Jones v 2Scale Design Pty Ltd
[2017] VSC 253
•8 May 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2017 00395
| DAMIAN LAURENCE JONES | Applicant |
| v | |
| 2SCALE DESIGN PTY LTD | First Respondent |
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JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 May 2017 |
DATE OF REASONS: | 8 May 2017 |
CASE MAY BE CITED AS: | Jones v 2Scale Design Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2017] VSC 253 |
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PLANNING & ENVIRONMENT — Application for leave to appeal from the Victorian Civil and Administrative Tribunal under s 148 of the Victorian Civil and Administrative Tribunal — Whether the Tribunal’s decision was unreasonable in the Wednesbury
sense — Whether the Tribunal relied on a fact or matter about which no evidence was tendered — Whether the Tribunal misconstrued Stonnington Planning Scheme cl 55.03-1 Standard B6 — Leave to appeal refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr M Barrett | Dunemann Sutherland |
| For the First Respondent | Mr R Appudurai | Russell Kennedy |
HER HONOUR (Ex tempore):
In this proceeding, the applicant seeks leave to appeal against the order of the Victorian Civil and Administrative Tribunal made on 12 January 2017 in which the Tribunal –
(a)set aside the decision of the Stonnington City Council to refuse to grant a permit for the proposed development; and
(b)directed that a permit issue for the proposed development in accordance with endorsed plans and conditions allowing:
(i)partial demolition of two existing dwellings under Heritage Overlay HO530;
(ii)the extension of two dwellings on a lot less than 300 square metres in a Neighbourhood Residential Zone and subject to a heritage overlay; and
(iii)a reduction to zero of the number of car parking spaces required under cl 52.06 of the Stonnington Planning Scheme.
In his amended notice of appeal filed on 4 May 2017, the applicant raised eight proposed grounds of appeal. However, in the course of argument, these were reduced to three proposed grounds of appeal:
(1)That the Tribunal’s decision to grant a permit was unreasonable (in the Wednesbury[1] sense) having regard to the extent of non-compliance of the proposed development with numerous planning scheme requirements and heritage guidelines, including:
[1][1948] 1 KB 223.
(i)the requirement in Standard B8 for a maximum 60% site coverage;
(ii)the requirement in the ‘Heritage Guidelines; City of Stonnington 2002’, that ‘In general two storey additions to residential buildings will require the new works are set back eight to ten metres or more behind the principal façade’;
(iii)the requirements in Standard B17 in cl 55.04 of the Planning Scheme that the north wall of the development be set back 2.59 metres, the south wall be set back 1.81 metres and the rear terrace be set back 1.42 metres;
(vi)the requirement in Standard B19 that opposite the south facing wall of the neighbouring property there be a set back of 3.25 metres;
(vii)the requirement in Standard B21 relating to overshadowing of the property on the other side of the proposed development;
(viii)the requirement for four car parking spaces in cl 52.06; and
(ix)the circumstances set out in s 3.1 of the Heritage Guidelines in which partial demolition or removal of any part of a property may be approved.
(2)That the Tribunal erred in its conclusion about the impact to traffic and parking when no expert advice was tendered at the hearing, and, in particular, there was no Car Parking Demand Assessment as required by and in accordance with cl 52.06-6 of the Planning Scheme.
(3)That the Tribunal misconstrued Standard B6 in cl 55.03 when it held that it was unnecessary to require compliance with Standard B6 in circumstances where the existing two dwellings are located prominently on the street frontage.
The principles to be applied in considering an application for leave to appeal against a decision of the Tribunal were established in Secretary to theDepartment of Premier and Cabinet v Hulls [1999] 3 VR 331. A pivotal requirement is that an applicant must identify a question of law for which there is a real or significant argument to be put that error exists. The applicant must show that the decision is attended by sufficient doubt to justify the grant of leave. The Court will also have regard to the justice of the particular case and whether the applicant has identified a question of law that is of general or public importance.
In this case, I have decided that leave to appeal should be refused because the applicant has not identified a question of law for which there is a real or significant argument to be put that error exists.
I will explain briefly why this is so.
The unreasonableness ground
It was argued, in substance, that the decision of the Tribunal was attended by Wednesbury unreasonableness because of the accumulation of departures from planning scheme standards and the requirements of the 2002 Heritage Guidelines.[2] The Court was taken by the applicant to a passage from a judgment of the High Court of Australia in Minister for Immigration and Citizenship v Li,[3] in which the plurality stated that unreasonableness should not be considered to be limited to what is in effect an irrational, if not bizarre, decision. An inference of unreasonableness may, in some cases, be objectively drawn even where a particular error of reasoning cannot be identified.
[2]Heritage Guidelines City of Stonnington 2002.
[3][2013] HCA 18.
According to the applicant, the fact that the Tribunal may have produced reasons for decision that are conventional in form and refer to relevant matters is not decisive. The Tribunal’s decision was removed from the field of reasonableness by the cumulative effect of the departures from the standards and guidelines that were permitted. As I understand it, this accumulation of departures is said to have produced a decision that, to use the words of the plurality in Li, lacks ‘an evident and intelligible justification’.
I do not accept this submission. Departures from the standards to which the applicant referred were discussed and justified in the Tribunal’s reasons. The Tribunal considered the setback requirements in issue and their variation, and made a decision to vary them having regard, among other things, to the impacts on surrounding properties. On no view could it be said that these decisions lack evident or intelligible justification. The same applies to the site coverage requirement, the overshadowing control and the car parking requirement.
Clause 55 provides for objectives and standards. An objective describes the desired outcome to be achieved and a standard contains the requirements to meet that objective. A development must meet all the objectives of the clause and should meet all the standards of the clause. The standards are not mandatory: while a standard should normally be met, if the responsible authority is satisfied that an application for an alternative design solution meets the objective, the alternative design solution may be considered.
That is what happened here.
As for the 2002 Heritage Guidelines, they simply do not have the legal effect contended for by the applicant. The 2002 Heritage Guidelines find their place in the Planning Scheme as a reference document. Clause 21.09 makes clear that reference documents, including the 2002 Heritage Guidelines, are to be used for background research, that they potentially provide guidance on decision-making but have only a limited role in that decision-making. The relevant heritage control is the heritage overlay itself.
The Tribunal’s reasons identify the nature of the proposed development, set out the applicable zoning, overlay and policy provisions of the Planning Scheme and the relevant permit triggers under the Scheme which it was required to consider. The Reasons show how those matters were considered and why the decision was made to grant the permit. It cannot be said that Tribunal’s the decision or any part of it lacked ‘an evident and intelligible justification’.
Therefore, I am not persuaded that there is a real or significant argument to be made that the Tribunal’s decision was unreasonable in the Wednesbury sense as contended for by the applicant.
Car parking requirements
The second proposed ground concerns the Tribunal’s consideration of the car parking requirements in the absence of a document entitled ‘Car Parking Demand Assessment’, as was required by the Planning Scheme.
The Tribunal had before it the Council officer’s report which dealt with car parking and traffic largely in the terms required by cl 52.06 of the Planning Scheme. It was necessarily brief, given the nature of the proposed development and the fact that there would be no change to the use of the buildings, the absence of car parking in the existing dwellings and the expectation that the proposed extension would result in little difference compared with the existing conditions. However, it contained a brief description and analysis of the variation of car parking demand likely to be generated as well as the availability of public transport in the locality.
That information and analysis meant that it was open, in my view, for the Tribunal to find as it did in relation to the car parking requirements.
I am not persuaded that there is a real or significant argument to be made that the Tribunal erred in waiving the car parking requirements in the absence of a formal Car Parking Demand Assessment. Moreover, even the Tribunal erred in permitting a waiver of car parking requirements in the absence of a formal Car Parking Demand Assessment, it would be such a minor error in the circumstances that it would not be a vitiating error.
Standard B6
The applicant submits that the Tribunal erred in law in misconstruing Standard B6 by holding that it was inapplicable to the new upper level of the proposed development.
The Tribunal held that the upper level of the development did not need to comply with Standard B6. This was in contrast to the Council, which recommended compliance with Standard B6 with respect to the upper level.
The Tribunal gave a cogent reason for rejecting a proposed setback of the upper level of either 3.5 metres – as the Council had recommended based on Standard B6 – or the 8 metre setback provided for in the 2002 Heritage Guidelines. It found that the new upper level would be visible but concluded that, given the retention of the significant front façade and at least half of the side brick walls, the proposed upper level, whilst remaining visible, would not be a dominant visual element. As a result, the Tribunal did not require compliance with Standard B6.
It was open to the Tribunal to so hold. No legal error has been demonstrated.
Again, I am not persuaded that there is a real or significant argument to be made that the Tribunal misconstrued Standard B6.
Conclusion
I am not satisfied that the Tribunal’s decision is attended by sufficient doubt to justify the grant of leave. There is nothing else in the circumstances of this case militating in favour of the grant of leave.
Leave to appeal is refused.
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