Hunnam v Evans
[2003] VSC 284
•6 August 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
No. 5560 of 2003
| NORMA CONSTANCE HUNNAM | Plaintiff |
| v | |
| PETER EVANS | First Defendant |
| ELOISE CASAMENTO | Second Defendant |
| GLEN EIRA CITY COUNCIL | Third Defendant |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 July 2003 | |
DATE OF JUDGMENT: | 6 August 2003 | |
CASE MAY BE CITED AS: | Hunnam v Evans | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 284 | |
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APPEAL FROM TRIBUNAL – Appeal against an order of the Victorian Civil and Administrative Tribunal (“VCAT”) under s.148 of the Victorian Civil and Administrative Tribunal Act 1998 – grant of permit for additions to existing building and its use for the purpose of an aged care facility – property subject to the Glen Eira Planning Scheme (“the planning scheme”) and Amendment C25 (“the amendment”) to the planning scheme – limited reference made to the planning scheme and amendment in its reasons for decision - whether the nature of the decision of VCAT suggested some error which might have been due to it not giving proper consideration to the provisions of the planning scheme and the amendment – no vitiating error of law - appeal dismissed.
Planning and Environment Act 1987 – Part 1A
Victorian Civil and Administrative Tribunal Act 1998 – ss.117, 148
Albury-Wodonga Development Corporation v Fitzpatrick [1982] VR 165
Ansett Transport Industries Pty Ltd v Wraith (1983) 48 ALR 500
Austcom Pty Ltd v Buckerfield Pty Ltd [1999] VSC 23
Berbers v Transport Accident Commission [2002] VSC 211
Body Corporate Strata Plan No 4166 v Stirling Properties Ltd (No 2) [1984] VR 903
Fletcher Construction Australia Ltd v Lines MacFarlane Marshall Pty Ltd (2001) VSCA 167
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
Life Assurance Society Limited [1976] VR 592
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works & Ors (1980) 44 LGRA 65
National Trust of Australia (Victoria) v Australian Temperance and General Mutual
Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6
Re Poyser and Mills’ Arbitration [1964] 2 QB 467
Shalit and Faine v Jackson Clement Burrows [2002] VSC 528
Spurling v Development Underwriting (Vic) Pty Ltd (1973) VR 1
Yendall v Smith Mitchell and Co Ltd [1953] VLR 369
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr CW Porter | Andrew T Fraser & Associates |
| For the Third Defendant | Mr G Peake | Lewis Holdway |
HER HONOUR:
Introduction
This is an appeal under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) against an order made by the Victorian Civil and Administrative Tribunal, constituted by Mr Marsden, Senior Member, and Mr Hewet, Member, (“the Tribunal”) on 3 April 2003, in its Planning List. Leave to appeal was granted by this Court on 30 May 2003, pursuant to section 148 of the VCAT Act.
By the order under appeal the Tribunal set aside the decision of the third defendant (“the Council”) as responsible authority and granted a permit for additions to the existing building situated at 1019 Glenhuntly Road Caulfield (“the subject property”) and its use for the purpose of an aged care facility accommodating not more than 30 residents, in accordance with certain defined plans and subject to a number of specified conditions.
There was no appearance for the second defendant or for the Council. By letter dated 28 May 2003, the solicitors for the Council advised the Court that their client did not intend to participate in the matter unless directed to do so by the Court, but requested a right to make submissions should any party seek an order for costs against it.
The subject property is occupied by a building which has been operating for a number of years as a single storey aged care facility, on the basis of two people occupying each room. The State Government now requires that each resident shall have a single room of a prescribed size, and consequently it has become necessary for the number of rooms in the building to be increased, if the same number of residents is to be accommodated. It is therefore proposed to add thirteen rooms on a new first floor, with balconies at each end of that floor. The plaintiff’s residential property abuts the subject property on the east. The issues argued before the Tribunal related to streetscape and neighbourhood character and amenity impacts on neighbouring properties.
The subject property is subject to the Glen Eira Planning Scheme (“the planning scheme”). Amendment C25 to the planning scheme (“the amendment”) is in the course of preparation.
The grounds appearing in the Notice of Appeal read as follows:
1.The Tribunal failed to give proper or adequate reasons for its findings that:
(a)the proposal complies with the 'policy thrust' of Amendment C25 (page 11);
(b)in terms of both existing and proposed policy, the proposal gains 'abundant support' (page 11);
(c)the extension will have no impact whatsoever on neighbourhood character (page 12);
(d)neither of the objectors will suffer loss of amenity from this extension (page 13).
2.On the evidence, the Tribunal could not reasonably have made any of the findings referred to in Ground 1.
3.The Tribunal failed to identify or select any of the provisions of the planning scheme, or any of the provisions of Amendment C25, which were relevant and necessary to consider and take into account, in the proper exercise of its discretion for the purpose of making its decision.
4.The Tribunal wrongly limited its consideration of the planning scheme, to provisions of a general nature, and of relatively little weight or consequence with regard to the specific issues of degree and impression, raised by the proposal, namely:
a.the general information relating to the 'profile of the population of Glen Eira' contained in the Municipal Strategic Statement;
b.the general provisions encouraging medium density housing in areas abutting tram lines.
5.The Tribunal wrongly limited its consideration of the planning scheme to the 'Overview' and one (only) of the provisions relating to 'Properties directly abutting tram routes in residential areas of neighbourhood centres' (underlining added), namely the Performance Measure, at page 31 of 35.
6.The Tribunal failed to appreciate or take into account the fact that Amendment C25 is an attempt on the part of the Council to strengthen the existing restrictions in the planning scheme, relating to the location and building design quality standards of multi-unit development, by imposing more specific limitations and restrictions.
7.The Tribunal wrongly identified, selected, considered, and applied the provisions of Amendment C25:
a.without proper or sufficient analysis and assessment of the manner in which they were intended to be considered and applied, as demonstrated by their context;
b.without giving any consideration or weight to any other provisions of the planning scheme.
8.The Tribunal wrongly gave undue weight to:
athe statement in Lineus May Nominees Pty Ltd v Stonnington CC 22 AATR 248, that it is important that the elderly should be located in the same area in which they have spent much of their lives (page 14);
bstatistical evidence that there is a shortage of 'this form of accommodation' in the Glen Eira area (page 14);
c.the needs and desires of 'elderly residents who will occupy the subject premises' (page 13).
9.The Tribunal failed or refused to take into account the 'internal amenity' level of the proposed extension, for future residents (page 14).
10.The Tribunal failed to consider or take into account the provisions of clause 21.05-1 of the planning scheme relating to 'Residential Urban Character' and in particular that:
a.the City of Glen Eira is committed to insisting upon development outcomes which contribute positively to local neighbourhood character while minimising detrimental impact on neighbouring properties;
b.the MSS strategies need to ensure that residential development is consistent with maintaining the character and amenity of Glen Eira's residential areas by protecting and enhancing existing urban and neighbourhood character.
11.The Tribunal failed to consider or take into account the provisions of clause 21.05-2 of the planning scheme relating to 'Residential Urban Character' and in particular that:
a.objectives are:
i.to maintain and enhance Glen Eira's high quality residential amenity;
ii.to protect maintain and enhance valued urban character and the environment;
b.strategies are:
i.to encourage more site responsive design that enhances the streetscape and neighbourhood and provides a quality living environment for future occupants;
ii.to promote education of good design principles and encourage well-designed development;
iii.to encourage the retention of existing buildings which can be re-cycled and which contribute to the character of the surrounding area;
iv.to encourage the retention of existing vegetation;
c.policies for implementation are:
i.to ensure that all alterations, additions and new buildings enhance the character of the street and surrounding area;
ii.to ensure that new developments provide valued vegetation and street trees;
iii.to ensure that new development has regard to existing site conditions and provides a site responsive design;
iv.to ensure that frontage set backs and private opens space in medium developments are of sufficient width to allow the growth of trees with spreading canopies to replace existing mature trees/vegetation which may have been removed.
12.The Tribunal failed to consider or take into account the provisions of clause 55.02-1 relating to neighbourhood character objectives, and in particular:
a.The objectives:
i.to ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character;
ii.to ensure that the development responds to the features of the site and the surrounding area;
iii.Standard B1. which requires:
1.that the design must (underlining added) be appropriate to the neighbourhood and the site;
2.that the proposed design must (underlining added) respect the existing or preferred neighbourhood character and respond to the features of the site;
3.consideration to be given to specified design objectives.
13.The Tribunal failed to consider or take into account the provisions of clause 55.03-3 relating to site coverage, and in particular:
a.the objective to ensure that the site coverage respects the existing or preferred neighbourhood character and responds to the features of the site;
b.Standard B8. which requires the site coverage not to exceed 60 per cent or (under Amendment C25), 45 per cent.
14.The Tribunal failed to consider or take into account the provisions of clause 55.03-11 relating to car parking requirements, and in particular, the objective to ensure that car parking for residents and visitors is appropriate to the needs of residents.
15The Tribunal failed to consider or take into account the provisions of clause 55.05-4 relating to private open space, and in particular, the decision guidelines referred to therein.
16.The Tribunal failed to consider or take into account the provisions of clause 55.05-1 relating to accessibility, and in particular:
a.The objective to encourage the consideration of the needs of people with limited mobility, in the design of developments;
b.Standard B25.
17.The Tribunal failed to consider or take into account the provisions of clause 55.06-1, and in particular, the objective to encourage design detail that respects the existing or preferred neighbourhood character.
18.On the evidence, the Tribunal could not reasonably have concluded that the proposal satisfied the requirements of the planning scheme and/or Amendment C25 to the extent necessary to warrant the grant of the permit sought.
19. The Tribunal failed to consider or take into account:
a.the Municipal Strategic Statement;
b.the Housing and Residential Development Strategy;
c.the Housing Diversity Policy;
d.Amendment C25, and in particular:
i.Clause 21.03 (Vision – Strategic Framework);
ii.Clause 21.03-5 (the Framework Plan);
iii.Clause 21.04 (Housing and Residential Development);
iv.Clause 21.04-1 (Overview);
v.Clause 22.05 (Housing Diversity Policy);
vi.Clause 22.05-1 (Policy Basis);
vii.Clause 22.05-2 (Objectives);
viii.Map 4, the Framework Plan, Page 10 of 35;
ix.Provisions relating to Housing Diversity Areas, page 29 of 35;
x.Clause 22.06 (Residential Character Policy);
xi.Clause 22.06-1, and in particular the provisions relating to:
1. site coverage;
2. side and rear set backs;
3. private open space;
4. two storey buildings;
5. building bulk and scale;
6. preferred neighbourhood character.
Ground 2 was expressly abandoned at the hearing, and I did not understand Mr Porter, for the appellant, to make any submission bearing on ground 18. Accordingly it is not necessary to consider either of those grounds.
In a number of well-known decisions, courts have made clear the limitations on their power to set aside decisions of administrative tribunals. In Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works [1] Smith J, with whom Adam J concurred, expressed in the following terms the circumstances in which error by the Town Planning Appeals Tribunal (a forerunner of the Tribunal) might lead to an order nisi for review being made absolute:
. . .the appellant, in order to succeed in this case, has to demonstrate to the satisfaction of this Court that the Town Planning Appeals Tribunal went wrong in law in arriving at its decision. It would not be enough for the appellant to show that the Tribunal’s reasons for its decision are so expressed as to suggest the possibility that the Tribunal proceeded upon a wrong view of the law. This Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.
[1](1971) 38 LGRA 6 at 18
Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[2]:
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion and a decision made within those boundaries cannot be impugned.
[2](1986) 162 CLR 24 at 40-41
In Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works & Ors [3], Fullagar J, after referring to Kentucky Fried Chicken (cited at [11] below) and other authorities, said:
. . . the cases show, as one would expect, that decisions of [the Town Planning Appeals Tribunal] are not to be set aside by over-legalistic analyses of reasons stated or by over-zealous drawing of inferences from things not stated.
[3](1980) 44 LGRA 65 at 67
In Spurling v Development Underwriting (Vic.) Pty. Ltd.[4] Stephen J said:
In approaching the decision of an expert tribunal I must, I think, not only refrain from making up my own mind on the evidence before it, must not only confine myself to inquiring whether on any reasonable view of the evidence the [Town Planning Appeals] Tribunal’s decision on a question of fact can be supported, but must also bear in mind that I am concerned with areas in which members of the Tribunal have special expertise and experience which the legislation plainly intends them to employ. I must therefore, be slow to conclude that on no reasonable view could this Tribunal decide a particular matter of fact as it has.
[4](1973) VR 1 at 11
However, it is not in issue that failure by an administrative tribunal to consider relevant matters can constitute a vitiating error of law. Whether such a vitiating error has occurred will always turn on the circumstances of the particular case, including the legislative requirements imposed on the tribunal in question. In Kentucky Fried ChickenPty Ltd v Gantidis[5] Barwick CJ said:
Of course, if it is shown that a Tribunal such as the present, in making an order within its competence, has failed to take into account relevant matters, its determination can be reviewed, as in this case, upon an order to review. So much is a settled facet of the relevant jurisprudence. But that course cannot be taken unless it clearly appears that there has been a material error of that kind. Whether or not it has occurred is a matter of fact and not of surmise. Failure in expressing reasons for decision is a very unsure guide to the resolution of such a fact, though in some cases it may be indicative. But in any case, such a failure to advert to some material circumstance, if it exists, must be weighed in the light of all the circumstances of the proceedings including the nature and extent of the charter of the Tribunal.
[5](1979) 140 CLR 675 at 679-680
The only legislative provision relating to the obligation of the Tribunal to give reasons for its decisions is section 117 of the VCAT Act, which reads as follows, so far as here relevant:
117.Reasons for final orders
(1)The Tribunal must give reasons for any order it makes in a proceeding, other than an interim order, within -
(a)60 days after making the order; or
(b)such other period as is specified by the rules or the President.
.. .
(5)If the Tribunal gives written reasons, it must include in those reasons its findings on material questions of fact.
(6)The reasons for an order, whether oral or written, form part of the order.
Mr Porter expressly stated that it was not contended that the Tribunal’s reasons were so inadequate as to justify a finding that it had not complied with section 117(1). He summarised the grounds of appeal as contending that, in deciding the issue before it, the Tribunal failed to give proper consideration to, or to take into account, the provisions of the planning scheme and the amendment.
The Tribunal’s reasons
The Tribunal’s reasons for its decision (“the reasons”) occupy five pages [6] . They contain several references to the provisions of the amendment, but no reference at all to any provision of the planning scheme, save the Municipal Strategic Statement, which is referred to simply as “the MSS”, without explanation [7] . The question is, whether that very limited reference in the reasons to the provisions of the planning scheme and the amendment indicates a failure by the Tribunal to give consideration to the applicability of those provisions to the question before it. In Body Corporate Strata Plan No 4166 v Stirling Properties Ltd (No 2)[8] Ormiston J expressed the view that caution must be exercised in reaching such a conclusion. His Honour continued, in a passage to which I have added emphasis:
[6]pages 10-15 of the order
[7]This is inappropriate. The use of technical abbreviations does not assist the reader unfamiliar with the jurisdiction, and creates a barrier between that reader and the Tribunal. See the passage cited at [18] below.
[8][1984] VR 903 at 914
The proper test was stated by Sholl J in Yendall v Smith Mitchell and Co Ltd [1953] VLR 369, at p. 379 as adopted by Adam J in McConkey v McConkey [1960] VR 295, at p. 300 in the following terms:
“The true principle must be not that everything relevant which a magistrate does not refer to is to be taken to have been overlooked, or on the other hand, that it is to be taken to have been considered, but that, if something which should have been considered is not referred to, and the nature of the decision suggests some error, which may have been due to that matter not having been considered as it should have been, the appellate tribunal may properly draw that inference, and the magistrate will have no cause to complain if it does so.
"I think that that passage might be expanded so as to cover one additional matter, by including in it after the words 'as it should have been' this passage: 'or if the magistrate's observations indicate, on a comparison of what he said with what he did not say, that the matter in question has been considered as it should have been'."
This passage was cited with approval by Gowans J in [Wattle Glen Estates Pty Ltd v Melbourne & Metropolitan Board of Works (1974) 40 LGRA 104] at p. 110; by McGarvie J in Gantidis v City of Williamstown (1978) 40 LGRA 115, at p. 123, and by Fullagar J in Michaelis Bayley (Vic) Pty Ltd v Melbourne and Metropolitan Board of Works (1980) 44 LGRA 65, at p. 67. See also Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 at pp. 679-80; 24 ALR 161, at pp. 164-5, per Barwick CJ.
The critical question is how one can ascertain whether relevant matters have or have not been considered in cases where reasons have been given but do not touch upon one or more issues. As Fullagar J rightly stated, decisions of tribunals are "not to be set aside by over-legalistic analysis of reasons stated or by over-zealous drawing of inferences from things not stated": Michaelis Bayley (Vic), at p. 67.
On the other hand, Stephen J, with whom Gibbs, Mason and Aickin JJ concurred, expressed the following opinion in a case where the Tribunal had not been requested to give reasons in Kentucky Fried Chicken Pty Ltd v Gantidis (140 CLR) at p. 682; (24 ALR) pp. 166-7:
"Where appellate administrative tribunals are required by statute to include in their decisions a statement of their reasons for arriving at them there will be little difficulty in assigning some significance to silence; it will at least reveal a failure to comply with the requirement of the statute and may go so far as to impugn the decision itself, particularly where some statement of reasons does appear but omitted from it are considerations relevant to the determination of the matter in issue."
There is considerable authority as to the content of the reasons which must be supplied by an administrative tribunal in response to a statutory requirement to give reasons for its decisions, and much of what has been said or written about the content of judicial reasons for decision is equally applicable to such tribunals. A few examples will suffice.
In Stirling Properties Ormiston J [9] cited the statement of Megaw J in Re Poyser and Mills' Arbitration[10] :
Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised.
Intelligibility requires a reference to the legal principles or provisions (here the provisions of the planning scheme) upon which the decision is based.
[9]at 911
[10][1964] 2 QB 467, at 478; [1963] 1 All ER 612, at 616
In a passage in a conference paper to which I have added emphasis, Sir Frank Kitto [11] has said:
The cardinal point about the delivery of judgments stands out, I think, in a passage you find in the 1832 Report of the Commissioners on Ecclesiastical Courts which Lord Shaw of Dunfermline quoted in Scott v Scott [[1913] AC 417 at 473]:
The judgment of the Court is then pronounced upon the law and facts of the case, and in discharging this very responsible duty, the judge publicly, in open court, assigns the reasons for his decisions, stating the principles and authorities on which he decides the matters of law, and reciting or adverting to the various parts of the evidence from which he deduces his conclusions of fact; and thus the matter in controversy between the parties becomes adjudged.
. . . The process of reasoning which has decided the case must itself be exposed to the light of day, so that all concerned may understand what principles and practice of law and logic are guiding the courts, and so that full publicity may be achieved which provides, on the one hand, a powerful protection against any tendency to judicial autocracy and against any erroneous suspicion of judicial wrongdoing and, on the other hand, an effective stimulant to judicial high performance.
[11]Why Write Judgments? originally presented in 1973, but reprinted in (1992) 66 ALJ 787
In Fletcher Construction Australia Ltd v Lines MacFarlane Marshall Pty Ltd[12] Chernov JA (with whom Charles and Vincent JJA concurred) said:
A litigant is entitled to a decision that is based on reasons that have led the judge to that conclusion.
[12][2001] VSCA 167 at [49]
In Berbers v Transport Accident Commission[13] Osborn J found that the following passage from the judgment of Woodward J in Ansett Transport Industries Pty Ltd v Wraith[14] to be equally apposite to section 117:
Section 13(1) of the [Administrative Decisions (Judicial Review) Act 1977] requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: ‘Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law which is worth challenging.’ This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute) and the reasoning processes which led him to those conclusions.
[13][2002] VSC 211
[14](1983) 48 ALR 500 at 507
Even leaving the amendment aside, there are a very large number of matters which the Planning & Environment Act 1987 (“the P & E Act”) and the planning scheme require to be taken into account in the consideration of an application for a planning permit. In Austcom Pty Ltd v Buckerfield Pty Ltd [1999] VSC 23 I said at [22] and [23]:
Section 27 of the [Planning Appeals Act 1980], clauses 302C and 343-3 of the planning scheme, clause 16-2 of the Metropolitan Regional Section of the planning scheme and section 60 of the [Planning and Environment Act 1987] are all expressed in mandatory terms. However, both counsel were in agreement that the [Administrative Appeals] Tribunal is not obliged to refer to and consider every one of these requirements. It was also agreed that as a matter of practice neither the Tribunal, nor its successor, the Victorian Civil and Administrative Tribunal (“VCAT”) did so. I note that while the two town planners whose reports were before the Tribunal, and the Council in its lengthy submission, referred to many of the relevant requirements, they did not refer to every one. The practice of not considering every one of the requirements would appear to be justifiable, if at all, only on pragmatic grounds, related to the resources, in the widest sense of that word, of the Tribunal (or now VCAT), of the parties to proceedings before those bodies, and of the advisers and witnesses on whom the parties rely.
However, I am not here concerned with the extent of the duty of the Tribunal under those various enactments, as to which I accordingly make no finding.
That passage related to a different planning scheme, under different legislation, from those with which I am here concerned. The planning schemes which have come into operation since that decision, pursuant to the Victoria Planning Provisions which now appear in Part 1A of the P & E Act, are generally more extensive and more detailed than their predecessors, requiring considerably more exercise of discretions, and the burden on all those people involved in their operation is accordingly far greater than before.
To a large extent it must inevitably be the responsibility of the Tribunal, in the exercise of the powers and discretions which are committed to it as an expert tribunal, in terms of the passage from Spurling cited in [10] above, to select among the requirements of the legislation and of the relevant planning scheme, those provisions which are relevant to each case before it. That responsibility is not entirely unfettered. For example, in Shalit and Faine v Jackson Clement Burrows[15] this Court, following the decision of the Full Court in National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Limited[16] , upheld a decision of the Tribunal to the effect that where the need for a permit is triggered by a planning scheme control imposed for a specific purpose, then it is inappropriate to seek to control any aspect of the development or use which is unrelated to the control itself. There are provisions in the planning scheme, consideration of which is expressed to be mandatory [17]. There are objectives, expressed, however, in discretionary terms, the achievement of which is said to be mandatory [18]. But generally, the selection of the relevant provisions is a matter for the Tribunal.
[15][2002] VSC 528
[16][1976] VR 592
[17]see for example clause 32.01-4 of the planning scheme
[18]see clause 55 of the planning scheme
Nevertheless, for the reasons set out in the passages cited in [16] to [19] above, it is important that the Tribunal specify those provisions of the Act and the planning scheme which it has found to be relevant to its decision. And there must be some explanation of the relevance of those provisions; a mere recital of section numbers from the Act and clause numbers from the planning scheme will not be adequate to meet the requirement in section 117 that the Tribunal give reasons for its decisions.
Further, a failure to refer to the relevant provisions can, as appears in the passage cited at [14] above from Stirling Properties, give rise to concern, as it has done in this case, as to whether the Tribunal has in fact failed to consider relevant matters, and whether that failure is such as to justify, in the light of the authorities, setting aside the decision of the Tribunal.
The issue
Having said all that, I now turn to consider, bearing in mind the authorities cited in [7] to [11] above, whether it can be inferred from the Tribunal’s reasons that it did not give proper consideration to the provisions of the planning scheme and the amendment.
Mr Peake submitted that the parties had been in broad agreement as to what were the relevant provisions, and had put them before the Tribunal, so that the Tribunal was well aware of what provisions were applicable to the issue before it, and accordingly did not need to set them out in its decision. However, while it is not in issue that the Tribunal was aware of the relevant provisions, and while that is a relevant consideration, it cannot be assumed from that awareness that the Tribunal necessarily took all relevant provisions into account.
Mr Peake also submitted that the Council planning officer’s report, which was before the Tribunal, and the evidence of Mr Verhoeven, a town planner who appeared before the Tribunal, did not specify all of the relevant provisions, and this was an indication that it was not necessary for the Tribunal to do so. However, the Tribunal, for the reasons set out in the materials cited in [16] to [20] above, is in a different position from the Council officers or a witness before it, and has different responsibilities.
As I have already said at [14] above, the essential question in this appeal is, whether the failure of the Tribunal to refer to the provisions of the planning scheme, save as to one passage from the Municipal Strategic Statement, or to refer to more than a few of the provisions of the amendment, indicates a failure by the Tribunal to give consideration to the applicability of the planning scheme and the amendment to the question before it.
As to the amendment, it was common ground that the amendment was at the relevant time and continues to be a “seriously entertained” planning proposal. In Albury-Wodonga Development Corporation v Fitzpatrick[19] King J followed several decisions of the Land and Valuation Court of New South Wales in finding that the fact that a planning proposal was seriously entertained was an important circumstance, but no more than one of the circumstances, to be taken into account in the consideration of an application for a planning permit. The extent to which that circumstance is to be taken into account, and the weight to be given it, would appear to me to be a matter for the discretion of the Tribunal, as an expert tribunal in terms of the passage cited at [10] above from Spurling, and I say no more about it.
[19][1982] VR 165 at 170-171
As to the provisions of the planning scheme, however, the test laid down by Sholl J in Yendall v Smith Mitchell, and approved in a number of decisions by judges of this Court [20] is that where something which should have been considered by the court or tribunal below is not referred to in its decision, and the nature of the decision suggests some error, which may have been due to that matter not having been considered by that body as it should have been, the appellate court may properly draw the inference that that matter was not considered.
[20]see [14] above
The question before me is thus whether the nature of the decision of the Tribunal suggests some error which may have been due to its not giving proper consideration to the provisions of the planning scheme and the amendment. Although Mr Porter referred to the extract from Yendall v Smith Mitchell cited in the judgment of Ormiston J in Stirling Properties, his submissions were not directed to this issue.
Mr Peake submitted that the Tribunal’s decision on the merits was hardly surprising, given that:
§the subject property was in a “housing diversity area” as defined in the planning scheme;
§the western boundary abutted a block of seven units;
§the northern boundary abutted a block of two storey flats;
§the proposal involved the continuation of a long-standing use; and
§all that was sought was a first floor extension to a height of six metres.
Mr Porter did not challenge that submission.
The merits of a decision of the Tribunal are not normally the concern of this Court. However, the Yendall v Smith Mitchell principle requires that for the purpose of consideration of the question before the Court, I must look at “the nature of the decision.” On the basis of the matters set out in the preceding paragraph, I find that despite the lack of reference to specific provisions of the planning scheme, the nature of the decision of the Tribunal does not suggest any relevant error in terms of the passage from Yendall v Smith Mitchell, from which the inference could be drawn that those provisions had not been considered as the planning scheme requires.
What I have said disposes of the specific grounds of appeal, (omitting grounds 2 and 18 for the reasons appearing in [6] above), to the extent that they are relevant to what I have found to be the essential question before me. I find no vitiating error of law in the decision of the Tribunal. The appeal will be dismissed. Counsel may wish to make submissions as to costs.
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