wells).
● Buildings which have a building height of not more than 6.0 m.*
● Buildings or works on land at 24 The Esplanade, Brighton …
* These exemptions do not include a roof deck located above the second storey of a building.
It is not in dispute that the building height of the proposed development is 6.82 metres, which is above the limit of 6.0 metres referred to in the sixth dot point in cl 2.0.
The plaintiffs submit that in order to benefit from the permit exemption in cl 2.0, the proposed development has to have height of not more than 6.0 metres, even if it is otherwise a building with a building height of not more than two storeys where each storey is less than 3.5 metres high. In other words, the plaintiffs submit that to be exempt from the permit requirement the proposed building has to comply with the sixth dot point as well as the fifth dot point in cl 2.0.
The Tribunal held that if the building met any of the criteria in cl 2.0 of DDO1, it was exempt from the need for a permit under cl 43.02-2. It held that the criteria in cl 2.0 are not cumulative, and must be read independently. This is because the introductory words in cl 2.0 provide that, ‘A permit is not required to construct a building or construct or carry out works for any of the following’. According to the Tribunal, the word ‘any’ is clear and unambiguous. It means ‘any one of the following’, not all or some of the following. Accordingly, it does not matter that a building that falls within the fifth dot point has a building height of more than six metres.
The Tribunal noted that, apart from the clear words in the introductory sentence, an interpretation that the criteria (in the dot points) are cumulative and that the proposal had to meet each criterion would render several of the exemption categories meaningless. It would be impossible for a building of two storeys, where each storey was 3.49 metres high and which would otherwise comply with the exemption in the fifth dot point, to comply with the exemption in the sixth dot point. It would be illogical to require compliance with both criteria when, in many instances, they would be mutually exclusive.
The plaintiffs submit that the Tribunal has impermissibly read down the plain words in the Planning Scheme to render the six metre permit trigger inapplicable to two storey buildings. If the Tribunal’s construction is permitted to stand, this will effectively mean that a building of nearly 8.5 metres (two storeys plus a basement) will not trigger the permit requirement under DDO1. A building of two storeys, each under just 3.5 metres, plus a basement up to 1.19 metres above natural ground level, plus a gap between the first and second floor levels of, say, 0.3 metres, giving a total building height of 8.47 metres, will be exempt from the permit requirement.
According to the plaintiffs, a construction which would convert a control expressed as a six metre height control into an eight metre plus height control is contrary to the plain meaning of the words in cl 2.0, which could easily have set the maximum height at 8.5 metres if it was intended to operate in this way. They say that the clear words in the control support the construction for which they contend, namely, that if either of the two storey or six metre building height controls are not met, then the requirement to obtain a permit under DDO1 is triggered.
The plaintiffs further submit that the Tribunal was required to consider the meaning of the words in DDO1 in the context of the mischief sought to be regulated. Section 35 of the Interpretation of Legislation Act 1984 and the High Court decisions in CIC Insurance Ltd v Bankstown Football Club Ltd[29] and K & S Lake City Freighters[30] outline the ‘modern approach’ to statutory interpretation as requiring context to be considered in the first instance.
[29](1997) 187 CLR 384.
[30]K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309.
The plaintiffs spent considerable time taking the Court through the history of the height controls in the Bayside area, commencing with the height control in place before the new format planning schemes were introduced and moving through the controls under the new format schemes, some of which also imposed mandatory height limits.
The mischief that DDO1 was intended to address, so the plaintiffs contend, is clear from an understanding of the history and purpose of the control, particularly in relation to the construction of attics and other developments within the roof where the roof form does not match the surrounding roof structures. They submit that historically the absolute height of six metres was expressed to be independent of any number of storeys to ensure that all developments above six metres had to be assessed under DDO1, whether the building was one or two storeys’ high.
The plaintiffs submit that an interpretation which allows each of the triggers in cl 2.0 to operate independently better supports the purpose of DDO1. Building height is thereby regulated either by the number of storeys (and 3.5 metre floor heights within each of those storeys) or by an absolute height of six metres.
The history of height controls in the Bayside area was set out in some detail by the Tribunal in 2014 in the decision of Farag v Bayside CC.[31]That history shows there to have been a mandatory height limit of two storeys or six metres for many years from the 1980s onwards. It also establishes that there was concern over the pressure to build to greater heights along the foreshore as a result of the desirability of Bay and city skyline views and that it was considered necessary to take steps to protect neighbourhood character in the area.
[31][2014] VCAT 459.
That history is of limited assistance in the present case. There is no mandatory height restriction in DDO1 – building height simply operates as a permit trigger. Furthermore, the history as recounted in Farag suggests that the six metre height limit was an alternative to the two storey height limit, not an upper limit as is submitted by the plaintiffs in respect of the exemption in DDO1.
Moreover, recent authority on the principles of statutory interpretation places emphasis on the text of the statute. In Treasurer of Victoria v Tabcorp Holdings Ltd,[32] the Court of Appeal, following the High Court decision in Thiess v Collector of Customs,[33] stated that because the legislature expresses its intention through the language that it uses in the statute itself, if the words in the statute are clear and unambiguous and can be intelligibly applied to the subject-matter, the provision must be given its ordinary and grammatical meaning.[34]
[32][2014] VSCA 143.
[33]Thiess v Collector of Customs (2014) 250 CLR 664.
[34]Treasurer of Victoria v Tabcorp Holdings Ltd [2014] VSCA 143 [2]; see also Tuite v R [2015] VSCA 148 [71]; DiPaolo v Salta Constructions Pty Ltd [2015] VSCA 230 [26]-[39].
In this case, it is impossible to ignore the ordinary and grammatical meaning of the words ‘any of the following’ followed by a colon and the series of dot points. While the meaning of the text following the asterisk that appears in dot points five and six may be less than clear, it is very clear that dot points five and six are alternatives. To qualify for the permit exemption, the building may satisfy either dot point five or dot point six.
Furthermore, as a matter of logic, if the six metre height limit were absolute, there would be no need for fifth dot point, which makes special provision for two storey buildings.
In my view, it is sufficient to satisfy either one of them in order to qualify for the permit exemption.
The Tribunal did not err in its construction of cl 2.0 of DDO1. Ground 1 is not made out.
Ground 2: Neighbourhood Residential Zone
The subject land is zoned Neighbourhood Residential Zone Schedule 3 (NZR3). It is also designated as a ‘minimum residential growth area’.
The NRZ has a number of purposes reflecting its conception as a means of protecting the existing low rise, low density character of some parts of Melbourne’s suburbs. This in turn reflects the strategy in cl 11.04-4 of the State Planning Policy Framework of protecting Melbourne and its suburbs ‘from inappropriate development’.
The plaintiffs submit that the Tribunal erred by failing to take into consideration the third purpose of NRZ, which is to ‘limit opportunities for increased residential development’.
The Neighbourhood Residential Zone is cl 32.09 of the Planning Scheme. Its ‘purpose’ is expressed by reference to a number of purposes as follows:
To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
To recognise areas of predominantly single and double storey residential developments.
To limit opportunities for increased residential development.
To manage and ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics.
To implement neighbourhood character policy and adopted neighbourhood character guidelines.
To allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs in appropriate locations.
The decision guidelines in cl 32.09-11 provide that before deciding on an application, the decision-maker must consider, as appropriate, the purpose of the zone.
Clause 32.09-3 limits the number of dwellings on a lot. Specifically, it provides:
The number of dwellings on a lot must not exceed the number specified in a schedule to this zone. If no number is specified, the number of dwellings on a lot must not exceed two.
However, cl 32.09-3 also contains a transitional provision. It provides:
Clause 32.09-3 does not apply to an application to construct two or more dwellings on a lot made before the approval date of the planning scheme amendment that introduced this clause 32.09 into the planning scheme.
As the permit application was lodged with the Council prior to the commencement of the NRZ controls, the subject land has the benefit of the transitional provision in cl 32.09-3. The restriction on the number of dwellings does not apply. However, the remaining parts of NRZ control do apply.
The plaintiffs submit that operation of the transitional provision in the NRZ merely permits what would otherwise have been prohibited – the construction of more than two dwellings on a lot – to be considered on the merits. However, the policy balance now needs to be considered as more strongly favouring development that respects the neighbourhood character and limits the opportunities for new residential development.
I have set out the structure and some of the detail of the Reasons above. The Tribunal did not separately consider the application of the NRZ and its purpose to the proposed development. It referred to the NRZ control principally in relation to changes to the planning context since the 2013 determination having regard to the fact that the application for review was a ‘repeat appeal’.[35] The Tribunal asked itself what changes had occurred since the 2013 determination and referred to the changed zoning and the replacement of the Melbourne 2030 strategy by Plan Melbourne. The purposes of the NRZ, including the third purpose, were set out in full in this context. However, the Tribunal said nothing further about the third purpose in the Reasons.
[35]Pintar v Bayside CC [2013] VCAT 2151.
The relationship between the third purpose of the NRZ and the transitional arrangements was dealt with indirectly by the Tribunal in a single paragraph headed ‘Transitional arrangements’.[36] Relevantly, the Tribunal said:[37]
I was referred to many Tribunal cases addressing the issue of transitional arrangements. I do not intend to repeat the many conclusions of these cases but note that based on my review of the decisions referred to me, I conclude that I have appropriately acknowledged a shift in the weighting between neighbourhood character and urban consolidation objectives resulting from the application of the NRZ.
[36]Reasons [20].
[37]Reasons [20].
Apart from recording the submission of one of the objectors that the changes to the planning context had strengthened the weight of heritage and neighbourhood character considerations,[38] the passage extracted above is the extent of the Tribunal’s consideration of the new zone control and how it is affected by the transitional provision.
[38]Reasons [17].
In my view, neither reproducing the text of what appears under ‘Purpose’ in cl 32.09 of the Planning Scheme nor stating that the Tribunal has appropriately acknowledged a shift in the weighting between neighbourhood character and urban consolidation objectives amounts to giving consideration to the purpose of the NRZ, in particular, the third purpose.
Failure to assess the proposed development against the purpose of limiting opportunities for increased residential development will only constitute an error of law if the purpose was a consideration to which the Tribunal was bound to have regard in assessing the proposal.[39] What factors a decision-maker is bound to consider when making a decision is determined by construing the statute conferring the discretion, in this case, the Bayside Planning Scheme. If not expressly stated, relevant factors may be inferred from the subject-matter, scope and purpose of the statute.[40]
[39]Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24, 39-42.
[40]Ibid.
Clause 32.09-11 required the Tribunal to give consideration to the NRZ purpose ‘as appropriate’. However, the clear policy direction given by NRZ3 and supported by State Strategic Planning Policy is to ‘manage and ensure that development respects the identified neighbourhood character, heritage, environment or landscape characteristics’ and to ‘limit opportunities for increased residential development’. Whether or not there was an applicable limit on the number of dwellings, the policy of limiting increased opportunities for residential development remained in place and relevant in assessing the proposal.
It seems to me to be quite clear that the Tribunal did not give consideration to the third purpose. The Reasons at [20] make reference only to the shift in emphasis from urban consolidation objectives to neighbourhood character. This, in my view, is insufficient to found an inference that the third purpose was considered. Moreover, while referring to ‘many Tribunal cases addressing the issue of transitional arrangements’, the Tribunal did not attempt to carry out the kind of contextual analysis undertaken in other Tribunal decisions that have grappled with the tension between the transitional provision removing the limit on the number of dwellings and the ongoing relevance of the third purpose.[41]
[41]See, for example, Whitefeather Group Pty Ltd v Bayside CC [2014] VCAT 1193 [39]. The contextual approach involves assessing proposals benefiting from the transitional provisions against the third purpose having regard to the size of the review site compared to the prevailing lot size in the surrounding neighbourhood, whether medium density development of similar intensity already exists in the neighbourhood, the extent to which the height of the proposed development is consistent with the surrounding height and whether the proposal complies with any varied standards to ResCode.
It is necessary to give effect to both the transitional provision and to the third purpose of the NRZ. I am not persuaded that the Tribunal has done this. In my view, it has failed to take into account a relevant consideration, namely the third purpose of the NRZ. The error is a vitiating error in that had the Tribunal considered the third purpose, its decision to grant the permit application might have been different.
Ground 2 is made out.
The plaintiffs also submitted that the Tribunal took into account an irrelevant consideration in the form of urban consolidation objectives. This submission was based on the Tribunal’s reference to the decision in Rowcliffe Pty Ltd v Stonnington CC,[42] when considering the visibility of the proposed development. In Rowcliffe, the Tribunal stated that it would be impossible to achieve the clearly stated urban consolidation objectives expressed in the Planning Scheme if mere visibility made proposals unacceptable. The Tribunal’s reference to Rowcliffe is a little puzzling. However, I do not consider that it shows the Tribunal to have unlawfully applied urban consolidation objectives in its decision-making. In my view, nothing turns on the Tribunal’s reference to Rowcliffe.
[42][2004] VCAT 46.
It is not necessary to consider the alternative formulations of ground 2 or the further ground (ground 6) that the plaintiffs were denied natural justice by the Tribunal’s use of Rowcliffe.
Ground 3 – Neighbourhood Character Policy
This ground has again been drafted to include a number of discrete components. As I understand the complaint, it is that the Tribunal considered some matters under heritage policy, but did not consider those matters under neighbourhood policy. Two matters are identified: the issue of ‘apartment typology’ and the proposed roof form and reverse dormer windows.
According to the plaintiffs, the neighbourhood character policy had an important role to play in supplementing and supporting the heritage policy but was capable of separate application to these issues. The plaintiff submits that the Tribunal ‘downplayed’ the relevance of cl 22.06 and then failed to consider it at all in relation to these material issues.
The plaintiff has a point in relation to the roof form and reverse dormer windows.
Clause 22.06-1 sets out the policy basis for the neighbourhood character policy as including the implementation of the Bayside Neighbourhood Character Review 2004 and the Bayside Neighbourhood Character Review – Stage 2, July 2008 (Revised August 2014). Clause 22.06-2 set out an objective in the same terms. These documents define precincts based on the delineation of areas of similar character elements.
Clause 22.06-3 provides that where a permit is required to develop land in residential areas, it is policy to take into account the precinct guidelines, including objectives, design responses and ‘avoid statements’ for each precinct.
The subject land is in Precinct C1. The precinct guidelines include the following:
Objective Design Response Avoid To ensure that new buildings and extensions do not dominate the streetscape.
Recess upper level elements from the front facade
High pitched roof forms with dormer windows
There is therefore a clear guideline to avoid high pitched roof forms with dormer windows in Precinct C1.
The Tribunal considered the roof form by reference to the expert opinion of the heritage witnesses. It did not consider the roof form by reference to neighbourhood policy and gave no consideration to the exhortation in the planning scheme to avoid high pitched roof forms with dormer windows.
In my view, given the importance of the neighbourhood character policy, its specific reference to avoiding a certain roof form, and the fact that the proposed development includes precisely what it is policy to avoid, the ‘avoid statement’ was a relevant consideration that should have received separate consideration in the context of the neighbourhood character policy objective. The Tribunal set out the relevant policy objective[43] and discussed it[44] in the Reasons. However, it neglected to deal with the ‘avoid statement’, while discussing the siting and width of the proposed building, its height and the fact that the design response employed a combination of hard and soft treatments.
[43]Reasons [32].
[44]Reasons [34].
The Tribunal carefully considered roof form under heritage policy[45] and did so explicitly by reference to the Normanby Street streetscape. It found that the proposed roof form differed from the form generally found elsewhere in the Normanby Street streetscape. This difference was analysed and found to be acceptable by reference to heritage evidence and considerations, not by reference to neighbourhood character policies.
[45]Reasons [54] – [56].
In my view, the Tribunal erred in not having regard to the roof form and dormer windows in the context of the relevant objective in the neighbourhood character policy. I am satisfied that this was a vitiating error, in that the Tribunal’s decision may have been different had it considered this matter.
Ground 3 is made out on this basis.
However, I am not persuaded that the Tribunal failed to take into account a relevant consideration in not considering ‘apartment typology’ in the context of the neighbourhood character policy.
In relation to ‘apartment typology’, the plaintiffs submitted as follows:
It is clear that the Tribunal was aware of the issue of apartment typology but in dismissing it (as a non-issue under the express provisions of the heritage overlay – clause 22.05) the Tribunal did not consider the issue from a neighbourhood character or ResCode perspective and failed to consider and apply the provisions of the neighbourhood character policy (clause 22.06) and the ResCode provisions (clause 55.02 – Standard B1) to the question of apartment typology (being a three unit apartment with basement car-parking) in a predominantly single storey, single dwelling heritage setting.
None of the objectives for Precinct C1 make such a typology a specific issue. Furthermore, the Tribunal gave attention to the character of Normanby Street, noting that it was not without recent development and contained some differing housing styles and forms.
I am not persuaded that the Tribunal erred in not specifically considering the ‘apartment typology’ when assessing the development under neighbourhood character policy.
Conclusion
Grounds 2 and 3 have been made out.
Leave to appeal is granted. The appeal is deemed to have been instituted and heard instanter and is allowed.
The Order of the Tribunal made on 30 November 2015 will be set aside and the proceeding will be remitted to the Tribunal differently constituted to be determined according to law.
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