Hancock v Nillumbik Shire Council
[2022] VSC 670
•15 November 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION COMPENSATION AND PLANNING LIST
S ECI 2022 00296
| GARY RONALD HANCOCK | Applicant |
| v | |
| NILLUMBIK SHIRE COUNCIL | First Respondent |
| and | |
| CYNTHIA WILLIAMS | Second Respondent |
| and | |
| TOM WILLIAMS | Third Respondent |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 20 & 21 October 2022 |
DATE OF JUDGMENT: | 15 November 2022 |
CASE MAY BE CITED AS: | Hancock v Nillumbik Shire Council & Ors |
MEDIUM NEUTRAL CITATION: | [2022] VSC 670 |
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PLANNING AND ENVIRONMENT – Appeal on a question of law from orders made by the Victorian Civil and Administrative Tribunal refusing applications made for declarations in respect of consents given by the first respondent in August 2012, November 2012, November 2014 and December 2020 – Consents given in respect of clauses in an agreement made under s 173 of the Planning & Environment Act 1987 (Vic) – Land subdivided by reference to a permit issued in 2006 – Associated development permit issued in 2005 and s 173 agreement registered in 2008 – Tribunal refused the applicant’s claims for declarations – Whether consents unlawful – Whether s 173 agreement in breach of a permit – Whether aspects of the Act, the permits, the s 173 agreement or the evidence misconstrued by the Tribunal – Whether breach of procedural fairness – ‘Materiality’ – Planning & Environment Act 1987 (Vic), ss 149B, 171, 173, 174 and 180 - TPSC Pty Ltd v Kingston City Council & Ors [2019] VSCA 204, Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167, TPSC Pty Ltd v Kingston City Council [2018] VSC 313, North Burnside Pty Ltd v Melton Shire Council (2006) 18 VR 1, Kinchington Estate Pty Ltd v Wodonga City Council (2019) 243 LGERA 70, Kioa v West (1985) 159 CLR 550 and Nathanson v Minister for Home Affairs (2022) 403 ALR 398 considered - Application for leave to appeal refused in respect of grounds 2, 4, 5 and 6 – Leave to appeal granted in respect of grounds 1, 3 and 7, but appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | P van Eps | Mahons with Yuncken & Yuncken Lawyers |
| For the First Respondent | BC Chessell | Planology |
| For the Second and Third Respondents | No appearance | TP Legal |
HIS HONOUR:
A Introduction
The applicant is an architect and, with his wife, owned certain land known as 32 Piper Crescent, Eltham. Their dwelling was built in 1988, and stands on part of that land.
In September 2004, an application was made to the first respondent (the Council) with a view to subdividing the land into two lots. In effect, that was to create –
(a) Lot 3 – which remains known as 32 Piper Crescent, Eltham – on which the applicant’s dwelling stands; and
(b) an adjacent Lot 4 – which is now known as 34 Piper Crescent, Eltham – on which a ‘second dwelling’ could be developed.
It seems implicit that the owners would later be able to sell off either or both lots.
On 25 February 2005, the Council issued a planning permit pursuant to which, subject to conditions, a second dwelling may be developed on Lot 4 (the Lot 4 Development Permit).[1]
[1]Court Book (CB) 616-618.
The conditions stated in the Lot 4 Development Permit provided, among other things, that –
(a) the ‘development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority’;[2] and
(b) the permit would expire if, relevantly, the development ‘is not commenced within two years of the date of this permit’.[3]
[2]CB616: condition 1.
[3]CB618: condition 17.
Counsel for the Council explained that such a permit had been required in order for two dwellings to be constructed on the one allotment.[4]
[4]T77.
On 25 February 2006, the Council issued a further planning permit pursuant to which, subject to conditions, the land could be subdivided into two lots. That permit was in various respects amended on 15 November 2006, which included the endorsement of certain amended plans (the Subdivision Permit).[5]
[5]CB650-652.
The conditions stated in the Subdivision Permit provided, among other things, that –
2. Prior to the issue of a Statement of Compliance, the permit holder must prepare and enter into an Agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987. The Agreement is to be registered on the title of both proposed lots. The permit holder must pay all costs associated with the Agreement including the Responsible Authority’s legal costs in reviewing the Agreement. The Agreement shall require that:
(a)The development of lot 4 [ie, 34 Piper Crescent, Eltham] must be in accordance with the Plans endorsed under Planning Permit 623/2004/03P [ie, the Development Permit], unless with further written consent of the Responsible Authority. If Planning Permit 623/2004/03P is not acted upon with the specified time, Lot 4 must still be developed in accordance with the Plans issued under Planning Permit 623/2004/03P, unless with further written consent of the Responsible Authority.
(b) …[6]
[Emphases added]
[6]CB650: condition 2.
In TPSC Pty Ltd v Kingston City Council & Ors,[7] the Court of Appeal referred to the relevant provisions of the Planning and Environment Act 1987 (Vic) (the PE Act) as follows –
Part 9 of the PE Act confers on responsible authorities a variety of powers to regulate land use in Victoria, including the power to enter into agreements under Division 2. Section 173(1) empowers a responsible authority to enter into an agreement with an owner of land in the area covered by a planning scheme for which it is the responsible authority. Pursuant to s 174(2), such an agreement may provide for the prohibition, restriction or regulation of the use or development of the land, the conditions subject to which the land may be used or developed for specified purposes and any matter intended to achieve or advance the objectives of planning in Victoria or the relevant planning scheme. Section 180 provides that an agreement must not require or allow anything to be done which would breach a planning scheme or permit.[8]
[7][2019] VSCA 204.
[8][2019] VSCA 204, [27].
In that connection, the Court of Appeal confirmed that a s 173 agreement is a ‘hybrid instrument’ that operates as a planning control over land, as well as being a private agreement.[9]
[9][2019] VSCA 204, [30]. See also, Solid Investments Australia Pty Ltd v Greater Geelong City Council [2004] VCAT 2356, [43]-[55].
In the present instance, it is apparent that –
(a) there had been an earlier s 173 agreement relating to the land, the terms of which were not presently suggested to be material;
(b) the Lot 4 Development Permit later expired;[10] and
(c) the operation of the Subdivision Permit was, however, extended.[11]
[10]CB17, [7].
[11]CB17, [7].
Pursuant to the requirements of the Subdivision Permit, the applicant and his wife later entered into a s 173 agreement with the Council (the s 173 Agreement).[12] That agreement seems to have been registered on title on 12 August 2008.
[12]CB657-662.
The s 173 Agreement included the following clauses –
2. OWNER’S OBLIGATION
The Owner agrees as follows:
2.1 Development of Lot 4
(a)Except with the prior written consent of Council Lot 4 must be developed in accordance with the Lot 4 Development Permit.
(b) If the Lot 4 Development Permit is not acted upon within the specified time, except with the prior written consent of Council, Lot 4 must still be developed in accordance with the conditions of, and the Plans issued pursuant to the Lot 4 Development Permit.
2.2 Driveway
…
2.3 Vegetation Protection
(a)Except with the prior written consent of Council no tree on Lot 3 or Lot 4 with a trunk diameter of more than 15 centimetres or a height of more than 5 metres shall be or allowed to be removed, destroyed, felled, uprooted, lopped, ring barked or otherwise damaged.
[Emphases added]
The ‘Plans’ referred to in clause 2.1(b) included certain ‘endorsed plans’ relating to, among other things, the construction of a dwelling on Lot 4 (that is, the land that came to be known as 34 Piper Crescent, Eltham). The applicant evidently approved of the development envisaged by those plans.[13]
[13]In that connection, the Tribunal noted that the applicant designed the dwelling approved in respect of the land known as 34 Piper Crescent, Eltham ‘under the Lot 4 Development Permit’: CB35, [52].
In that regard, the effect of the s 173 Agreement was to restrict the development on Lot 4 to that identified in the ‘endorsed plans’, ‘except with the prior written consent of Council’. The ‘endorsed plans’ were said by the applicant to be ‘precise’ and to encompass ‘specific information and detailed building and landscaping plans’.[14]
[14]CB1594.
On 18 October 2011, the land known as 34 Piper Crescent, Eltham came to be owned by Cynthia Williams.
Subsequently, and seemingly at the request of Ms Williams, the Council granted certain consents under clauses 2.1 and 2.3 of the s 173 Agreement, particularly –
(a) on 2 August 2012, in respect of the reorientation of the proposed dwelling and vegetation removal;[15]
[15]CB1125-1131.
(b) on 7 November 2012, in respect of a reorientation of a terrace to the dwelling;[16]
(c) on 21 November 2014, in respect of the construction of a swimming pool and associated works;[17] and
(d) on 9 December 2020, in respect of the construction of a roof to the existing terrace area.[18]
[16]CB1140-1147.
[17]CB1160-1167.
[18]CB19, [7]. It was not in dispute that the letter of consent issued by the Council on 9 December 2020 was not in the Court Book.
Each of the consent letters in the Court Book encloses certain ‘endorsed plan(s)’. Those plans are in various respects different to the ‘endorsed plans’ referred to in the Lot 4 Development Permit and as later amended and referred to in the Subdivision Permit.
It is not in dispute that –
(a) no other consents were sought or given in respect of the land known as 34 Piper Crescent, Eltham;
(b) the applicant – who remains an owner of the land known as 32 Piper Crescent, Eltham – was not notified by the Council of any of the applications for consent, nor otherwise afforded a formal opportunity to be heard concerning them; and
(c) the works contemplated in the various ‘endorsed plans’ the subject of the Council’s consents were subsequently undertaken and completed.
It is apparent that the applicant has been aggrieved concerning –
(a) the lack of notification and any formal opportunity to be heard prior to the granting of each of the Council’s consents; and
(b) the granting of each of the Council’s consents, and in particular –
(i) the differences between the various ‘endorsed plans’ and those earlier endorsed in connection with the Lot 4 Development Permit and the Subdivision Permit; and
(ii) the claimed consequences to the applicant of those variances, particularly in respect of what, in argument, was broadly referred to as ‘amenity’.
The applicant did not commence any relevant proceedings in the Victorian Civil and Administrative Tribunal (Tribunal) until about 14 August 2020.[19] The applicant later commenced an allied proceeding dated 22 April 2021.[20] Together, those proceedings sought the making of declarations under s 149B of the PE Act to the effect that each of the consents to which I have referred were ‘ultra vires and invalid’.
[19]CB1284-1288. See also, CB1292-1294. I note that an aspect of that proceeding concerned the land known as 37 Piper Crescent, Eltham, although the Tribunal’s disposition of that aspect is not presently in dispute. I also note that there was an issue before the Tribunal concerning the applicant’s delay in bringing proceedings, which the Tribunal ultimately found it unnecessary to determine (see, CB68).
[20]CB1299-1309.
In that connection, s 149B provides –
149B General application for declaration
(1)A person may apply to the Tribunal for a declaration concerning—
(a)any matter which may be the subject of an application to the Tribunal under this Act; or
(b)anything done by a responsible authority under this Act.
(2)On an application under subsection (1), the Tribunal may make any declaration it thinks appropriate in the circumstances.
(3)The Tribunal’s power under this section is exercisable only by a presidential member of the Tribunal.
It was not in dispute that –
(a) it was open to the applicant to seek such relief under s 149B of the PE Act; and
(b) such applications required that the ‘legal adequacy and validity’ of the Council’s consents be determined by reference to the ‘principles that operate in relation to judicial review’.[21]
[21]CB25-26.
On 3 June 2021, the applicant filed and served amended applications for declarations and an updated statement of grounds.[22] Each of the parties subsequently filed and served written submissions.[23]
[22]CB1465-1469.
[23]CB1578-1691.
In that connection, the applicant advanced seven grounds of review to the effect that –
(1) the Council’s consents were contrary to the PE Act;
(2) the consents breached the Lot 4 Development Permit;
(3) the consents were invalid in that the Council had failed to obtain the applicant’s consent;
(4) the clauses in the s 173 Agreement providing for consent did not permit development that did not give effect to the Lot 4 Development Permit (other than ‘minor or inconsequential changes’);
(5) the Council failed to take into account relevant considerations, namely the various ‘amenity’ impacts;
(6) the failure of the Council to notify the applicant of the applications for consent and provide him with an ‘opportunity to explain to the Council how he would be affected’ amounted to ‘a failure to afford procedural fairness’;[24] and
(7) the consents ‘separately or together’ were so unreasonable that no council acting reasonably could have granted them.
[24]CB1603.
It will be evident that the applicant’s central grievance was that the Council had consented to developments at 34 Piper Crescent, Eltham, that were in various respects different to that envisaged by the plans originally endorsed in connection with the Lot 4 Development Permit and the Subdivision Permit. In so doing, the applicant contended that the Council had deprived him of procedural fairness and misconstrued the s 173 Agreement and the PE Act.
The Tribunal heard the applications over four days in late August 2021. The Council opposed the applications.
Ms Williams and her partner participated in the proceeding and also opposed the applicant’s applications.
The Tribunal rejected the applicant’s applications on 22 December 2021.[25]
[25]CB12-69.
B The Tribunal’s decision
The Tribunal published 54 pages of reasons directed to its disposition of the applications.
There is presently no contention that the Tribunal misstated any matters in connection with the background to the dispute, the nature of the applicant’s applications, or the relevant statutory provisions and authorities.[26]
[26]CB15-29.
The Tribunal thereafter outlined the effect of the evidence of both the applicant and his expert town planner, Damien Iles.[27] No aspect of that reasoning was said to be misstated either.
[27]CB30-37.
The Tribunal then addressed the applicant’s various grounds.[28] In so doing, it summarised the arguments of the various parties. Again, no part of that aspect of the reasoning was presently said to be misstated.
[28]CB37-68. That part of the reasoning also addressed the applicant’s grounds in respect of 37 Piper Crescent, Eltham.
As to ground 1 concerning s 180 of the PE Act –
(a) the Tribunal noted the applicant’s concession that ‘there cannot be any breach of the planning scheme when no planning permission is required to construct a single dwelling on … the 34 … Piper Land’;[29] and
(b) thereafter, the Tribunal concluded that there was no breach of s 180 of the PE Act ‘because there was no planning permit in force at the time the … consents … were made by council’.[30]
[29]CB40, [80].
[30]CB40, [81].
As to grounds 2 and 4 concerning the consent provisions in the s 173 Agreement –
(a) the Tribunal concluded that –
(i) ‘the terms of clause 2.1(b)’ of the s 173 Agreement were ‘clear and unambiguous’;[31]
[31]CB45, [111]. See also, CB47, [123].
(ii) the s 173 Agreement did not ‘constrain nor restrict the council’s power to consent to a different form of development’;[32] and
[32]CB46, [114].
(iii) there was no breach of the Lot 4 Development Permit because the Council had given its consent to ‘a different form of development’;[33]
[33]CB49, [133]-[137].
(b) the Tribunal stated that there was nothing in the language of the s 173 Agreement that –
requires a planning permit, or the involvement of the applicant, even if, or when changes, are being contemplated. If that was the intention of the applicant when the agreement was executed, that intention could have readily been included in the obligations of either, or both of the parties to the agreement.[34]
(c) the Tribunal rejected any contention that the consents, individually or collectively, were ‘transformative’ of the permission granted in respect of the Lot 4 Development Permit.[35]
[34]CB46, [120].
[35]CB44, [106]. See also, CB47-48, [125]-[128].
As to ground 3 concerning failure to obtain the applicant’s consent as ‘owner’ –
(a) the Tribunal concluded that the definition of ‘owner’ in the s 173 Agreement contemplated that there may be different owners post sub-division and that the s 173 Agreement –
could have, but did not include a requirement that all owners must consent to any development other than as approved under the Lot 4 Development Permit.[36]
(b) it followed that the owners of 32 Piper Crescent, Eltham, were not a party to the obligation posed by clause 2.1 of the 173 Agreement upon the owner of 34 Piper Crescent, Eltham.[37]
[36]CB66, [220].
[37]CB66-67, [221].
As to ground 5 concerning relevant considerations, the Tribunal –
(a) considered that a consent under a s 173 agreement –
is not a decision under the planning scheme and further, that the considerations do not expressly include the matters in section 60 of the PE Act, or the decision guidelines under the relevant zone and overlay.[38]
[38]CB51, [146].
(b) considered that in deciding whether to consent to a change under a s 173 agreement, a council would need to consider the terms, purpose, intent and context of the agreement and the consistency between the new plans and the terms, purpose and intent of the agreement;[39]
[39]CB52, [148].
(c) stated that the purpose and intent of the s 173 Agreement was –
to ensure that council retains control over development of the 34 Piper Land given that after subdivision, no such control would exist, because no planning permit would be required for the development of the land for a single dwelling.[40]
[40]CB53, [157].
(d) after a lengthy discussion of the reports obtained by the Council in connection with each of the applications for consent, stated –
In every council report, the purposes of the 34 Piper Agreement are acknowledged and in all reports the amenity impacts to the 32 Piper Land are either considered directly or by inference. It follows that I disagree with Mr Iles’ evidence and his conclusion with respect to the various council reports. Further, I disagree with Mr Iles that the decrease in setback in the common boundary (for a short distance) following which the setback increased coupled with the removal of vegetation was a fundamental oversight by council. Rather, the council considered these aspects specifically, and the amenity consequences of these changes.[41]
(e) thereafter found that the Council had considered the various consents ‘having regard to the terms, purpose and intent’ of the s 173 Agreement and ‘considered the amenity impacts to the 32 Piper Land’.[42]
[41]CB59, [184].
[42]CB61, [193].
As to ground 6 concerning procedural fairness, the Tribunal –
(a) concluded that a consent under a s 173 agreement is not a decision under the planning scheme and that the considerations referred to in s 60 of the PE Act did not apply because no planning permit was required;[43] and
(b) agreed that a secondary consent application does not give rise to a right to notice.[44]
[43]CB62, [198].
[44]CB62, [200].
Finally, as to ground 7 concerning ‘unreasonableness’, the Tribunal reiterated several of its earlier findings.[45]
[45]CB64, [208].
In light of the above, the Tribunal refused to made the declarations sought by the applicant.
C The present proceeding
The applicant commenced the present proceeding by notice of appeal dated 4 February 2022.[46]
[46]CB7-11.
The notice of appeal identifies the proceeding as brought pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Such an appeal is on a question of law. It is not a general right of appeal. The questions of law are the subject matter of such an appeal.[47] An appeal will not lie in respect of complaints concerning the weight afforded to evidence.[48]
[47]Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167, [41]-[46].
[48]Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176, [21]-[25]. See also, Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48.
The present appeal, of course, is on a question of law from a proceeding that was itself limited in ambit as it was in the nature of a judicial review.
In this context, the notice of appeal states the following purported questions of law and grounds of appeal –
Questions of Law
1.Whether ‘miscellaneous consents’ are contrary to s. 180 of the Planning and Environment Act 1987 (PE Act) when the permit being relied upon to establish the fact of a breach has expired?
2. Whether the Tribunal made an error of law by misconstruing the operation of s. 180 of the PE Act when it determined there was no breach because the Lot 4 Development Permit had expired?
3. Whether the Orders are invalid because s. 117 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) required the Tribunal to give reasons, but the Reasons failed to —
(a)include the Tribunal’s findings on material questions of fact; and/or
(b) disclose and intelligible path of reasoning?
Particulars
(i)The Tribunal’s finding that the purpose and intent of the 34 Piper Agreement is to ensure that council retains control over development of the 34 Piper Land.
(ii) The Tribunal’s finding that the Appellant was afforded procedural fairness.
(iii) Whether the Decisions were unreasonable and invalid because procedural fairness was not followed?
4. What was the purpose of the 34 Piper Agreement?
5. Whether the Tribunal made an error of law by failing to properly construe the extent of its exemption powers for development of 34 Piper under term 2.1 of the 34 Piper Agreement?
6. Whether the Tribunal misapprehended the evidence before it regarding —
(a) the purpose of the 34 Piper Agreement?
(b)the scope of the Council's consent power under the 34 Piper Agreement?
7. Whether the Tribunal properly construed the terms of the 34 Piper Agreement as to whether the Appellant was obliged to agree to development other than as approved under the Lot 4 Development Permit as an ‘owner’ under the agreement?
8. Whether the Tribunal made an error of law by misconstruing the terms of the 34 Piper Agreement when it determined that the Appellant's consent, as an ‘owner’ under the agreement, was not necessary to develop the 34 Piper Land other than approved under the Lot 4 Development Permit?
9. Whether the Tribunal made an error of law by failing to take relevant considerations into account when determining that the decisions of the Council to give consent to development of the 34 Piper Land (Decisions) were valid?
Particulars
(i)The Tribunal should have assessed the Decisions in terms of their consistency with the Lot 4 Development Permit.
(ii) The Tribunal should have assessed the Decisions in terms of their adherence to the administrative law principles of procedural fairness.
10. Whether the Tribunal made an error of law by rejecting expert evidence of Damian Iles and misconstruing his evidence as a ‘merits review’ of the development on the 34 Piper Land, rather than evidence directed to the degree of consistency between the development allowed by the Decisions and the Lot 4 Development Permit?
11. Whether the Tribunal failed to properly exercise its jurisdiction by refusing relief without addressing whether the Council acted fairly in making the Decisions despite giving no notice or right of review to the Appellant?
12. Whether the Tribunal made an error of law by failing to properly apprehend and apply administrative law principles of procedural fairness in respect of the Decisions?
13. Did the Council’s making of the Decisions offend administrative law principles?
14. Does the ‘miscellaneous consent’ process offend administrative law principles?
Grounds of Appeal
1. The Tribunal misconstrued the operation of s. 180 of the PE Act.
2. The Tribunal erred in law and breached s. 117 of the VCAT Act by failing to give adequate or sufficient reasons for its decisions that —
(a) included findings on material questions of fact; and
(b)displayed an examination and an understanding of the evidence and the weight of evidence presented at the hearing so as to disclose an intelligible path of reasoning.
3. The Tribunal erred by failing to properly construe the 34 Piper Agreement.
4. The Tribunal erred by misapprehending and failing to properly assess the totality of the evidence.
5. The Tribunal erred by failing to take relevant considerations into account.
6. The Tribunal erred by misconstruing and rejecting expert evidence.
7. The Tribunal erred by failing to properly apprehend and apply administrative law principles of procedural fairness in respect of the Decisions.
Ms Williams and her partner are parties to the proceeding, but they did not participate in the hearing. The active parties were the applicant and the Council.
The applicant and the Council each filed and served extensive written submissions.[49] Those submissions, and the oral arguments of counsel at the hearing, were essentially directed to the ‘grounds of appeal’ stated in the notice of appeal, rather than specifically to any of the purported questions of law.
[49]CB1219-1280.
In any event, counsel for the applicant identified the question of the proper construction of the s 173 Agreement as central to most of the applicant’s grounds.[50]
[50]T38.
For his part, counsel for the Council grouped the applicant’s grounds in the following manner –
(a) grounds 1, 3 and 5 concerning the s 173 Agreement;
(b) grounds 4 and 6 concerning the manner in which the Tribunal had assessed the evidence; and
(c) grounds 2 and 7 concerning procedural fairness (and reasons).[51]
[51]T63-64.
Counsel for the applicant did not take issue with those groupings, and it is convenient here to adopt them. In so doing, I have endeavoured to respond to each of the significant arguments of the applicant.[52]
[52]In particular, I am conscious that ground 2 (reasons) is advanced in two aspects, and the first of those aspects is discrete and relevant to the first grouping of grounds (grounds 1, 3 and 5). That aspect will be dealt with in connection with that grouping.
As to relief, the notice of appeal seeks that the appeal be allowed, certain orders made below be set aside and that declarations be made to the effect that the consents given by the Council were ‘ultra vires and invalid’.
The notice of appeal also seeks that –
7. Within 30 days of these orders, the parties confer and agree as to what remedial measures are to be taken in respect of the development upon the 34 Piper Land to address adverse amenity effects on the land at 32 Piper Crescent, Eltham. Failing agreement being reached by the parties within this time, the proceeding be remitted back to the Victorian Civil and Administrative Tribunal for determination of what remedial measures will be taken, to be heard before a different member.[53]
[53]CB10.
In that connection, counsel for the applicant explained as follows –
We’re not looking to a result which is the demolition of the house. What really is the case here, which I’ve endeavoured to bear out in the relief which is sought in this court. Apart from a declaration as to the validity of those consents, is really to first of all, send the parties away to see if some consensus can be reached, which has an ongoing or enduring protection of the amenity of 32 Piper. So what can be done? This is also the subject of part of Mr Iles’ expert evidence which he gave evidence in his report, failing which, if the parties couldn’t come to consensus as to what can be done by way of some sort of remedial action, send it back to the tribunal to basically present the case and have a determination made back at the tribunal.
…
for example, with the pool part of the amenity it impacts is the noise impact from the filtration system from the pool so that has been constructed not in–apparently (indistinct) with the plans, with the approved plans. But that creates a noise impact on my client’s property so what can be done as far as, for example, relocating that and installing some sort of noise-reduction measures that would silence or at the very least considerably muffle what I understand is from the applicant’s affidavit – sorry, statement – is a constant pinging sound which is occasioned by the filtration system.
Now, could it be the case that large, mature trees could be ordered to be put along the boundary? This may be subject – I’m really just making some suggestions here, Your Honour, obviously prejudice to and tying to my client's position but really, it comes down to what are some practical measures, short of demolition, that could be done to effectively protect or soften the interface between these two properties which I think –that’s the point or part of the point that was sought to be made by my introduction and showing Your Honour those photos.[54]
[54]T31-33.
The basis upon which such relief might be able to be sought or obtained in a proceeding in the Tribunal in the nature of judicial review was not wholly clear.[55] In any event, it has ultimately been unnecessary to further consider and determine the issue.
D Grounds 1, 3 and 5: construction of the s 173 Agreement and associated arguments[56]
[55]Indeed, in the course of address in argument before the Tribunal any such suggestion appears ultimately to have been abandoned: see, CB434-435.
[56]As I have noted, this section is also intended to cover a discrete part of the applicant’s argument in connection with ground 2.
As I have noted, the applicant’s central argument concerned the proper construction of the s 173 Agreement, particularly clauses 2.1(b) and 2.3(a) which are extracted above.
It was not in dispute that the proper approach to the construction of a s 173 agreement was stated by Quigley J in TPSC Pty Ltd v Kingston City Council.[57] In particular, such an agreement should be construed objectively by reference to its text, context and purpose, bearing in mind ‘the enduring planning considerations’ embedded within it.[58]
[57][2018] VSC 313, [51]-[55].
[58]Ibid.
In that context, counsel for the applicant took issue with the Tribunal’s description of the ‘purpose’ of the s 173 Agreement[59] and directed attention to its recitals, particularly the following –
[59]CB53, [157].
A.The Owner is registered or entitled to be registered as the proprietor of the land at 32 Piper Crescent, Eltham being the whole of the land more particularly described in Certificate of Title Volume 10252 Folio 507 (“the subject site”).
B.The Council is the Responsible Authority under the Planning and Environment Act 1987 (“the Act”) for the Nillumbik Planning Scheme (“the Planning Scheme”).
C. Council issued Planning Permit No 715/5004/14P [ie, the Subdivision Permit] on 25 February 2006 [sic: 2005] (“the Permit”). The Permit was amended on 15 November 2006. The Permit provides for the development of the subject site in accordance with the Plans endorsed by Council.
D.The Owner has requested the Council to certify Plan of Subdivision No PS518758A (“the Plan of Subdivision”). The Owner has also requested Council issue a Statement of Compliance.
E.The Owner has agreed with the Council to enter into this Agreement concerning the development of the subject site in accordance with the Permit and the Plans endorsed by Council.
F.The Owner has agreed with Council to incorporate in this Agreement provisions concerning vegetation protection contained in Planning Permit E92/72 issued by Council on 13 May 1992 and by doing so, the parties agree to replace the Section 173 Agreement registered on the Certificate of Title to the subject site in dealing number S688471S once this Agreement has been registered on the Certificate of Title to the subject site.
…
H.The parties agree that this Agreement will be treated as an Agreement pursuant to Section 173 of the Planning and Environment Act 1987 (“the Act”).[60]
[60]CB658.
Counsel emphasised recitals C and E and also referred to authority concerning the use of recitals in connection with the construction of operative contractual provisions.[61] Counsel submitted that –
it is clear that the applicant and the first respondent council, entered into the 173 agreement for the purpose set out in the recitals, namely, the development of the subject site … in accordance with the permit and the plans endorsed by the council. The council and the applicant both knew the site was to be developed and the council made it clear that it wanted a site-specific development proposal that would contribute positively, to enable character.[62]
[61]Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603, [379]-[390].
[62]T30. See also, T27.
Counsel thereafter referred to a planning report that preceded the issue of the Lot 4 Development Permit[63] and ultimately submitted as follows –
[63]Cf., CB1805-1820.
My client or the applicant obviously had the view that this was to develop the adjacent land in accordance with that Lot 4 development permit. In fact, I think it’s somewhat relevant that he designed that house. The applicant is an architect, and he designed that house … very deliberately to satisfy the council, as well as no doubt protect the amenity on his own property.
So that was the council’s understanding which, in my submission, was reflected in their comments in support of the planning permit, the Lot 4 development permit. So there is nothing in that report [ie, the planning report] … that suggests that the council went into that agreement thinking that it would have some sort of unfettered or unrestricted power to consent to a different form of development on that land.
So … in my submission the only harmonious, congruent operation of clause 2.1 is, really, as a dispensing power, allowing for effectively minor changes to the mandatory requirement, that the land at 34 Piper be developed with the Lot 4 development permit.[64]
[64]T34-35.
In that connection, and particularly in reply, counsel for the applicant submitted that –
The [consent] power doesn’t allow the council to substitute new requirements by endorsing a different set of plans for the purpose of the agreement. …
Now, to do that, it’s my submission … that [that] would require either the amendment of the agreement under s 178 [of the PE Act] … , or to end the agreement under s 178A of the Act.[65]
[65]T148-149. See also, T157-161 and T164-167.
In response, counsel for the Council emphasised that[66] –
[66]See generally, T63-111.
(a) the PE Act permits such agreements to be made;
(b) the scheme of the PE Act contemplates that such agreements may include terms that allow the Council to give consent for development other than as is specified in the agreement;
(c) such terms – including as to consent – have been referred to in other authorities;
(d) the function of such a consent is to remove a restriction created by the hybrid instrument that is the s 173 Agreement, rather than directly to specify and give permission in accordance with any particular statutory provision;
(e) in context, the Subdivision Permit directly contemplated that the s 173 Agreement would, in its terms, permit such consents to be given;
(f) accordingly, the form of the operative provisions of the s 173 Agreement – particularly clauses 2.1(b) and 2.3(b) – is both explicable and unexceptional;
(g) those terms are not displaced in any way by the recitals to the s 173 Agreement.
In a sense, the argument of the applicant is a broadly familiar one: he appeals to the recitals to the s 173 Agreement together with parts of the context and assertions about ‘understanding’ in order to advance an overall contention that the ‘purpose’ of the s 173 Agreement, which he identifies, should control the construction of the operative clauses, particularly clauses 2.1(b) and 2.3(b).
That said, various aspects of the context explain the form of the s 173 Agreement, particularly the text of its relevant operative clauses.
In that regard, s 173(1) of the PE Act relevantly provided that such an agreement may be entered into between a responsible authority and an owner of land in the area covered by a planning scheme for which the authority is responsible.[67]
[67]In this connection, I note that the parties agreed that the presently applicable version of the PE Act was version 85 – hence the past tense. Some of the relevant provisions of the PE Act have since been amended.
Section 174(2) addressed the form and contents of such an agreement and contemplated that it may provide for restrictions on the use or development of the land and the conditions on which it might be used or developed.
Other provisions concerned the amendment or termination of such agreements.[68]
[68]See ss 177-178 of the PE Act. As noted above, the provisions of the PE Act have since been amended, including to provide for the giving of notice and the making of objections: see, PE Act, version 153, ss 178-178I.
More generally, s 180, to which I will later come in connection with a related argument of the applicant, provided as follows –
An agreement must not require or allow anything to be done which would breach a planning scheme or a permit.
In addition, as counsel for the Council noted, s 184 permitted an owner of land to apply to the Tribunal ‘for an amendment to a proposed agreement’.
In the statutory context to which I have referred, s 149 concerned applications for review by ‘specified persons’, defined to include ‘the owner, user or developer of the land directly affected by the matter’, in respect of decisions of ‘the specified body’, relevantly defined to include ‘the responsible authority’ or ‘a municipal council’.
In particular, s 149(1) relevantly provided as follows –
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; or
(b) a decision of a specified body in relation to a matter if an agreement under section 173 provides that the matter must be done to the satisfaction, or must not be done without the consent, of the specified body and makes no provision for settling disputes in relation to the matter; or
(c) …
[Emphases added]
It follows that at the time at which the s 173 Agreement was made, the applicable statutory scheme stated or contemplated that –
(a) a s 173 agreement may provide for restrictions on the use or development of land and the conditions on which it might be used or developed;
(b) a s 173 agreement may also provide that a matter be done to the satisfaction, or not without the consent, of a specified body (defined to include a responsible authority); and
(c) such an agreement must not require or allow anything to be done that would breach a planning scheme or permit.
In that sense, the statutory scheme specifically contemplated that a s 173 agreement may include conditions directed to the use or development of the subject land and that matters may accordingly be done, or not done, upon the satisfaction or with the further consent, as the case may be, of a responsible authority such as the Council.
In that statutory context, as I have earlier noted –
(a) the Lot 4 Development Permit – upon which the applicant presently placed considerable reliance – specifically contemplated that ‘the development as shown on the endorsed plans’ may be altered with the written consent of the Council;[69]
[69]CB616.
(b) more particularly, the Subdivision Permit also contemplated that the subdivision shown on the endorsed plans could not be altered without the written consent of the Council and required the making of a s 173 agreement for the development in accordance with the endorsed plans ‘unless with further written consent’ of the Council;[70]
[70]CB650.
(c) those documents were issued in February 2005 and February 2006 respectively – the former later expired and the latter was later extended;[71]
[71]CB17.
(d) in that context, when the s 173 Agreement was later made and, indeed, at the time at which each of the consents were later given, there could not be any breach of the planning scheme as no planning permission was required to construct a single dwelling on the land known as 34 Piper Crescent, Eltham;[72]
(e) the terms of the s 173 Agreement – registered in August 2008 – reflected the terms of the Subdivision Permit from which it had emanated, particularly clause 2.1(b) which permitted development in accordance with the earlier endorsed plans ‘except with the prior written consent of Council’;[73] and
(f) the land was purchased by Ms Williams in 2011 and the four consents were variously sought and given in and after 2012.
[72]Cf., CB40, [80].
[73]CB659.
In the circumstances, I do not accept that the Tribunal erred in describing the purpose of the s 173 Agreement as having been to ensure that the Council retained control over development at 34 Piper Crescent, Eltham.[74] Without such an agreement, as the Tribunal explained, no such control would exist because no planning permit would be required to construct a single dwelling on the land.[75]
[74]In that connection, I should note that in the course of his evidence before the Tribunal, Mr Iles said that the s 173 Agreement had allowed the Council to maintain ‘an element of control in the event that – that plans change and they’re able to then turn their mind to those changes via written consent’: CB250.
[75]CB53, [157].
Nonetheless, the submission of the applicant was that the ‘purpose’ of the s 173 Agreement was to require that development occur by reference only to the plans originally endorsed in February 2005 (or, perhaps, as later endorsed in November 2006) or, at most, with only ‘minor’ or ‘inconsequential’ changes.[76]
[76]Cf., T35 & T160. I should note that in written submissions, but not in address, the applicant advanced a variation on the same argument to the effect that the terms of the s 173 Agreement permitted ‘alteration’ of the endorsed plans, but not ‘new plans altogether’: CB1230.
I note that such a submission slides from an assertion concerning ‘purpose’ to a conclusion about the effect of the s 173 Agreement whilst passing rather lightly over the text of the operative terms.
In any event, I do not accept that the features emphasised by counsel for the applicant in argument provide any real support for such an assertion.
In that regard, the planning report that preceded the issuing of the Lot 4 Development Permit did not state that development of the land may occur only by reference to the then proposed plans or with only ‘minor’ or ‘inconsequential’ changes.[77] In particular, and in respect of the proposed subdivision permit, the report stated –
a condition of [the] permit will require that a Section 173 Agreement be registered on the newly created lot (Lot 4) requiring that the development of that lot be in accordance with the plans approved under the development permit (unless with further written consent of the Council).[78]
[Emphasis added]
[77]CB1805-1820.
[78]CB1811.
The report recommended the issue of the Subdivision Permit on identified conditions including that a s 173 agreement be prepared and entered into requiring that, among other things, the s 173 Agreement be entered into in accordance with the plans to be issued under the Lot 4 Development Permit ‘unless with the further written consent of the Responsible Authority’.[79]
[79]CB1816-1817.
In short, the report that preceded the issuing the Lot 4 Development Permit (and, necessarily, the Subdivision Permit) recommended the relevant terms of the very conditions upon which the Subdivision Permit later came to be issued.
I also do not accept that the recitals to the s 173 Agreement (relevantly extracted above) support any such characterisation of the ‘purpose’ of that agreement. In that regard –
(a) recitals C and E each refer to the Subdivision Permit and ‘the Plans’ referred to in it;[80] and
(b) the conditions of the Subdivision Permit state plainly that development must be ‘in accordance with the Plans’ endorsed under the Lot 4 Development Permit ‘unless with further written consent of the Responsible Authority’.[81]
[80]CB658: albeit that the reference to ‘Planning Permit No 715/5004/14P on 25 February 2006’ contains an obvious typographical error and should be understood to read ‘Planning Permit No 715/2004/14P on 25 February 2006”. Cf., CB650-652.
[81]CB650.
In the circumstances, the shorthand or contracted nature of the language appearing in the recitals to the later s 173 Agreement could not fairly be interpreted as having been intended to modify or displace the implementation of the terms of the Subdivision Permit to which it plainly refers.
In that context, it is unsurprising that the relevant operative terms of the s 173 Agreement reflect the conditions of the Subdivision Permit that required them. In particular, clause 2.1(b) requires development in accordance with ‘the Plans’ ‘except with the prior written consent of Council’.
In the circumstances, it is quite apparent that the objective of the conditions of the Subdivision Permit, as ultimately reflected in the relevant operative terms of the s 173 Agreement, was to require that development be undertaken in accordance with the ‘endorsed plans’ unless consent to the contrary was given by Council.
In that regard, the language employed in both the Subdivision Permit and the operative terms of the later s 173 Agreement is wide. Simply stated, consent may be given by the responsible authority – particularly, to dispense with the requirement that the land be developed by reference to the plans originally endorsed in February 2005, or, indeed, as amended in November 2006 in connection with the Subdivision Permit.
In my view, there is nothing in the text nor context of the s 173 Agreement that supports the submission that it should properly be read as requiring development by reference only to the plans originally endorsed (whether in February 2005 or as amended in November 2006) or, at most, with only ‘minor’ or ‘inconsequential’ changes. Indeed, the text and context to which I have referred support neither of those constructions.
Moreover, development of the land only by reference to the originally endorsed plans or with only ‘minor’ or ‘inconsequential’ changes are not the same thing. The submission of the applicant, however, would seek to embrace both. That the operative text and context neither state nor clearly contemplate either, in my view, tends to underline the reason why the overall submission cannot be accepted.
Finally, it is not difficult to understand why the operative terms would come to be expressed without specific limitation –
(a) the original plans were endorsed in February 2005 (and, as I have noted, amended in November 2006 in connection with amendments made to the Subdivision Permit);
(b) the Lot 4 Development Permit that referred to the originally ‘endorsed plans’ expired in February 2007;
(c) by August 2008, when the s 173 Agreement was registered on the title, any development at 34 Piper Crescent, Eltham, was still in the future – indeed, the land was not purchased by Ms Williams until 2011;
(d) in the circumstances, it is perfectly understandable why – for countless reasons of potential future feasibility or desirability, including the potential for any planning requirements or objectives to change over time – it would be undesirable to require that future development only be undertaken by reference to plans endorsed in February 2005 and/or November 2006, or with only ‘minor’ or ‘inconsequential’ changes; and
(e) further, there is no suggestion in the material to which I was relevantly directed that development in accordance with the originally endorsed plans was the only way in which the land at 34 Piper Crescent, Eltham, could be developed consistently with the underlying planning scheme or any other relevant planning requirements.
Consistently with the above, albeit that it derives from the assessment of the Council planning officer undertaken well after the s 173 Agreement was registered and in the context of the first of the applications made for consent (in 2012, in respect of the reorientation of the proposed dwelling and vegetation removal), I note that the officer referred to advice obtained from an arborist to the following effect –
Trees no.6, 7, 8, 9 and 10 originally to be retained as part of the approved development would not be able to be retained if the approved development was to be undertaken today. Removal recommended.[82]
[82]CB1118.
The report spoke more generally to the approach of the Council in respect of such a proposal, namely that it required ‘assessment against the purpose of the Section 173 Agreement and responsiveness to the Neighbourhood Character’. The report also stated that –
As there are no statutory provisions for formal advertising/notification of any changes to the development of the land to adjoining landowners, Planning Officers must ensure that a new proposal must not result in an increase in material detriment.
…
Council Officers [have] consistently applied the position that a new proposal should generally be in accordance with the approved and consider factors such as siting, boundary setbacks, building bulk, height and design.[83]
[83]CB1119.
In that connection, the report thereafter stated as follows –
A pre-application meeting was held with the applicant in September 2011 and they were advised the design was unlikely to receive the approval of Council Officers. If they were to proceed with the proposal for a completely different dwelling, they would need to demonstrate that the new designs could achieve an acceptable planning outcome.
However, in saying so it is unreasonable to expect a new proposal to be more or less a replica of the approved especially when extenuating circumstances dictate that a revised proposal may result in an appropriate planning outcome. The planning system must provide flexibility to consider [a] new design, as often there is more than one design option for a site.
The applicant has justified the need for a new design due to the time that has lapsed since the permit was originally granted. Since the permit was granted six years ago, the applicant has indicated that the landscape significant trees to be retained, namely tree nos. 6, 7, 8, 9 and 10 (Spotted Gums) have changed in both size and condition, and therefore would not be able to be retained should the approved design be constructed as of today.
Council’s arborist has reviewed the approved and current proposed developments and confirmed that these trees would not be able to be retained if the approved development was to be constructed today. This is due to the difference in the arboricultural standards used to assess the distance required for the safe retention of trees in 2005-6 and under the current Australian Standards 4970-2009. The older standards using Critical Root Zones (CRZ) provided less generous room for root protection and future growth.
Discussions were had with the applicant to ‘tweak’ the approved design slightly to accommodate the trees. However, it is clear that the original design left little room for future tree growth or variation to the dwelling without significant redesign. As stated previous[ly], it is unreasonable to hold a land owner to the design if an [alternative] can be provided that can still achieve an acceptable planning outcome.
In this instance, the proposal for a redesign is considered to be reasonable and will not increase material detriment as it is generally in accordance with [the] development permit. Both the approved and the proposed development are for a single two-storey four bedroom family dwelling sited towards the centre of the site, with access off the shared driveway and the removal of native vegetation. The proposal is essentially the same in nature, albeit for changes in the design and extent of vegetation removal. …[84]
[Emphases added]
[84]CB1120. See also the planning officer’s ‘conclusion’ at CB1123.
Such an approach, which seems to me equally to be reflected in the planning reports subsequently obtained in connection with the applications for consent made later in 2012, 2014 and 2020,[85] was in my view perfectly in keeping with the purpose of the s 173 Agreement evident in its text and context.
[85]CB1135-1139, 1154-1158 and 1197-1202.
In any event, in light of the circumstances to which I have earlier referred, I reject the proposition that ‘the purpose’ or proper construction of the s 173 Agreement required that development only occur by reference to the originally endorsed plans or, at most, with only ‘minor’ or ‘inconsequential’ changes.
It follows that I reject the various ways in which the applicant now contends that the Tribunal erred in construing the s 173 Agreement. Relevantly, the Tribunal concluded that the terms of the s 173 Agreement – particularly clause 2.1(b) – are ‘clear and unambiguous’ and permitted the Council to give ‘prior written consent for development … other than what was approved under the Lot 4 Development Permit and endorsed plans’.[86] It is sufficient to say that I agree. Accordingly, the Tribunal’s construction of the relevant terms of the s 173 Agreement was not erroneous.[87]
[86]CB45, [111].
[87]This conclusion should be read as dealing with the applicant’s grounds 3 and 5 as well as the relevant part of ground 2.
In this connection, I note that the applicant’s assertions concerning the ‘purpose’ of the s 173 Agreement were said to be central to appeal ground 5 to the effect that the Tribunal failed ‘to take relevant considerations into account’. In argument, counsel for the applicant explained that submission as follows –
because the Tribunal, in the applicant’s submission, misinterpreted the purpose of the agreement, it consequently failed to have due regard to the evidence. Particularly that from the applicant in his written statement and evidence at … the hearing, and Mr Iles, both of which demonstrated the inconsistency between the two developments and the consequential impacts this had on the amenity of the applicant’s land.[88]
[88]T38-39.
To be completely clear concerning the above submission –
(a) I do not accept that the Tribunal misinterpreted the purpose of the s 173 Agreement and nor do I accept that the Tribunal misconstrued the operative text of the s 173 Agreement;
(b) in that regard, the terms of the s 173 Agreement specifically comprehended the consents which were later sought and the Council did not err in granting them;
(c) more generally, it was common ground that the Tribunal proceeding was in the nature of a judicial review – in which the issue was whether the decisions of the Council were affected by some form of reviewable error;
(d) in a proceeding of that kind, while I would not be prepared to say that evidence of the kind led from the applicant and Mr Iles was strictly irrelevant (I should be read as saying nothing about the relevance of such evidence), the centrally relevant evidence would ordinarily be that concerning the material before the Council and the events relevant to the decisions sought to be impugned;
(e) in any event, the Tribunal gave detailed consideration to the evidence of the applicant and Mr Iles as well as the s 173 Agreement and the other material before the Council when the decisions were made;[89]
[89]In particular, the various planning officer reports to which I have earlier referred: CB1115-1124, 1135-1139, 1154-1158 and 1197-1202.
(f) in that regard, both the Council and the Tribunal appear to have quite plainly understood that there were differences between the originally endorsed plans and those evidently proposed in connection with the applications for consent – that was, after all, the central premise of the requirement for the seeking of consents;
(g) in that connection, upon a detailed consideration of the evidence, the Tribunal rejected any proposition that the development occasioned by the consents was properly to be characterised as ‘transformative’;[90] and
(h) further, as the Tribunal explained, the various planning officer reports to the Council prior to the giving of such consents directly or indirectly considered the amenity impacts of the proposed changes upon 32 Piper Crescent, Eltham.
[90]CB44, [106]. See also, CB47-48, [125]-[128]. In this connection, I note that the effect of the evidence of Mr Iles was ultimately that the changes effected by the consents – viewed as a whole – were in his opinion ‘consequential’, but not ‘transformative’: CB267.
In the circumstances, I reject the contention that the Tribunal failed to have regard to any relevant considerations (assuming, without deciding, that the evidence of the applicant and Mr Iles is properly to be so characterised).
Moreover, whilst the applicant slightly belatedly sought to elevate a submission that ‘proper process’ required that the s 173 Agreement be amended or ended, rather than any granting of consents under the relevant operative clauses of the s 173 Agreement, that submission was not advanced by reference to any detailed pathway through the relevant provisions of the PE Act.[91] Indeed, it was not advanced much beyond mere assertion.[92]
[91]While the submissions of counsel referred broadly to s 178A to 178I of the PE Act, it was not clear what particular part of those provisions, if any, were being relied upon, and in respect of which, if any, of the four consents. As counsel noted, by those provisions s 178 of the PE Act had been ‘extensively changed’: T165.
[92]T148-149, 157-161 and 164-167. Cf., CB1603. In the latter connection, I note that in address before the Tribunal the initial submission relevantly advanced on behalf of the applicant seems to have been that ‘consequential variation’ required a ‘more formal permit process’: CB397. When the Tribunal pointed out that s 47 of the PE Act did not apply, the point was conceded and, in substance, re-advanced on the basis that it was ‘a matter of ending the agreement’ and then that it was ‘more appropriate that the agreement be amended’: CB404-406; see also, CB433. At no point was the Tribunal taken to any detail in the underlying and applicable statutory scheme.
In any event, as I have indicated, the consents given by the Council were plainly within the text and contemplation of the operative terms of the s 173 Agreement. In particular, those terms directly referred to ‘the Plans’ much earlier endorsed and, as I have endeavoured to explain, the form of the s 173 Agreement contemplated that the consent process was directed to and could later be used in respect of ‘the Plans’.
In that sense, the various consents seem to have been directed to ‘the Plans’ rather than to any particular operative terms of the s 173 Agreement. Indeed, it is not obvious that any specific amendment was required to the operative terms of the s 173 Agreement in order to have allowed Ms Williams to have developed the land in accordance with the plans which she later proposed.
In any event, in the course of argument counsel for the applicant did not identify any particular clause of the s 173 Agreement that it would have been necessary to amend or the terms in which any such an amendment should have been proposed.
The circumstances to which I have referred tend to suggest that the process of consent was, in each case, a directly contemplated and appropriate route. It follows that I need not further examine the belated submission to which I have referred.
The final aspect of the present group of appeal grounds concerns s 180 of the PE Act which, I have earlier noted, provides as follows –
An agreement must not require or allow anything to be done which would breach a planning scheme or a permit.
[Emphasis added]
Counsel for the applicant submitted that the Tribunal had erred when concluding that the Lot 4 Development Permit had expired at the time at which the Council consents had been granted and thereby misapplied s 180.[93] It was submitted that the Lot 4 Development Permit had been given ‘ongoing effect’ by the s 173 Agreement and that the developments to which the Council had consented were contrary to it. It followed, it was submitted, that the s 173 Agreement had allowed something to be done that was in breach of a ‘permit’ and therefore in breach of s 180.[94]
[93]CB40-41.
[94]T22-25.
Among other things, counsel for the Council highlighted the near circular aspect of the applicant’s argument.[95]
[95]T88-96.
The present issue involves statutory construction[96] together with a consideration of the terms and effect of the Lot 4 Development Permit and the s 173 Agreement.
[96]Cf., Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69] and R v A2 (2019) 269 CLR 507, [32]-[37].
Section 180 falls within Div 2 of Pt 9 of the PE Act, which also contains s 173.
At the time at which the s 173 Agreement was made,[97] Div 2 of Pt 9 also contained, among other provisions –
[97]In respect of which, as I have noted, the parties agreed that the applicable version of the PE Act was version 85.
(a) s 174: which identifies that a s 173 agreement may provide for one or more of a sequence of matters, including conditions subject to which land may be used or developed;
(b) s 176: which identifies when a s 173 agreement ‘comes into effect’;
(c) s 177: by which a s 173 agreement may provide that it will end; and
(d) s 178: concerning the amendment of s 173 agreements.
As I have noted, the provisions concerning notice and objection in respect of amendments to the terms of s 173 agreements were introduced later.[98]
[98]See, Planning and Environment Amendment (General) Act 2013 (Vic) (no.3/2013).
In the statutory context to which I have referred, s 180 operates to confirm the hierarchy of s 173 agreements as against the features of the planning framework referred to elsewhere in the PE Act, particularly the planning scheme and permits issued under the PE Act.[99]
[99]See, Solid Investments Australia Pty Ltd v Greater Geelong City Council [2004] VCAT 2356, [48].
At that time, ‘permit’ was not defined in the PE Act.[100] However, the reference to ‘permit’ in s 180 was, and is, plainly a reference to permits issued under Part 4 of the PE Act.
[100]Again, that definition – to the effect that ‘permit’ includes ‘any plans, drawings or other documents approved under a permit’ – was introduced by Act no.3/2013.
The provisions of Part 4 were, and are, extensive. At the relevant time, among other things, those provisions were directed to –
(a) the making of applications for a permit for ‘a use or development of land’ when required;[101]
[101]Section 47.
(b) the keeping of a register of such applications and the making available of copies of applications to the public;[102]
[102]Sections 49 & 51.
(c) the giving of notice in respect of applications, including the manner in which notice may be given;[103]
[103]Section 52.
(d) the circumstances in which an application for a permit lapses;[104]
[104]Section 54B.
(e) objections to permits, including the manner in which such objections may be made, the rejection by the responsible authority of certain objections and the making available of objections for inspection;[105]
[105]Section 57.
(f) the time for making a decision in respect of an application and the matters which a responsible authority must or may consider when determining an application;[106]
[106]Sections 59-61.
(g) the inclusion of conditions in permits, including when a permit may ‘come into effect’ and in respect of the entry ‘into an agreement with the responsible authority under section 173’;[107]
[107]Section 62.
(h) the giving of notice to objectors in respect of the granting of a permit, including concerning any conditions to which the permit will be subject and requiring that the permit not be issued to the applicant until the end of the period within which an objector may apply to the Tribunal for review of the decision to grant the permit;[108]
[108]Section 64.
(i) the date from which a permit ‘operates’;[109]
[109]Section 67.
(j) the circumstances in which a permit for the development of land ‘expires’ and that the ‘expiry’ of a permit does not affect the ‘validity’ of anything done ‘under that permit before the expiry’;[110]
(k) extensions of time in respect of the operation of permits;[111] and
(l) the availability of issued permits for inspection.[112]
[110]Section 68.
[111]Section 69.
[112]Section 70.
Div 1A of Pt 4 concerns applications for the amendment of a permit, and incorporates by reference many of the sections to which I have earlier referred.
Div 2 of Pt 4 concerns reviews by the Tribunal and Div 3 of Pt 4 concerns the cancellation and amendment of permits by the Tribunal.
Pt 6 of the PE Act concerns enforcement. Div 1 of Pt 6 concerns applications to the Tribunal for enforcement orders. In particular, s 114(1) states –
A responsible authority or any person may apply to the Tribunal for an enforcement order against any person specified in subsection (3) if a use or development of land contravenes or had contravened, or, unless prevented by the enforcement order, will contravene this Act, a planning scheme, a condition of a permit or an agreement under section 173.
[Emphasis added]
Other provisions in Div 1 of Pt 6 concern notice and what an enforcement order may provide for.
Div 2 of Pt 6 concerns offences and penalties. In particular, s 126(1) states –
Any person who uses or develops land in contravention of or fails to comply with a planning scheme, or a permit, or an agreement under section 173 is guilty of an offence.
[Emphasis added]
When referring to ‘a permit’, the obvious premise of many of the provisions to which I have referred is that the ‘permit’ was at the relevant time ‘operating’ and not expired.
From the features of the statutory scheme to which I have referred it should be relatively clear that –
(a) there was a detailed and public process relating to the ‘issuing’ and operation of permits;
(b) permits may be issued on conditions – including, entry into a s 173 agreement;
(c) permits may ‘operate’ upon specified events and for a specified period;
(d) permits may ‘expire’ – which will not affect the ‘validity’ of anything done before expiry – however, implicitly, anything relevantly done after ‘expiry’ will not be permitted; and
(e) an enforcement order may be sought and obtained in respect of the contravention of ‘a condition of a permit’ and a person who fails to comply with ‘a permit’ is guilty of an offence.
In short, a permit may be ‘issued’, it may ‘operate’, and, it may ‘expire’. A person who contravenes a condition of ‘a permit’ while it is operating may be the subject of an enforcement order and/or be guilty of an offence. It would not obviously be coherent with the provisions to which I have referred for a person to face an enforcement order, or a penalty, for an offence in respect of acts or omissions in relation to a permit that had, at the relevant time, expired.
The scheme to which I have referred must inform the reference to ‘a permit’ in s 180. As I have noted, the function of s 180 is to identify and confirm a statutory hierarchy of instruments, and as in the earlier provisions to which I have referred, the premise must be that such instruments are at the relevant time ‘operating’. It follows that to the extent that the applicant submits that the reference in s 180 to ‘a permit’ extends to a permit that has expired, that submission must be rejected.
For completeness, I should perhaps add that part of the applicant’s argument was advanced by reference to certain authorities.[113] In my view, the passages of the authorities to which counsel for the applicant referred do not displace the above analysis of the relevant statutory scheme. Indeed, the reasoning of Osborn J (as his Honour then was) in North Burnside Pty Ltd v Melton Shire Council at [37] is essentially consistent with the above, albeit that his Honour was there considering the equivalent provision in the earlier Town and Country Planning Act 1961 (Vic).
[113]North Burnside Pty Ltd v Melton Shire Council (2006) 18 VR 1, 12-16 and Manderson v Wright [2016] VSC 677, [31].
The statutory context outlined above must also inform the proper construction of the s 173 Agreement, particularly the reference in that agreement to the Lot 4 Development Permit.
As I have earlier noted, it is uncontentious that at the time at which the s 173 Agreement was registered, in August 2008, the Lot 4 Development Permit had already expired. The Tribunal found that the Lot 4 Development Permit expired on 25 February 2007.[114] After that time, in the language of the PE Act, the Lot 4 Development Permit was not ‘operating’, as it had ‘expired’.
[114]CB17, [7].
On the evidence before the Tribunal, nothing was thereafter done in order to, in effect, re-enliven the Lot 4 Development Permit as a ‘permit’ issued under the PE Act. No application was made and none of the other steps in Pt 4 of the PE Act were undertaken.
However, as I have earlier noted, the Subdivision Permit continued to ‘operate’, and that required the making of a s 173 Agreement on terms that, in substance, required that development be undertaken in accordance with ‘the Plans’ endorsed under the Lot 4 Development Permit, ‘unless with further written consent of the Responsible Authority’.
Accordingly, it is unsurprising that the s 173 Agreement was made in terms that referred directly to the Lot 4 Development Permit. That was, however, not to ‘extend’ the operation of the Lot 4 Development Permit as ‘a permit’ made under the PE Act; that permit had already expired. It was no more than to give the terms of that document – conveniently described as the ‘Lot 4 Development Permit’ – operation under, and in accordance with, the terms of the s 173 Agreement. In that sense, it thereafter operated not as ‘a permit’ issued under the provisions of the PE Act, but as part of the terms of a s 173 Agreement made under the PE Act.
It follows that if there had been a subsequent breach of the terms of the ‘Lot 4 Development Permit’, any application for an enforcement order or, for that matter, an offence, could and would have been brought for breach of ‘an agreement under section 173’, not for breach of ‘a permit’.
It also follows that there is no inconsistency between the s 173 Agreement and s 180 of the PE Act. In short, the s 173 Agreement did not breach ‘a permit’ and nor did the consents given under the s 173 Agreement.
As I have earlier noted, the Tribunal dismissed the present argument on the basis that, among other things, there was no breach of s 180 of the PE Act because there was no ‘permit’ in existence capable of being breached. As I have endeavoured to explain, in my view it was correct to do so.
In light of the above, grounds 1, 3 and 5 (and the relevant part of ground 2) must be rejected.
E Grounds 4 and 6: assessment of the evidence
Ground 4 is directed to ‘the totality of the evidence’ and ground 6 is directed to the alleged ‘misconstruction and rejection of expert evidence’.
Counsel for the applicant confirmed that the argument in respect of ground 4 proceeded upon the central contention that the Tribunal had misconstrued the s 173 Agreement, which was said to have ‘infected’ the Tribunal’s consideration of the evidence.[115]
[115]T37-38.
I have earlier endeavoured to explain that I do not accept that the Tribunal (or the Council) misconstrued the s 173 Agreement. I have also sought to explain the likely limited relevance (if any) of the evidence of the applicant and Mr Iles to the determination of the issues before the Tribunal.
Further, it is evident that the Tribunal considered ‘the totality of the evidence’, but simply preferred other evidence when confirming that the proposed changes were not ‘transformative’ and that the Council had or must have had regard to issues of ‘amenity’. So much is clear at various points in the reasoning of the Tribunal, including the following –
In every council report, the purposes of the 34 Piper Agreement [ie, the s 173 Agreement] are acknowledged and in all reports the amenity impacts to the 32 Piper Land are either considered directly or by inference. It follows that I disagree with Mr Iles that the decrease in setback in the common boundary (for a short distance) following which the setback increased coupled with the removal of vegetation was a fundamental oversight by council. Rather, the council considered these aspects specifically, and the amenity consequences of these changes [ie, in the reports to which the Tribunal referred].[116]
[Emphases added]
[116]CB129, [184]. It follows from what I have said that there is nothing in the applicant’s various submissions to the effect that the evidence of Mr Iles was ‘uncontested’ and that there was ‘no opposing expert’.
Ground 6 emerged as specifically directed to the evidence of Mr Iles. What I have already said should be sufficient to indicate that there can be nothing of substance in the applicant’s criticism of the treatment of that evidence by the Tribunal.
In any event, it was submitted that the Tribunal had misconstrued the evidence of Mr Iles as a ‘review of the underlying merits’.[117] Having considered the form and content of Mr Iles’ report,[118] and his relevant oral evidence,[119] I do not consider the Tribunal to have erred in perceiving his evidence as having verged into the territory of merits review.
[117]CB59-60, [185]-[186].
[118]CB1542-1577. See also, CB1692-1751.
[119]CB264
In that connection, I note that the starting premise in Mr Iles’ report, and thus his oral evidence, was that the consents given by the Council were ‘other than in accordance with a Section 173 Agreement’.[120]
[120]CB1018.
Thereafter, Mr Iles commenced upon a consideration of the differences between the earlier endorsed plans and those for which consent was granted together with an expression of his opinions concerning the ‘amenity consequences … as experienced from No.32 Piper Crescent’. Part of that analysis seems to have turned upon Mr Iles’ own interpretation of the applicable legal principles.[121]
[121]See, in particular, CB1032-1034.
Mr Iles thereafter suggested ‘potential mitigation measures’ should the Tribunal be ‘interested in what intervention may mitigate and reduce amenity impacts’.[122] In particular, Mr Iles’ report identified the following –
[122]CB1044.
§ Additional screen planting along select parts of the common boundary between No.32, 34 and 37 Piper Crescent where there is a direct line of sight between habitable room areas and structures on higher ground (i.e., No.34 and 37 Piper Crescent).
§ Better integration of materials, colours and finishes of screening elements recently constructed on No.34 Piper Crescent.
§ Check the sightline and effectiveness of the screening structures on No.34 Piper Crescent to appropriately manage the privacy of No.32 Piper Crescent in accordance with ResCode provisions.
§ A thorough engineering review should be completed to ensure that all structures on No.34 Piper Crescent are connected to a legal point of discharge, and stormwater runoff is managed appropriately.[123]
[123]CB1044-1045.
Notwithstanding the above, in the course of his oral evidence Mr Iles indicated that –
(a) the process which he had undertaken was retrospective, which could be an ‘unfair position’;[124]
[124]CB252.
(b) to the extent that his opinions were directed to ‘noise’, he was not an ‘acoustic expert’ and could not assist the Tribunal ‘insofar as issues of noise’;[125]
[125]CB259, 271 & 273.
(c) while he was ‘surprised’ that the Council officer had reached a level of comfort in respect of tree removal, he considered that the Council may well have ‘reached a similar position’ even if it had engaged with the applicant;[126]
(d) in any event, the Council officer had a referral from an arborist – which Mr Iles had not seen – and the ‘trade off’ made in respect to the trees had been ‘open’;[127] and
(e) he did not have ‘sufficient information’ in order to offer ‘a really detailed response in terms of water seepage or drainage’.[128]
[126]CB261.
[127]CB296-301.
[128]CB272.
In short, the extent to which Mr Iles’ evidence could reasonably be said to stand to in any way impugn the decisions of the Council must ultimately have been quite limited.
In any event, the point that the Tribunal made was that the issue before it was ‘the legal adequacy’ of the decisions under review and that the evidence of Mr Iles was of limited, if any, relevance to such a determination. I have made that point above. I do not accept that the Tribunal was in error in making essentially the same point.
Notwithstanding the above, counsel for the applicant submitted further as follows –
if the Tribunal had proper regard for Mr Iles’ evidence it should have accepted that the consents of the Council resulted in development that had increased intensity in terms of external amenity impacts on the applicant’s property and come to a different decision that the Council’s decision-making was flawed because it failed to adequately consider the degree of consistency between the new plans and the terms, purpose and intent of the 34 Piper Agreement [ie, the s 178 Agreement].[129]
[Emphases added]
[129]T45.
I reject any submission that the Tribunal did not have regard to the evidence of Mr Iles. The real point, however, is that a submission of the kind identified above – that is, a submission premised in a failure of the Tribunal to have ‘proper regard’ or ‘to adequately consider the degree of consistency’ – reveals the essence of the complaint to be one of the weight afforded to evidence rather than to whether the findings of the Tribunal were open. Only the latter can give rise to a question of law.[130]
[130]Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176, [21]-[25]. See also, Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48.
Much the same point applies to the similar arguments advanced under the aegis of ground 4.
For these reasons, grounds 4 and 6 must be rejected.
F Grounds 2 and 7: procedural fairness
Ground 7 concerns the correctness of the Tribunal’s treatment of the applicant’s claim to have been denied procedural fairness and, for the most part, ground 2 concerns the alleged failure of the Tribunal to give ‘adequate or sufficient reasons’ in respect of its rejection of that claim.
As I have earlier outlined, the essential point is that in granting each of the consents, the Council did not formally notify the applicant nor afford him any opportunity to be heard. In written submissions, however, the applicant described the contention as follows –
the Council’s failure to provide public notification and a right to review the Decisions amounted to a denial of natural justice …[131]
[131]CB1223.
That said, at least in connection with the consent granted by the Council in December 2020, late in the hearing it emerged that the applicant had become aware of the relevant application for consent and thereafter put in an informal ‘objection’ stating his position, including in respect of the claimed ‘severe amenity impacts’ upon his property.[132]
[132]T174-175. Cf., CB2000-2002.
It also emerged that since at least May 2014 the applicant and his wife had been advancing various complaints with Council officers,[133] including with respect to the claimed ‘amenity impacts’.[134]
[133]And, it also seems, to the Victorian Ombudsman, the Freedom of Information Commissioner and the State member for Eltham: CB1495-1496.
[134]T176-177: CB1494-1496.
None of the above seems to have altered the course of events in respect of any of the applications for consent.
The Tribunal dealt with the applicant’s claim to have been denied procedural fairness in its reasons at [194] to [201].[135] It recorded the various submissions of the parties and, in substance, observed that –
[135]CB61-63.
(a) consent under a s 173 agreement is not a decision under the planning scheme;
(b) such a determination is unaffected by the considerations expressly identified in s 60 of the PE Act concerning permit applications; and
(c) Tribunal authority – particularly, Tarwin Valley Coastal Guardians Inc v Minister for Planning & Anor[136] – has long recognised that applications for ‘secondary consent’ arising out of the terms of a permit do not give rise to any right to notice.
[136][2010] VCAT 1226 (Tarwin Valley).
Counsel for the applicant described the reasoning of the Tribunal as having misconceived the applicant’s case in respect of procedural fairness.[137]
[137]T49.
That said, in the Tribunal, the relevant oral submissions of counsel for the applicant were advanced quite briefly in the course of an otherwise lengthy address.[138]
[138]CB427-430.
Further, in the present context, none of the above points made by the Tribunal concerning the applicant’s procedural fairness ‘case’ were said to be strictly incorrect.
In addition, as counsel for the Council explained, the Tribunal’s consideration of s 60 of the PE Act may well have been in response to a submission advanced below by counsel for the applicant.[139]
[139]T144-145. Cf., CB430.
Counsel for the Council also explained –
(a) the role of secondary consent clauses in a permit, as distinct from the primary consent – being the permit itself;[140] and
(b) the fact that it was ‘long established’ that ‘notice is not required to be given of requests for consent under secondary consent provisions’.[141]
[140]T71-73 & 179-180.
[141]T126-129.
In light of the above, counsel for the Council submitted that when referring to Tarwin Valley, the Tribunal is to be understood as having concluded – by ‘parity of reasoning’[142] – that no such notice requirement and thus no requirement for the applicant to be heard should be taken to have arisen in respect of the applications for consent arising out of the clauses in the s 173 Agreement.
[142]T136-137 & 145.
As so explained, I accept that the Tribunal’s pathway of reasoning is both explicable and apparent. It follows that I do not accept that the relevant reasoning of the Tribunal is legally erroneous.
The relevant part of the applicant’s argument in respect of ground 2 must be rejected.
That leaves ground 7 which, in substance, concerns whether the Tribunal’s rejection of the applicant’s claims in respect of denial of procedural fairness was correct.
In that connection, counsel for the applicant relied upon aspects of the reasoning of Quigley J in Kinchington Estate Pty Ltd v Wodonga City Council.[143]
[143](2019) 243 LGERA 70 (Kinchington Estate).
In that regard, and particularly with reference to passages drawn from the reasons of members of the High Court in Kioa v West,[144] counsel for the applicant submitted that –
[144](1985) 159 CLR 550 (Kioa v West).
(a) the decision of the Council to grant consent ‘has a statutory basis’ – identified in argument as being a ‘flow on’ from s 173;[145]
[145]T49-51.
(b) there was no ‘clear manifestation’ of a statutory intention to exclude a duty to afford procedural fairness – as a consequence of which the Council had been ‘bound to hear the applicant before making the decisions’;[146] and
[146]T50.
(c) the Council’s denial of such an opportunity was material because, as counsel put it –
it can be extrapolated from Mr Iles’ evidence, that because there were material consequences, or the changes had consequential impacts, that had the appropriate process been adopted by the council, that a different, more sensitive development would have ensued. And that can be seen really going back to the planning report for [35 Piper Crescent] that we went through. I accept that was for a planning permit, but … the applicant’s submission is it does present a better outcome in the sense that it allows those third parties who either will be affected or potentially affected to voice their concerns. I suppose logic, [unless] you’ve got a completely unreasonable decision maker, logic suggests that that will naturally present as a better outcome.[147]
[147]T170.
…
My submission would be on the balance of probabilities, either the council, or indeed a Tribunal upon review, would come to a different form of development. Now, would it have been exactly the same as the endorsed plans? Maybe not. But it would it have been certainly softened with a more sensitive interface between the two properties, that’s where I think the balance of probabilities lie … .[148]
[148]T176.
Counsel for the applicant also pointed to actions taken in relation to a planning permit concerning 35 Piper Crescent, Eltham.[149] Counsel described that process as having given rise to a ‘superior outcome’.[150]
[149]CB666-682.
[150]T57. I note the various observations made by the Tribunal in the course of considering the same submission below: CB394-395.
It must be said that the submissions of counsel for the applicant in respect of the issue of materiality – particularly, the direct or indirect references to perceptions of ‘practicality’[151] – presented as partly informed by a conception of any process of objection and associated hearing as akin to a bargaining process in which the very fact that objection was taken would likely lead to some form of advantage to the objector whether the objections taken were truly meritorious or not. I should not be read as being in any way critical of counsel, however such a contention is laced with an unattractively cynical flavour.
[151]For example, T59-60.
Counsel for the Council essentially resisted all aspects of the applicant’s submissions directed to the issue of procedural fairness.[152]
[152]T118-147.
The first issue presented was whether the Council had exercised a ‘statutory administrative power’ when granting each of the consents under the s 173 Agreement.
In that regard, as I have noted, counsel for the applicant emphasised the reasoning of Quigley J in Kinchington Estate. In that instance, a landowner which was a party to a s 173 agreement had applied to a responsible authority to, in various respects, amend the agreement. That request was made pursuant to the amendments to the PE Act introduced in respect of the ending or amending of s 173 agreements, to which I have earlier referred. Those provisions – particularly s 178B – identified certain considerations that the responsible authority must consider. In response to the application, however, the responsible authority –
(a) did not agree to the proposal to amend the s 173 agreement; and
(b) refused to provide the landowner with any reasons for that decision.
In that connection, the application of the landowner party to the s 173 agreement had been made pursuant to s 178A(1) of the PE Act which specifically provided for the making of such an application, and the refusal of the responsible authority was given pursuant to s 178A(3), which provides that –
The responsible authority must notify the owner as to whether it agrees in principle to the proposal under subsection (1).
The submissions of the parties in Kinchington Estate raised questions concerning the nature of the power exercised by the responsible authority and whether the relevant provisions of the PE Act excluded the operation of the rules of procedural fairness ‘expressly or by clear implication’ (the latter issue was relevant to the question whether the Council was a ‘tribunal’ within the meaning of the Administrative Law Act 1978 (Vic)).[153]
[153]Kinchington Estate (n 143) [37].
Contrary to the submission of the responsible authority to the effect that the power concerned was ‘contractual’ and arose under the s 173 agreement, her Honour considered the power ‘plainly’ to have arisen from s 178A of the PE Act.[154]
[154]Ibid [50]-[52].
As to the issue of procedural fairness, her Honour referred to several authorities, including the following passage from the reasons of Brennan J in Kioa v West –
It is seldom possible to say that the legislature intends to exclude observance of the principles of natural justice in the exercise of a statutory power which is apt to affect individual interests and the more difficult and more frequently addressed question is what the principles of natural justice require in the particular circumstances.[155]
[155]Kioa v West (n 144) 612.
Her Honour confirmed that ‘what is appropriate in terms of natural justice depends on the circumstances of the case’ and was ‘not convinced’ that the statutory scheme there under consideration ‘expressly or impliedly’ excluded the requirements of procedural fairness.[156]
[156]Kinchington Estate (n 143) [72]-[74].
Thereafter, in a passage emphasised by counsel for the applicant, her Honour stated –
It is now well established that the exercise of a statutory administrative power tracks the common law duty to act fairly, in the sense of according procedural fairness, unless there is a clear manifestation of a contrary statutory intention. A legislative intention to exclude the rules of procedural fairness will not be assumed or spelled-out from indirect references, uncertain inferences or equivocal considerations. The starting point is therefore that the Council’s exercise of that statutory power to refuse to agree in principle must be taken to attract the requirements of procedural fairness unless it can be shown that the legislation manifests a contrary statutory intention. I am not persuaded that the Council has demonstrated that the legislation evinces a clear intention to exclude those requirements.[157]
[157]Kinchington Estate (n 143) [75].
Her Honour did not consider that analysis to be displaced by the presence of review rights in Pt 9, Div 2, Subdiv 2 of the PE Act.[158]
[158]Ibid [76]. Cf., ss 177-178I of the PE Act.
Finally, her Honour observed that –
The Explanatory Memorandum suggests that the statutory scheme established by ss 178A-178F should be treated as being akin to an application for a planning permit amendment. By analogy, [it] is difficult to deny that a Council would be required to act other than in accordance with the procedural fairness requirements in that context.[159]
[159]Kinchington Estate (n 143) [79].
I pause to observe, of course, that like the scheme of provisions relating to applications for planning permits, the scheme inserted into the PE Act as ss 178A to 178I comprises a sequence of provisions relating to application, notice, objection and review by the Tribunal in respect of proposals to amend a s 173 agreement.[160] In that regard, as counsel for the Council submitted, the contention that a decision within that scheme of provisions was contractual and not conditioned by the rules of natural justice does seem to have been ‘somewhat ambitious’.[161]
[160]In the latter respect, see ss 184A-184G of the PE Act.
[161]T123.
It will be evident from the above that, strictly speaking, the reasoning in Kinchington Estate was ultimately directed to specific statutory provisions (particularly, ss 178A(1) and (3) and 178B) and did not concern a ‘consent’ given pursuant to the terms of a s 173 agreement.
That said, counsel for the applicant relied upon various aspects of the reasoning in Kinchington Estate in support of the proposition that the present ‘consents’ involved the exercise of a ‘statutory administrative power’. As I have earlier noted, counsel submitted that the power flowed from s 173 of the PE Act.
For his part, counsel for the Council submitted that the power ‘arose under the terms of the agreement’ and was not attributable to a specific statutory provision.[162]
[162]T118-124.
The present issue is plainly one of some difficulty. Section 173 of the PE Act permits a responsible authority to enter into such agreements, but does not directly empower a responsible authority to act under the terms of such agreements.
Section 174(2), however, states that such an agreement may provide for matters including restrictions on the use and development of land, conditions on which land may be used or developed and any incidental matters. It must follow that a s 173 agreement may include provisions dispensing with restrictions or conditions generally or in specified circumstances (subject, of course, to s 180).
Further, s 171(1), which is also within Pt 9, Div 1 of the PE Act, confers upon a responsible authority ‘all the powers necessary’ for the purpose of ‘carrying out its functions and duties under this Act’.
It follows, in my view, that the scheme of provisions confers upon responsible authorities the power to make s 173 agreements incorporating consents of the present kind, but also confers upon such an authority the power to carry out the functions and duties created by that agreement.
That said, none of the provisions to which I have referred is of the specific kind considered by Quigley J in Kinchington Estate, and to simply say that a responsible authority has a statutory power to perform an act authorised by an agreement made between it and another person may not answer the question whether the power presently under consideration is properly to be characterised as ‘statutory administrative’ in nature.
In that regard, it is undeniable that the present power of the Council to consent would not have existed at all but for the terms of the s 173 Agreement. It is also important that those terms are contractual. That is, they were made between contracting parties, one of whom was the applicant.
Further, as counsel for the Council noted,[163] the terms of the s 173 Agreement were written and agreed to constitute the entire agreement between the parties, and, for that matter, it was agreed that the agreement may not be altered or modified except by further written and signed agreement by each of the parties.[164]
[163]T124.
[164]CB661.
In that connection, as I have earlier explained, the terms upon which the Subdivision Permit had been issued – presumably to the benefit of the applicant, as he had sought it – plainly required that the s 173 Agreement be made. The terms of the Subdivision Permit also specifically required that the s 173 Agreement include the provisions for consent that are now the subject of controversy. It follows that the applicant was, or should have been, on notice from well before the time that the s 173 Agreement was made that the consent provisions must be included in it.
In that context, of course, the s 173 Agreement was prepared by the applicant’s solicitors and at the applicant’s expense. There could have been no impediment to him obtaining advice concerning the terms of the proposed agreement, including the inclusion of terms additional to those required by the terms of the Subdivision Permit.
In that regard, it was not controversial that the s 173 Agreement could have included terms that specified a process of notification and objection in the event that the Council was to later consider granting consent pursuant to the clauses required to be included.
Indeed, as counsel for the Council noted in argument,[165] if there had been controversy concerning any proposal by the applicant to include such terms, s 184 of the PE Act provides that a landowner may apply to the Tribunal for an amendment to the proposed agreement.
[165]T119-120.
It follows that the present position is very far from the circumstances considered by her Honour in Kinchington Estate. Indeed, it is far from the usual case in which a specific statutory power is exercised upon the application of an applicant and in respect of which it might be thought ordinarily to follow as a matter of course that such an applicant should be provided with an opportunity to be heard prior to the exercise of that power.
Notwithstanding all of the above, I am conscious that a s 173 agreement is a ‘hybrid instrument’ that operates as a ‘planning control over land’ and so is not a purely private arrangement. In that regard, such an agreement may be registered on title and bind a subsequent purchaser – which, in this case, in fact occurred.
Further, in a broad sense, a grant of consent of the kind presently under consideration has the potential to affect the interests of both the landowner concerned and adjoining landowners including, in the present instance, the applicant.
It might well be debateable whether, for present purposes, an ‘interest’ in ‘amenity’ is sufficiently legal or substantial, although no such argument was developed by either party in the present proceeding.
In any event, I am presently prepared to assume, without deciding, that an exercise by the Council of the consent power created by the s 173 Agreement should attract requirements of procedural fairness or, more specifically, not wholly exclude those considerations.
The real question, however, is the present content of those requirements and whether the statute and other relevant circumstances specifically and sufficiently addressed them.
In that sense, the present case is considerably more complicated than the circumstances presented in Kinchington Estate. In that case, there was a specific statutory power and a responsible authority that had responded to an application made by a particular landowner party to a s 173 agreement. In those circumstances, one can well understand why it was that the exercise of such a statutory power should be taken to be conditioned by the requirements of procedural fairness unless the contrary was clearly shown.
Further, because the question before Quigley J was only whether the responsible authority was relevantly subject to the requirements of procedural fairness, she was not required to finally determine what Brennan J in Kioa v West described as the ‘more difficult’ question, namely what, in the particular circumstances, the principles of natural justice in every respect required. In the present case, that is the real issue.
In that connection, I have already referred to the scheme of the PE Act relating to the making of s 173 agreements and the fact that the applicant could have sought that relevant provisions be included in it. That is a very important consideration, as it underlines one way in which the applicant might have acted to protect his interests, as he perceives them, and specifically to require that which he now says should be otherwise required by operation of law.
Of even greater importance, however, it seems to me, is that the provisions of the PE Act allowed such a step to be taken, and conferred upon the applicant, as the contracting party, the right to seek review from the Tribunal if he had sought the inclusion of such terms and the Council had refused.
In that sense, the scheme of the Act provided the applicant with the potential to include terms in the s 173 Agreement giving effect to a process of notification and objection satisfactory to his requirements.
The significance of that scheme, of course, is that elsewhere in the PE Act – including now in respect of proposals to amend a s 173 agreement – there are specific and very detailed provisions in respect of notification, objections and review by the Tribunal. However, the PE Act includes no such scheme of provisions in respect of actions taken under a s 173 agreement.
Nor does the PE Act include such a scheme of provisions in respect of secondary consents appearing in permits. That is, as I have noted, the subject matter of the passage from the reasoning in Tarwin Valley that the present Tribunal quoted and relied upon in connection with the applicant’s claim to have been denied procedural fairness. Counsel for the applicant suggested that the Tribunal’s reliance upon that passage was inapposite; however, I can plainly see how it was relevant to the present issue.
It is not difficult to see that the PE Act would not include provisions in respect of notification, objection and review by the Tribunal in connection with the exercise of secondary consents in permits: the anterior process of granting the permit is itself subject to a detailed process of notification, objection and potential review by the Tribunal.
It is also evident that the scope of development that may be embraced by the exercise of a secondary consent has come to be affected by ‘criteria’ identified in decisions of the Tribunal. Those criteria are said to exclude ‘third party participation or rights of review’.[166]
[166]See, in particular, Westpoint Corporation Pty Ltd v Moreland City Council [2005] VCAT 1049, [38]-[39].
The process by which a s 173 agreement is made is, of course, different. However, as I have earlier sought to explain, the process anterior to the making of such an agreement should ordinarily identify that the inclusion of such consent terms in a s 173 agreement is a condition of obtaining the permit sought, and the party concerned has or should have the ability to influence and include further terms in the s 173 agreement to their satisfaction.
Indeed, since the inclusion in the PE Act of the more extensive provisions relating to the amendment of s 173 agreements,[167] such a party has specifically been able to seek an amendment in order to include such terms even if the agreement concerned did not originally contain terms to their satisfaction.
[167]That is, ss 178A-178I and 184A-184G.
In each case, because the party concerned has or very likely has had anterior opportunities to be heard and to protect their position satisfactorily, it is not difficult to see why it would be that the Act has included no provisions seeking to impose a later process of notification, objection and review by the Tribunal.
It is also relevant to note that in each instance the PE Act provides for ‘a person’ to apply to the Tribunal for a declaration concerning ‘anything done by a responsible authority under this Act’.[168] Indeed, that was the route adopted by the applicant in the Tribunal.
[168]Section 149B(1).
The availability of that route in combination with the scheme referred to above tends to underline the proposition that the provisions of the PE Act have anticipated and sought to regulate, in quite particular terms, the content of the requirements of procedural fairness in cases involving the exercise of a ‘secondary consent’ under a permit as well as the granting of a ‘consent’ under the terms of a s 173 agreement.
In the circumstances to which I have referred, as I have indicated, it seems to me that the legislature has anticipated and, indeed, specifically regulated the manner and extent to which a person in the position of the present applicant should have a right to be heard in respect of the exercise of a consent under s 173 agreement. In that connection, in the present context counsel for the applicant correctly acknowledged that in respect of each of the consents the applicant was properly to be categorised as a ‘third party’.[169]
[169]T169.
In my view, the relevant scheme of the PE Act is both coherent and sufficient, and it is neither necessary nor desirable for the Court to interfere with it via any free floating notions of a ‘right to be heard on the merits’ or a ‘right to review’ introduced generally and by reference to the principles of procedural fairness.
Indeed, it is hard to see how that could be done. Coherently with the other parts of the PE Act to which I have referred, any such process should be conditioned upon, and introduced via, an extensive scheme of provisions relating to notification, objection and review by the Tribunal. The introduction of any extensive scheme of that kind should and must be the subject of appropriate legislative amendment.
It follows, in my view, that in the present instance there was no denial of procedural fairness to the applicant.
The final issue is materiality and a consideration of that issue must proceed upon the assumption that what I have said about the claimed denials of procedural fairness is wrong.
As I have earlier noted, the applicant submitted as a matter of ‘practicality’ that the provision to the applicant of an opportunity to be heard would, more likely than not, have produced a ‘superior outcome’. As I have also noted, aspects of that submission presented as infused with a somewhat cynical flavour. However, it is also the case that the submission was vague as to what, if any, details before or able to be put before the Council might realistically have produced a different result.
For his part, counsel for the Council emphasised the onus resting upon the applicant, the vagueness in the submissions advanced as well as other aspects of the circumstances that tend against the suggestion that there is any realistic possibility that the outcome could be different. In particular, as counsel put it –
the planning scheme itself says that this type of development on this type of lot at this type of zone can be undertaken without any permit at all.[170]
[170]T138.
Further, as I have earlier noted, the Tribunal rejected any proposition that the development was ‘transformative’ and considered the Council sufficiently to have considered the issues of ‘amenity’; particularly in the planning officer reports to which I have earlier referred.
In this connection, I have also earlier referred to the unavailing outcome of any of the applicant’s complaints to Council and others since at least May 2014.
That said, another significant feature was highlighted by counsel for the Council, namely that there had been a separate requirement to obtain a building permit in the course of which ‘amenity concerns of the type that are in issue here are relevant and are necessarily considered’.[171] In that connection, the applicant had evidently advanced a ‘series of complaints’.[172]
[171]T78.
[172]T78.
Counsel for the applicant did not contend to the contrary[173] and it is not evident that, from the perspective of the applicant, that process had obviated any need for the present proceeding and the complaints sought to be advanced by the applicant in it.
[173]The documents relevant to the process by which a building permit was sought were said to be in the Court Book, which was 2140 pages in length. Neither counsel identified or went to the specific documents in the course of argument.
The arguments of both counsel proceeded directly or indirectly with reference to the reasons of Kiefel CJ, Gageler, Keane and Gleeson JJ in MZAPC v Minister for Immigration and Border Protection.[174]
[174](2021) 390 ALR 590, [27]-[77].
Even more recently, however, the High Court considered the issue of materiality in respect of a breach of procedural fairness in Nathanson v Minister for Home Affairs.[175]
[175](2022) 403 ALR 398 (Nathanson).
In that connection, Kiefel CJ, Keane and Gleeson JJ confirmed that the appellant had borne the onus of demonstrating that a denial of procedural fairness was material in the sense that it had deprived him of ‘a realistic possibility of a different outcome’.[176]
[176]Ibid [1].
In that context, the appellant had not been required ‘to articulate a specific course of action which could realistically have changed the result’.[177] In that connection, their Honours explained as follows –
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 or 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. Nothing said in MZAPC denies this. 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 of that opportunity and that, by doing so, the party could achieve a favourable outcome.[178]
[Footnotes omitted]
[177]Ibid [2].
[178]Nathanson (n 175) [33].
In that instance, historical facts evident in the reasons for decision of the Tribunal had been sufficient to discharge the appellant’s onus.
It follows from the above that the determination of the present question – which is essentially one of estimation – must proceed by reference to the onus resting upon the applicant, albeit also by reference to the ‘undemanding’ standard of ‘reasonable conjecture’. That is, if given an opportunity to present his case to the Council, the applicant could achieve a ‘favourable outcome’.
For present purposes, I will put aside the discomforting aspect of some of the submissions advanced by the applicant in connection with the issue of materiality. Nonetheless, I am conscious that the applicant’s submissions were vague as to what might now be done concerning the various works completed pursuant to the Council’s consents.
In that regard, I am mindful that any opportunity for the applicant to be heard by the Council must take place in circumstances in which all of the works have been completed. In that regard, it is important to note that most of the works concerned have long been completed. Indeed, it seems that the dwelling at 34 Piper Crescent, Eltham, was constructed nearly ten years ago.
In that connection, as I have earlier noted, it was not said that any of the works should be demolished.[179] At most it was said that the parties should be sent away to see if ‘some consensus can be reached’.[180] Further, the only specific aspects mentioned in oral argument were noise from a pool filter and the potential installation of ‘mature trees’ at the boundary.[181] That said, counsel properly acknowledged that he was ‘really just making some suggestions here … [without] prejudice to … my client’s position’.[182]
[179]Indeed, counsel for the applicant conceded that the applicant was not looking at a result involving the demolition of the house: T31 and T33.
[180]T32.
[181]T33.
[182]T33.
Contrary to the above ‘suggestions’, however, counsel for the Council referred to Mr Iles’ report concerning noise from the pool filter and noted that the plans had required that the filter be enclosed and that the policies to which Mr Iles referred were not applicable in a residential context.[183] It was not said that any enforcement measures had been pursued in respect of any failure of the owner of 34 Piper Crescent, Eltham, to comply with requirements of any plans concerning the pool filter.
[183]T142. Cf., CB1164.
I should perhaps add that the planning officer report relating to the last of the applications for consent referred to aspects of the history and discloses that seemingly in about 2019 there was a ‘planning investigation’ in connection with an apparent allegation that the ‘swimming pool pump/filter system was not in compliance with planning permit and section 173 agreement’.[184] The report records the allegation as having been ‘resolved’ and that ‘no conditions’ were required ‘to bring the land back into compliance’. More broadly, the report states that –
… the investigation is closed as the pump/filter is found to be compliant with the Endorsed Plans and that no breaches of the Nillumbik Planning Scheme have been identified.[185]
[184]CB1197-1202.
[185]CB1200.
Further, in respect of trees, I have earlier referred to aspects of the planning officer’s report preceding the granting of the first of the applications for consent and, as counsel for the Council noted, tree removal had occurred as a consequence of contemporary standards in respect of arboriculture.[186]
[186]T81-82. Cf., CB1115-1124.
Counsel for the applicant did not address how it was that those standards could accommodate the installation of the ‘mature trees’ to which he referred.
In any event, I have already noted the ultimately quite limited force in the relevant opinion evidence of Mr Iles.
These aspects tended to underline a sequence of broader considerations, namely that –
(a) no permit had been required in connection with any of the works for which consent was given;
(b) each of the proposals had evidently been given very detailed consideration by Council planning officers prior to the granting by Council of the consents sought;
(c) such consideration was found by the Tribunal to have embraced ‘amenity’ aspects;
(d) the developments concerned had not been ‘transformative’; and
(e) for the reasons that I have earlier identified, none of the consents were given unlawfully.
Further, as I have noted, the applicant has pursued his ‘amenity’ complaints variously since at least May 2014 and none of that seems to have moved the Council to do or consent to anything other than that about which he now complains.
In particular, the applicant seems to have lodged an informal written objection in connection with the consent ultimately granted in December 2020.[187] In that sense, at that time, he created his own opportunity to be heard and articulated his ‘amenity’ objections directly to the Council. Nonetheless, the consent was evidently granted.
[187]CB2000-2002.
Indeed, the report of the planning officer prior to the grant of that consent described the proposal (relating to the construction of a roof over an existing terrace) as resulting in a ‘good planning outcome’.[188]
[188]CB1201.
In this context, I note that beyond the submission that the Council acted unlawfully in connection with granting the consents (which I have rejected), it was not presently said in address that the Council acted unreasonably in addressing the various ‘amenity’ complaints. An unreasonableness contention was pursued before the Tribunal – and rejected – but that was not a ground directly or indirectly pursued in connection with the ‘questions of law’ raised in the present proceeding.
In the end, the effect of the applicant’s submissions was that the opinions of Mr Iles (and, perhaps, those of the applicant – who is an architect) should speak for themselves and were so intrinsically capable of being persuasive that it should be accepted that some benefit to the applicant could accrue from an opportunity to present those opinions to Council.
I am very conscious that there is a rather vaguely defined area of contested debate concerning the only specific ‘suggestions’ sought to be advanced by the applicant in argument. I am also conscious that a forgiving approach is appropriate and that the applicant need not specifically mark out the specific route to a favourable result of a precisely identified kind. That is, a margin should be allowed for a degree of speculation.
That said, however, it remains the case that the applicant bears an onus and, as I have sought to explain, the circumstances of the present case are quite different to those considered by the High Court in Nathanson.
In the end, albeit that the applicable standard is ‘undemanding’, I would need to feel some measure of persuasion that the provision of an opportunity to the applicant to pursue his various complaints before the Council could realistically result in a different outcome.[189] For the reasons which I have endeavoured to explain, I am not so satisfied.
[189]Cf., Briginshaw v Briginshaw (1938) 60 CLR 336, 361.
In light of the above, there was no error in the Tribunal’s refusal to make the declaration sought. Ground 7 must be rejected.
G Conclusion
Leave to appeal will be refused in respect of grounds 2, 4, 5 and 6.[190]
[190]Cf., Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331.
Leave to appeal will be granted in respect of grounds 1, 3 and 7. However, for the reasons outlined, the appeal will be dismissed.
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