George 21 Pty Ltd v Kilmore and District Residents and Ratepayers Association Inc
[2023] VSC 88
•2 March 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2022 02466
| GEORGE 21 PTY LTD | Applicant |
| v | |
| KILMORE AND DISTRICT RESIDENTS AND RATEPAYERS ASSOCIATION INC | First Respondent |
| and | |
| MITCHELL SHIRE COUNCIL | Second Respondent |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 February 2023 |
DATE OF JUDGMENT: | 2 March 2023 |
CASE MAY BE CITED AS: | George 21 Pty Ltd v Kilmore and District Residents and Ratepayers Association Inc & Anor |
MEDIUM NEUTRAL CITATION: | [2023] VSC 88 |
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APPEALS – Victorian Civil and Administrative Tribunal – Proposed multi-dwelling development in general residential zone and ‘equine precinct’ – Neighbourhood character – Conduct of proceeding – Extent to which ‘adverse amenity impacts’ were or ought to have been in contemplation – ‘Unaccompanied inspection’ – Procedural Fairness – Leave sought to appeal on a question of law – Victorian Civil and Administrative Appeal Tribunal Act 1998 (Vic), ss 98, 102 and 148 – Torrington Investments Pty Ltd v Shire of Bulla (1981) 57 LGRA 181, Griffiths v Shire of Hastings (1979) 59 LGRA 142, Norville Nominees Pty Ltd v Strathbogie Shire Council [2008] VSC 339 and Steen v WorkSafe Victoria [2014] VSCA 299 considered – Leave to appeal granted and appeal allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | A Walker | Best Hooper |
| For the First Respondent | No appearance | |
| For the Second Respondent | No appearance | Maddocks |
HIS HONOUR:
A. Introduction
The applicant seeks to develop multiple units on a parcel of land at 21-27 George Street, Kilmore (‘the Land’).
The Land is within the urban area of Kilmore and is zoned general residential and not covered by any overlay. However, it is 250 metres from the Kilmore racecourse and there is activity around it relating to the equine industry.
In August 2016, the second respondent (‘Council’) adopted a reference document entitled the ‘Kilmore Structure Plan’ (‘Plan’). Among other things, the Plan identified an area around the Kilmore racecourse as an ‘equine precinct’. The Land falls within that precinct. That said, the Plan also contemplates ‘incremental infill development opportunities’.[1]
[1]Court Book (‘CB’) 958-1133.
In this setting, the applicant applied to the Council for a permit to develop the Land.
There were four objections to the application. Some of the objections referred to features of the ‘established equine precinct’.[2]
[2]CB204-212.
The relevant Council officer reported and recommended as follows –
This report recommends issuing a Notice of Decision to Refuse a Planning Permit Amendment due to the proposal being an overdevelopment, not responsive to the character or in accordance with the Kilmore Structure Plan.[3]
[3]CB215.
The Council subsequently resolved to refuse the application.[4] Among other things, the notice of refusal referred to inconsistency with policy relating to ‘neighbourhood character’ and the Plan.[5]
[4]CB301.
[5]CB325.
Pursuant to s 77 of the Planning and Environment Act 1987 (Vic), the applicant applied to the Victorian Civil and Administrative Tribunal (‘Tribunal’) for a review of the decision.[6]
[6]CB327-335.
The Council resisted the application and lodged a submission. Among other things, it submitted that the proposal ‘does not respond to the existing character of the equine precinct’[7] [emphasis in original].
[7]CB637.
The Kilmore and District Residents and Ratepayers Association Inc (‘KDRRA’) also resisted the application and lodged a statement of grounds. The reasons for objection included the following –
This area of George St is still in an Equine Precinct and is used by a number of owners with horses. The extra traffic and parked cars of unit dwellers and their visitors will cause congestion and noise for existing residents. Such an over-crowded development should not be introduced to this Equine Precinct while there are current adjacent or nearby horse properties.[8]
[8]CB558-559.
The town planner retained on behalf of the applicant prepared a submission in which, among other things, it was contended that –
While objections to the application to a large extent revolve around the equine precinct, Council supports the rezoning of the East Street land for residential purposes, and there is nothing apparent in local policy that would appear to support an ongoing equine industry in George Street, but rather policy would appear to support the industry expanding within the racecourse itself, and to the north in the Rural Living Zone. Whilst the area may have traditionally been occupied by a number of horse training related uses, that would appear to be changing, while the General Residential Zone itself specifically supports a diversity of housing types, and housing growth in well serviced locations.
In summary, whether it be the zone itself, State, or local policy, all aspects point to the township being able to accommodate additional residential development in established urban areas such as this. There is nothing in planning policy or the zone that would indicate a more conservative approach towards residential development would be warranted within this part of the township.[9]
[9]CB709.
The applicant also lodged and relied upon –
(a) a report by a traffic engineer, Charmaine Dunstan, in which, among other things, it was concluded that there were ‘no traffic engineering reasons’ why the permit should be refused subject to ‘appropriate conditions’;[10] and
[10]CB1235.
(b) a report by Robert Thomson, landscape architect, in which it was stated that –
Landscaping to the proposed redeveloped site … will lead to an integrated and sustainable landscape effectively balancing residential development, landscape character and environmental values.[11]
[11]CB1261.
The application was heard by a member of the Tribunal on 24 March 2022. It will be necessary to refer to further aspects of those events, however for present purposes it is sufficient to note that –
(a) at the outset, the Tribunal member indicated that ‘an inspection of the site and the surrounding area’ might be necessary;[12]
[12]CB1296.
(b) the applicant and Council were each represented by town planners, who each addressed the Tribunal concerning aspects of the application and their respective reports;
(c) a representative of the KDRRA also appeared and addressed the Tribunal;
(d) Ms Dunstan and Mr Thomson each gave evidence and were cross-examined;
(e) at the conclusion of the hearing, the member indicated that he would conduct an ‘unaccompanied inspection’ and stated that such an occasion was ‘not the opportunity to make any submissions’;[13] and
(f) no party made any relevant submission or other comment concerning the proposed ‘unaccompanied inspection’.
[13]CB1423-1424.
It seems to have long been commonplace that Tribunal members hearing such applications may undertake inspections in the absence of the representatives of the parties and without the matter being further listed prior to final determination.
In that general context, the ‘unaccompanied inspection’ took place on 27 April 2022.
On 2 June 2022, the Tribunal affirmed the decision of the Council and published written reasons for decision.[14]
[14]CB1273-1287.
In that connection, after referring to the submissions and evidence, as well as its ‘inspection of the site’, the Tribunal identified the key issues as follows[15] –
[15]CB1279 [6].
• Is the proposal consistent with the Kilmore Structure Plan and policy?
•Does the proposal respect the existing and preferred neighbourhood character?
• Are amenity impacts acceptable?
• Will the proposal present unreasonable impacts on traffic safety?
In short, the Tribunal found that the proposal ‘represents an unacceptable outcome’ and briefly explained that –
The proposal is at risk from adverse amenity impacts associated with land use conflict between residential development and equine activity. It also has difficulties in satisfying the policy outcomes sought under the planning scheme with respect to its setting within an equine precinct near the Kilmore Racecourse.[16]
[Emphases added]
[16]Ibid [10].
The Tribunal thereafter expanded upon its reasons for affirming the decision of the Council, including in the following passage to which the counsel for the applicant drew particular attention[17] –
[17]CB1284.
[30]The land use compatibility issue in this case, is that between equine horse husbandry and training and residential development.
[31]Currently, a single dwelling amongst equine activity would not be considered an issue. However, the proposal for 14 dwellings including 12 new dwellings, is an intense form of residential development that will be sandwiched between existing equine activity. It was evident during my inspection that the adjoining equine activity contains horses on small areas of land with little opportunity to achieve any effective separation distancing from the site and the proposal. It is commonly known that horses and in particular, thoroughbred horses can be easily spooked. I also understand that the land opposite the site is used for treating sick horses, that may already be stressed. Horses in such conditions, and in such close quarters, may be prone to adverse reaction from unfamiliar activity.
[32]Odours were also evident, which would not be unexpected in situations where horses are kept in confined areas and is not what one would usually encounter in a typical residential area, and which would have an unpleasant effect on air quality. I also understand that equine activity generally includes early morning starts which may create potential noise impacts on residential amenity. Horses residing on these small parcels of land would require feedstock to be transported in adding to traffic that is not solely related or expected in a residential area. Equine activity reflects a visual character that is non-residential affecting visual amenity through clutter and, on these small parcels of land, patchy vegetation coverage.
[Emphases added]
Although that passage appears in the section of the Tribunal’s reasons directed to whether the proposal was consistent with ‘the Kilmore Structure Plan and policy’, in its later consideration of ‘Amenity impacts’, the Tribunal stated that it had earlier addressed ‘residential and equine land use amenity’.[18]
[18]CB1286, [49].
In context, it seems plain enough that, one way or another, the passage to which counsel drew attention bore significantly upon the ultimate determination of the Tribunal to affirm the decision of the Council.
On 29 June 2022, the applicant filed a notice seeking leave to appeal under s 148 of the Victorian Civil and Administrative Appeal Tribunal Act 1998 (Vic) (‘the Act’).
B. The present proceeding
Section 148(1) of the Act does not confer a general right of appeal; appeal is only by leave, and only on a question of law.[19]
[19]Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167, [43]. A failure to afford procedural fairness is an error of law: Luck v Renton [2005] VSCA 210, [17].
The applicant’s notice of appeal identifies three overlapping questions of law, particularly the following –
Did the Tribunal fail to afford procedural fairness in failing to raise at the hearing or otherwise before making its decision each of the matters in paragraphs 31 and 32 of its decision?[20]
[20]CB1289.
The notice of appeal thereafter states the following grounds[21] –
[21]CB1289-1290.
1. The Tribunal erred in the law in not affording the appellant procedural fairness by failing to raise at the hearing or before making its decision the factual basis for and the significance of the consequences, jointly and severally, of each of the following matters contained in the Tribunal’s reasons for decision:
(a) It is commonly known that horses in particular thoroughbred horses can be easily spooked.
(b)The land opposite the site is used for training sick horses, that may already be stressed.
(c) Horses in such condition, and in such close quarters, may be prone to adverse reaction from unfamiliar activity.
(d) Equine activity generally includes early morning starts which may create potential noise impacts on residential amenity.
(e) Horses residing on these small parcels of land would require feedstock to be transported in adding to traffic that is not solely related or expected in a residential area.
(f) Equine activity reflects a visual character that is non-residential affecting visual amenity through clutter and, on these small parcels of land, patchy vegetation coverage.
2. The Tribunal erred in law in not affording the appellant procedural fairness by failing to raise at the hearing or before making its decision the observations that it made during its inspection and the significance of the consequences, jointly and severally, of each of those observations on each of the following matters in its reasons for the decision.
(a) It was evident during my inspection that the adjoining equine activity contains horses on small areas of land with little opportunity to achieve any effective separation distancing from the site and the proposal.
(b) Odours were also evident, which would not be unexpected in situations where horses are kept in confined areas and is not what one would usually encounter in a typical residential area, and which would have an unpleasant effect on air quality.
(c) Equine activity reflects a visual character that is non-residential affecting visual amenity through clutter and, on these small parcels of land, patchy vegetation coverage.
The applicant filed comprehensive written submissions directed to what is there described as being ‘the sole question of law in this proceeding’, namely whether the applicant was denied procedural fairness.[22]
[22]CB1438.
At the hearing, counsel for the applicant submitted that the highlighted portions of the passage extracted at [19] above reflected seven ‘adverse and material findings of fact’ made by the Tribunal without affording the applicant any opportunity to make submissions or call relevant evidence.[23]
[23]Transcript (‘T’) 2. See also, T7-10.
Prior to the hearing, each respondent – including the Council – advised the Court that it would abide the result. Neither appeared at the hearing, nor did they make any submissions.
C. Applicable principles
Many presently relevant principles were surveyed by the Court of Appeal in Steen v WorkSafe Victoria.[24] In particular, a decision maker should not make an adverse finding unless it has warned the person of the risk that it might be made, or the risk ‘necessarily inheres in the issues to be decided’. That said, the situation in which a party faces adverse evidence but chooses not to address it is distinct from that in which a decision maker ‘takes into account some material or submission drawn from a source that is outside the knowledge or contemplation of the parties’.[25]
[24][2014] VSCA 299.
[25]Ibid [77]-[84]. See also, Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492, [22].
Counsel for the applicant submitted that the present case is ‘almost entirely on all fours’ with Norville Nominees Pty Ltd v Strathbogie Shire Council (‘Norville Nominees’).[26]
[26][2008] VSC 339 (‘Norville Nominees’); T2.
In that instance, a Tribunal member undertook an unaccompanied site inspection upon which ‘material findings’ were subsequently based.
Justice Osborn referred to the applicable statutory provisions and confirmed that the Tribunal is ‘entitled to treat its observations on a view as evidence in a proceeding’.[27]
[27]Ibid [13]-[15].
His Honour also confirmed that the obligation of the Tribunal to afford procedural fairness does not necessarily require that a hearing be reconvened after a view is undertaken.[28]
[28]Norville Nominees (n 26) [21].
That said, his Honour stated –
[22]It does, however, require that the parties have a fair opportunity to meet the cases adverse to them, upon which the Tribunal ultimately adjudicates.
…
[26]Thus, when an expert tribunal does no more than utilise its general expertise, that will be in the contemplation of the parties. If, however, it goes beyond this and uses specialist knowledge of particular factors of relevance, these must be disclosed to the parties.
[27]Likewise the Tribunal is not entitled to make a finding of material fact, based on evidence collected by it on its own inquiry, not disclosed to the parties, and which none of the parties have had the opportunity of investigating, testing or answering.
…
[36]In these circumstances, and although the judgment is necessarily one of fact and degree, it seems to me the Tribunal was bound to raise a matter it regarded as determinative with the parties before deciding the case adversely to the appellant.
[Emphases added]
It follows that the question in such a case can depend upon the extent to which the risk that a determinative matter might come to be acted upon by the Tribunal could be said to have been within the contemplation of the parties. In that regard, the events in and relating to the hearing preceding an ‘unaccompanied inspection’ will often be of critical importance.
The position is further illustrated by two cases referred to directly or indirectly in Norville Nominees.
In Griffiths v Shire of Hastings,[29] the tribunal was said to have dismissed the appellant’s application for subdivision based upon the results of an ‘unaccompanied inspection’.
[29](1979) 59 LGRA 142 (‘Griffiths’).
Justice BW Beach made the order nisi absolute, particularly by reference to events that occurred in the hearing prior to the unaccompanied inspection. In connection with the latter, however, his Honour stated –
Where the tribunal carries out such an inspection it is not incumbent upon it in every case in which it does so to notify the parties of the results of that inspection and to give them a further opportunity to call evidence in relation to the matter and/or make further submissions concerning it. In my opinion it would only be incumbent upon the tribunal to do so in the event its inspection revealed some matter of significance not dealt with by the parties during the course of the hearing and upon which the tribunal proposed to base its determination or at least which had a significant influence upon the tribunal in arriving at its determination. In such a situation it would be a denial of natural justice to make a determination based upon or affected by such a matter without first giving the parties the opportunity of being heard in relation to it.[30]
[Emphases added]
[30]Griffiths (n 29) 156-157.
Further, in Torrington Investments Pty Ltd & Ors v Shire of Bulla & Ors (‘Torrington Investments’),[31] the respondent applied for a planning permit in respect of an airfield. Objectors relied upon the potential effect of aircraft noise upon cattle and horses. The members of the tribunal undertook an inspection in which they conducted experiments concerning the presence and potential effect of aircraft noise.
[31](1981) 57 LGRA 181 (‘Torrington Investments’).
In making the order nisi absolute, Brooking J noted that there was nothing in the transcript of the hearing before the tribunal that suggested that it had ‘contemplated conducting experiments by way of observing for itself the noise level or the reaction of livestock to aeroplanes’.[32] In that regard, his Honour referred to the relevant statutory provisions and confirmed that –
If the tribunal is gathering extraneous evidence … it should in general give the parties the opportunity of making submissions and (where appropriate) adducing evidence on the matter.[33]
[32]Ibid 184.
[33]Ibid 185.
That said, his Honour stated –
I … would not wish to be understood as laying down any inflexible rule that whenever the tribunal proposes to treat as established some fact that it has gleaned from an inspection of the appeal site or its environs, it must, before determining the appeal, notify the parties of the proposed finding and give them the opportunity of making submissions or calling evidence with a view to preventing the making of the finding or inducing the tribunal to find some additional fact or persuading it to take a certain view of the significance of the fact gleaned from the inspection. What fairness requires will be affected by the nature of the fact in question and the course of the hearing before the tribunal, in addition, a sense of proportion must be retained. If the condition observed is unchanging and the observation is a simple one and the existence and significance of the condition have been canvassed during the hearing, I see no reason why the tribunal should not form its own impression during the inspection of such things as heights and distances and vistas and act on that impression without reconvening. The tribunal is not required to close its eyes to visible facts or even to stop up its ears or plug its nostrils. Its members are not required to emulate the Three Wise Monkeys and see and hear and smell no evil or good when they venture upon their view.[34]
[Emphasis added]
[34]Torrington Investments (n 31) 185-186.
His Honour thereafter referred to the need to have regard to ‘the ordinary man’s notions of common fairness and commonsense’. In that connection, his Honour stated –
… I suspect that the man in the street would have thought that what the tribunal did in flying over horses and cattle to see whether they were affrighted and in standing on the ground and comparing the noise of an aircraft with that of a tractor was eminently sensible and in no way unfair. I am also oppressed by the feeling that, if representatives of the parties had been present during the inspection and had been given the opportunity at a further hearing of calling evidence and making submissions, the outcome of the appeals would have been no different. But I have in the end decided, after considerable hesitation, and not without regret, that the determinations of the tribunal should not be allowed to stand. The man in the street, who might applaud the enterprise and good sense of the tribunal in seeing and hearing for itself would, alas, not be conscious of the doubts and apparent difficulties which the lawyer is able to readily conjure up in the name of natural justice. It is because of the reservations that I have concerning the substance of these fearful apparitions that I have hesitated before reaching my decision. The man in the street may be content with these experiments, but the importunate lawyer insists on asking: How representative of other aircraft was the one that was used? How was it flown? Who provided it, and had it been modified? How many head of cattle or horses were observed? Were they the ordinary beasts of the field, or the possibly more delicate creatures for whose wellbeing Mr Southwick expressed concern? In how many places and just where did the chairman of the tribunal and his colleague take up their listening positions on the ground? Are they more tolerant of noise than persons generally? (Compare the noise control engineer’s evidence on individual variations.) What were the weather conditions? And so it goes on ...[35]
[Emphases added]
[35]Torrington Investments (n 31), 185-186.
The question of materiality – which so ‘oppressed’ Brooking J in Torrington Investments – was addressed more recently by the High Court in Nathanson v Minister for Home Affairs (‘Nathanson’).[36]
[36](2022) 403 ALR 398.
In that regard, Kiefel CJ, Keane and Gleeson JJ confirmed that the appellant bore an onus of demonstrating only that he or she had been deprived of a ‘realistic possibility of a different outcome’. In that connection, their Honours explained that –
There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence of make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity. … To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage and that, by doing so, the party could achieve a favourable outcome.[37]
[Footnotes removed]
[37]Ibid [33]-[34].
D. Consideration
As I have earlier noted, counsel for the applicant identified seven ‘adverse and material findings of fact’ (highlighted at [19] above).
In that regard, counsel submitted that –
(a) the findings were derived from the unaccompanied inspection;
(b) the findings were directly or indirectly determinative of the issue before the Tribunal; and
(c) the applicant was deprived of the opportunity to call relevant evidence or make submissions.
In that connection, counsel conducted a review of the material before the Tribunal, and relevant parts of the transcript, in the course of which he distinguished between the ‘policy’ question concerning the character of the neighbourhood and what he described as the ‘issue of reverse amenity’.[38] In substance, counsel submitted that the seven ‘findings of material fact’ concerned the latter; in respect of which, it was submitted, the applicant had been ‘blindsided’.[39]
[38]T5.
[39]T32.
I accept that the reasons of the Tribunal distinguish between what is there described as ‘the policy outcomes sought under the planning scheme’ and the risk of ‘adverse amenity impacts associated with the land’.[40] In the latter connection, it is plain that the Tribunal came to accept that there were problems of ‘residential and equine land use amenity’[41] associated with the proposal.
[40]See, in particular, CB1279, [10].
[41]CB1286, [49].
I also accept that the Council’s material before the Tribunal – whilst referring, for example, to inconsistency with the Plan,[42] and describing the applicant’s proposal as being ‘at odds with the preferred character of the area’[43] – was primarily directed to the ‘policy question’ (and other issues). There was no heading under which the issue of ‘reverse amenity’ or ‘residential and equine land use amenity’ was organised and advanced.
[42]CB325.
[43]CB634.
That said, it is not surprising to me that, in the circumstances, there might have been potential for amenity issues of that kind to arise. In particular, there were indications in that direction in some of the underlying material.
For example, the objections to Council included references to[44] –
[44]CB204-205 and CB209.
(a) the effect upon horse trainers and an ‘existing vet and equine specialist’;
(b) the dangers posed by increased traffic; and
(c) ‘dissatisfaction among residents and the equine community who will be unable to park’.
Similarly, the grounds stated by the KDRRA included the following –
This area of George St is still an Equine Precinct and is used by a number of owners with horses. The extra traffic and parked cars of unit dwellers and their visitors will cause congestion and noise for existing residents. Such an over-crowded development should not be introduced to this Equine Precinct while there are current adjacent or nearby horse properties.[45]
[45]CB558-559.
Further, at the hearing before the Tribunal, while the primary focus was on the ‘policy question’ (and other issues), concerns in respect of ‘reverse amenity’ did emerge.
In that regard, the town planner representing the Council summarised its position as follows –
I just again would further emphasise that the context of this area is a real sticking point for council. I completely appreciate the zoning of the area is general residential zone, however calling a spade a spade, seeing what the area looks like from site visits on the ground and also from an aerial perspective, as well as the desired function of the area and that equine precinct, we can clearly see that the proposal is at odds with that.[46]
[46]CB1313-1314.
Shortly thereafter, and following some exploratory questions by the Tribunal member, the Council’s representative referred to –
… the general conflicts that anyone would expect – sorry, the existing residents would expect, through an increase of density and existing equine activities.
Council does have a responsibility and in complete consideration of the zone, council has a responsibility to ensure that we try and minimise those conflicts where possible. If we are considering the future amenity of purchasers – of occupiers, rather, within this proposed development, we would assume that there would be some conflict arising from, for example, people undertaking equine facilities within 5 metres, 10 metres of someone’s bedroom in a brand new unit.
There is a clear conflict there and it is acknowledged that there needs to be an edge somewhere. …[47]
[Emphasis added]
[47]CB1316.
In that connection, with reference to ‘speaking to people that live within [the] area and even visiting the site’, the Council’s representative emphasised the ‘equine function’ and ‘distinct character’ of the area.[48]
[48]CB1317.
When the turn of the representative of the KDRRA came, she referred to the ‘close proximity’ between the proposed units and ‘the horse industry activities’ and submitted, among other things, that –
The extra traffic and parked cars of unit dwellers and their visitors will cause congestion and noise for existing residents. Early and late hours noisy activities from equine properties in the street may well be stressful for prospective residents of the planned units, some of which are within two metres of horse yards.[49]
[49]CB1328.
At that point, the Tribunal member did not explore with the Council’s representative, or that of the KDRRA, any of the identified aspects of ‘reverse amenity’ to which reference had been made in argument.
Nor, for that matter, was any such aspect raised by, or with, the town planner, who appeared on behalf of the applicant.
That said, the focus of the applicant’s representative was different. In particular, he submitted that –
… this particular section of George Street is changing and will change away from one of an equine character. …
Now, whether or not this application is approved, something of some way shape or form will occur on that property in relation to medium density housing at some point in the future. My clients, the same clients have also purchased this parcel of land in the corner and are preparing for another medium density development.[50]
[50]CB1335.
In that connection, the applicant’s representative referred to the ‘so-called equine precinct’[51] and much later advanced submissions to the effect that the ‘growth of the equine precinct will likely be to the north [of the Land]’.[52]
[51]CB1340.
[52]CB1373.
The applicant’s witnesses were subsequently called. Ms Dunstan gave evidence concerning traffic issues and I note that the Tribunal member asked her about ‘potential conflict between the additional traffic that might be generated’ and ‘any sort of equine activity’. In that regard, the Tribunal member referred to the risk of thoroughbred horses being ‘spooked’.[53]
[53]CB1361.
In the course of a very lengthy answer, Ms Dunstan stated, among other things, that[54] –
[54]CB1361-1364.
(a) ‘the development in itself is a very low generator of traffic’;
(b) the area will undergo change; and
(c) ‘how that’s managed is more to do with those responsible for … those horses in the road environment’.
The applicant’s representative sought confirmation of the position in re-examination, as follows –
Ms Dunstan, were you here early on when I gave the introduction to my submissions? --- Yes I was.
All right, so I spoke about what the perhaps potential way the area will develop in the future. Assuming more residential development occurs in this area what do you say will happen to I guess the number of horses travelling up and down the street? --- I think it’s likely to reduce. One, because those sites are sites that will be redeveloped and two, because the … people that undertake those activities might decide to use transport vehicles rather than … walking the horses up and down the street to get to where they need to go.[55]
[55]CB1367.
It will be evident that Ms Dunstan introduced the prospect of more ‘transport vehicles’ using the street, although that issue was not further explored by any party or the Tribunal member.
For his part, Mr Thomson gave evidence concerning the landscaping plan. In particular, he said –
… we … were able to get planting all along the boundaries; including canopy trees and other vegetation, so that with the amenity of residences in a proposed dwelling and amenity of adjoining properties, there’s an improvement in that it’s really going to be looking out onto vegetation … which is gonna do a very effective job of softening any views of built form. And for the amenity of … residences of the proposed dwelling … the planting is intended to improve the usability of spaces so you’ve got areas of decking, which I think were a valuable size, and you’ve got … deciduous canopy trees to the north which are gonna provide some shading in summer and some solar access in winter.[56]
[56]CB1383.
No presently relevant issue was raised or further explored in his evidence.
Thereafter, in address, the applicant’s representative emphasised, among other things –
(a) the changing nature of the street away from equine industries;[57]
(b) the provision of ‘reasonable boundary setbacks’ and capacity for ‘appropriate landscaping’ within the proposed development;[58] and
(c) in respect of ‘car parking and traffic’, his reliance upon the evidence of Ms Dunstan.[59]
[57]CB1399.
[58]CB1403.
[59]CB1407.
The Council’s representative reiterated that the concern was ‘the proposal’s response to the existing neighbourhood character’.[60]
[60]CB1407.
The representative of the KDRRA also took up the issue of the ‘equine precinct’, in response to which the member stated –
… The area has probably been identified as an equine sort of area and I suppose that’s manifested itself in what we see with some of the properties today in George Street, and the fact that it’s very close to the racecourse and the operation of the Kilmore Racing Club, but unfortunately what may have been in place in a previous version of the planning scheme 25 odd years ago probably doesn’t count for very much because my responsibility as a decision-maker is to look at this proposal on its merits against what the current planning scheme says. I’ll just say that as an observation for you.[61]
[61]CB1414.
Later, after a sequence of submissions concerning proposed development conditions, the Tribunal member stated –
… I am going to reserve my decision. I think I probably need to go out and have a look. It has been a very long time since I’ve been to Kilmore and I think it might be fortuitous for me to do an inspection, not just the site but also the surrounding area and around the racecourse area as well. When I will get a chance to do that, however, I don’t know.[62]
[62]CB1423.
There was then a degree of musing concerning when the inspection might occur and the potential that access to the site might be required together with, as I have earlier noted, an indication that the inspection would be ‘unaccompanied’ and was not ‘the opportunity to make any submissions’.[63] The proceeding was then adjourned to a date to be fixed.
[63]CB1423-1424.
On the face of the transcript, the degree to which issues of ‘reverse amenity’ might be said to have emerged as palpable and potentially relevant to the determination of the ultimate issue is debateable. That said, one can plainly see that –
(a) the Council’s representative raised the issue of the distance between the existing ‘equine facilities’ and the proposed new units, as did the representative of the KDRRA;
(b) the representative of the KDRRA also raised issues of early and late activity and noise;
(c) the Tribunal member raised the risk of horses being ‘spooked’; and
(d) Ms Dunstan raised the potential for more ‘transport vehicles’.
On the other hand, the points concerning distance and noise were not raised with either Ms Dunstan or Mr Thomson, and the overall issue of ‘reverse amenity’ might be said to have somewhat receded in prominence the longer the hearing went on.
That said, in circumstances where the Council’s representative had identified the potential for impressions to arise from viewing the ‘distinct character’ of the area, it seems to me to have been quite foreseeable that the aspects of ‘reverse amenity’ that had emerged during the hearing might come to be crystallised and confirmed in the course of the foreshadowed inspection (which in fact occurred).
In those particular circumstances, in my view, the representatives of the parties – particularly the representative of the applicant – should have been alert to that potential and should have raised it with the Tribunal member when the issue of the inspection was discussed. It is unfortunate that that did not occur.
In light of the above, I do not accept that the applicant was wholly ‘blindsided’; certainly not in respect of all of the aspects of ‘negative amenity’ that feature in the passage of reasoning to which attention was directed in argument.
Nonetheless, as Osborn J noted in Norville Nominees, the issue is one of fact and degree, and in the present case I could not conclude that the fact that the applicant’s representative should have had in mind the risk to which I have referred and raised it with the Tribunal means that the applicant should be taken to have actually contemplated the risk of findings in respect of ‘reverse amenity’ of the number, specific kind and combination ultimately made.
In that regard, I could not conclude that specific matters such as –
(a) the dimensions of the adjoining lots;
(b) the presence and potential reactions of ‘sick horses’;
(c) odour; and
(d) issues relating to transport of ‘feedstock’,
could be said to have ‘necessarily inhered’ in the issues presented by the underlying material during the hearing.
Further, those considerations constitute quite specific and interrelated features that, in my view, went beyond any observation in the nature of an unchanging condition or ‘heights and distances and vistas’ of the kind referred to by Brooking J in Torrington Investments. Each seems to me to have been a specific matter of both relevance and significance; certainly when combined.
In addition, it seems to me to be at least conceivable that some of those matters could or should have been further developed or addressed in the evidence – including that of Ms Dunstan and Mr Thomson.
In the circumstances –
(a) the matters to which I have referred bore directly and indirectly upon the ultimate determination of the Tribunal; and
(b) it must be accepted that the applicant was deprived of the opportunity to adduce evidence and make submissions in respect of those matters as ultimately crystallised and combined by the Tribunal.
Notwithstanding the above, in the course of the hearing I was very troubled by the thought that even if the matters to which I have referred had specifically been raised with the parties, the outcome of the proceeding would have been no different.[64]
[64]Cf., Torrington Investments (n 31) 186.
In that regard, I was conscious that despite such indications as there were in the hearing below concerning matters of ‘reverse amenity’, the applicant’s representative eschewed engaging in debate on that ground in favour of advancing a more general proposition to the effect that the character of the entire area was changing. It is not easy to see – forensically – that it would be in the interests of the applicant to engage with such matters individually when it has (and has already advanced) a purportedly blanket answer.
More particularly, if it be the case that, for example, some of the proposed units might ultimately be within only ‘two metres of horse yards’ (which was said by the representative of the KDRRA, and not disputed),[65] it is not easy to see how it could be that possibilities of the kind floated in argument – namely, ‘the wind’ and the number of horses[66] – could be likely to displace the Tribunal’s conclusions concerning things such as odour.
[65]T1328.
[66]T30.
Nonetheless, I am conscious that ‘once a material failure to accord procedural fairness is identified, it will ordinarily be difficult to conclude that it may not have affected the decision’.[67]
[67]Norville Nominees (n 26) [48]. See also, the consideration of ‘fearful apparitions’ by Brooking J in Torrington Investments (n 31) 186.
Further, the standard concerned was described by Kiefel CJ, Keane and Gleeson JJ in Nathanson as being merely the ‘undemanding’ standard of ‘reasonable conjecture’.
In addition, as I have indicated, at least some of the matters that appear to have arisen out of the inspection seem to me to have been capable of being put to at least Ms Dunstan and Mr Thomson.
In the circumstances, mindful of the standard to which I have referred, and with ‘considerable hesitation, and not without regret’ similar to that which weighed upon the mind of Brooking J in Torrington Investments,[68] I am satisfied that there is a realistic possibility that there might have been a different outcome if the applicant had been afforded the opportunity to adduce evidence and make submissions concerning the whole of the specific and interrelated matters that arose out of the inspection.
[68]Torrington Investments (n 31) 186.
It follows that I would grant leave to appeal and that the appeal must be allowed.
E. Disposition
The applicant submitted that in the event that the appeal were allowed the proceeding should be remitted for re-determination by a ‘different division’, meaning a different Tribunal member.[69]
[69]T38.
That issue is capable of different results in different cases – in Torrington Investments, Brooking J remitted the proceeding to the ‘same chairman and member’;[70] by contrast, in Norville Nominees, Osborn J emphasised public confidence and remitted the matter ‘as a whole to be re-determined by a fresh tribunal’.[71]
[70]Torrington Investments (n 31) 188.
[71]Norville Nominees (n 26) [55].
In the present instance it seems to me to be preferable that the proceeding as a whole should be remitted for re-determination by a fresh tribunal.
I will hear from such of the parties as is necessary in respect of the appropriate form of orders and the issue of costs.
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