Natch v Keser

[2023] VSC 548

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2022 00404

MOHAN NATCH	First Appellant
MOHAN NATCH and KARAN NATCH (named as executors and trustees of the will of ANDAL NATCH, deceased, dated 26 March 2023 and who have been appointed as representatives of her estate for the purpose of this proceeding)	Second Appellants
v
ERIC CARL THOMAS KESER	First Respondent
(and others according to the Schedule attached)

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 March 2023
DATE OF JUDGMENT:	13 September 2023
CASE MAY BE CITED AS:	Natch v Keser
MEDIUM NEUTRAL CITATION:	[2023] VSC 548

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ADMINISTRATIVE LAW – Planning – Application for leave to appeal orders of Victorian Civil and Administrative Tribunal – Review of Council decision to amend planning permit to allow use of common property as a balcony and erection of a balustrade – Whether Tribunal denied natural justice in refusing the appellants leave to rely on submissions prepared after hearing completed – Refusal to refer legal issues for decision to Member who was an Australian Lawyer – Whether principles of estoppel and res judicata applicable -Application for leave to appeal refused – Planning and Environment Act 1987 ss 60, 87A; Victorian Civil and Administrative Tribunal Act 1998 ss 77, 97, 98, 107.

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APPEARANCES:	Counsel	Solicitors
For the First Appellant	Self-represented
For the Second Appellant, Mrs A Natch (since deceased)	Mr D L Epstein	Matthew Delahunty Lawyer
For the Respondents	No appearance

HIS HONOUR:

Background

1. The appellants seek leave to appeal on questions of law, orders of the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’), which directed the issue of an amendment to a planning permit. The amendment permitted the development of a balcony and the erection of a balustrade associated with apartment 302, part of a four-storey apartment building located at the north-east corner of Kooyong Road and Sebastapol Street, Caulfield North.[1]

   [1]The building included offices and a basement carpark.

1. The respondents, the Kesers, own and occupy apartment 302, which is located on the third floor. They wanted the planning permit amended to increase the balcony area associated with the apartment by 64m² to the eastern side of the balcony. Works would include the removal of part of the existing balustrade facing east to the north of the building, and construction of new balustrades to the north, east and south to enclose the new area.[2]

   [2]City of Glen Eira, Delegated Planning Forum Report – Amended Permits, 16 August 2020, CB Tab 7, page 85.

1. The first appellant, Mr Mohan Natch is the registered proprietor of 1 Sebastopol Street, Caulfield North and his mother, Mrs Andal Natch, the second appellant, was the registered proprietor of the neighbouring property to the east, 3 Sebastopol Street.[3] They objected to the Kesers’ application. After listing the proceeding for judgment, the Court was informed of the death of Mrs Natch. Mohan Natch and Karan Natch have been appointed to represent Mrs Natch’s estate for the purpose of this proceeding and substituted for her as second appellants.[4] However, I will continue to refer on many occasions to the appellants as the Natches to thereby refer to the parties as they were at the time this proceeding was heard.

   [3]Three other members of the Natch family were parties to the VCAT proceeding but were not appellants in this proceeding.

   [4]Under rr 9.09 and 16.03 of the Supreme Court (General Civil Procedure) Rules 2015 and see Bolitho v Banksia Securities Limited (No 15) [2020] VSC 725 [4].

1. The Natches contended that the VCAT decision and orders failed to have regard to the planning history of the site and were inconsistent with the basis on which the planning permit to build the apartment block was granted in 2017. VCAT had therefore failed to have regard to mandatory relevant considerations. They also relied on undertakings given by the developer to Mr Natch about the setback of the third floor, which was a significant design feature protecting their amenity. They also argued that VCAT erred in allowing the permit amendment despite the proposal failing to comply with cl 55 of the Glen Eira Planning Scheme (‘the Planning Scheme’). In addition, the Natches contended that VCAT had denied them natural justice by not accepting their written submissions filed after the conclusion of the hearing. They further argued that VCAT breached s 107 of the Victorian Civil and Administrative Tribunal Act 1998 by refusing their request to have questions of law decided by a judicial member or a member who was an Australian lawyer.

Representation of parties

1. Mr Natch, who had been an applicant in the VCAT proceeding, represented himself at the hearing of this proceeding. His mother, Mrs Natch, who had also been an applicant in the VCAT proceeding, was represented by counsel.

1. The respondents, members of the Keser family, informed the Court that they did not intend to participate in the proceeding. Mr Eric Keser, the first respondent, had presented their case to VCAT.

1. The Glen Eira City Council (‘Council’) who appeared by its senior urban planner at the Tribunal hearing as the responsible authority, was not named as a respondent to this proceeding. I considered that the Council was entitled to participate if it chose.[5] I therefore directed that the Council be notified and given the opportunity to participate in the proceeding before I delivered judgment, although I allowed the hearing to proceed in the interim. The Council subsequently informed the Court that it did not intend to appear.

   [5]Skabel Pty Ltd v Boorondara City Council [2020] VSC 532, [10]-[11].

1. In the result, there was no contradictor to the appellants’ case, although the transcript of the VCAT hearing and submissions made to VCAT by the appellants, Mr Keser and by the Council were before the Court.

The development of the apartment building

1. In 2016, the Council refused the developer, Stennson Pty Ltd’s (‘Stennson’), initial planning permit application.

1. On 31 March 2017, VCAT set aside the Council’s refusal on the basis of an amended plan submitted by the developer, which included a larger setback of 9.7m, adjacent to apartment 302, and other design limitations (‘the 2017 decision’). The Senior Member who made the decision considered that the design features of the proposed development were acceptable in their physical context. He also found that the proposal was acceptable in its impact on the amenity of the neighbouring dwellings. He referred to the design response, including a landscape setback and ground, first, second and third floor setbacks of 6.5m, 5m, 5m and 9.7m respectively.

1. In September 2017, Stennson applied to the Council to amend the planning permit issued as a result of the 2017 decision to reduce the number of apartments and increase the size of those remaining. This proposal would include the addition of another 37.5m² balcony to the south side for apartment 302, and another balcony to the south side for apartment 301. The appellants objected to this application. In January 2018, the Council issued an amended permit enabling these works.

1. The Natches applied to VCAT to review the Council’s decision. Negotiations between the developer and the Natches occurred to resolve the proceeding. Discussions involved the screening of apartment windows on the first and second floors and the apartment balconies on the third floor. The plans subject to these negotiations did not include an eastern balcony for apartment 302, only balconies servicing the apartments on the north and south side.[6]

   [6]Stephen Bitmead email dated 7 March 2018, CB 185; see also, Table at page 25 March 2018-April 2018.

1. On 7 March 2018, during these negotiations, Mr Natch exchanged a series of emails with the developer and its representative. In this proceeding, he relied in particular on an email from the developers’ representative stating:

The balcony at the third level to Sebastapol Street associated with Apartment 302 is setback 9.7 metres from your boundary, adjoins your open front yard and therefore is not required to be screened. The area marked ‘roof’ at the third level is non trafficable and therefore does not constitute a balcony and there is no balustrade.

1. In a subsequent email that day, Mr Natch requested that the east side balustrade be screened. The developer, while maintaining that it was not obliged to do so, agreed ‘in the spirit of agreement and your withdrawal of Objections’ to screen the eastern side of the balustrade.

1. On 5 April 2018, VCAT made orders giving effect to the agreement between the developer and Mr Natch which included conditions requiring a landscape plan and screening.[7]

   [7]Order of Acting Deputy President J Rickards, 5 April 2018, P250/2018.

The Kesers’ application

1. On 16 August 2020, Mr Keser, the first respondent, who had purchased apartment 302,[8] applied to the Council to amend the existing planning permit. The application sought permission to allow an extension to the north facing balcony over the existing common property roof of the apartment building and to erect a balustrade.[9] The owners corporation had given Mr Keser permission to use the common property. He wanted to remove part of the existing balustrade facing east and construct a new balustrade to the north, east and south around the perimeter of the new balcony area.[10] The balustrade contained frosted grey glass and powder coated aluminium fixtures.[11] The setback of the top floor would be reduced from 9.7m to 5.0m.[12]

   [8]It is unclear on the evidence whether Mr Keser had purchased the apartment on his own, or had been joint purchaser with the other respondents.

   [9]City of Glen Eira, Delegated Planning Forum Report – Amended Permits, 16 August 2020, CB Tab 7, page 85.

   [10]Natch v Glen Eira CC (No 2) [2022] VCAT 193, [3] (‘VCAT Reasons ’).

   [11]Ibid [24].

   [12]VCAT Reasons [11], [15].

1. Mr Natch objected, contending that the proposed balcony extension would seriously affect the appellants’ amenity, due to overlooking and the subsequent loss of privacy. He argued that the 2017 decision should not be disturbed.

The Council grants an amendment to the planning permit

1. On 10 November 2020, the Council granted an amendment to the permit and approved the balcony to the east of apartment 302. The Notice of Decision stated that the conditions were amended to show:[13]

   m) the heights and lengths of the balustrades dimensioned along the northern, eastern, and southern edges of the balcony of Apartment 302;

   n) Construction material/s to be used for the balustrades including level of permeability and details regarding angles of any shelving provided;

   Sectional diagrams of the northern, eastern and southern elevations showing that downward views the secluded private open space and habitable room windows of adjoining properties at 88 Kooyong Road and 1 Sebastapol Street are obscured to the satisfaction of the Responsible Authority.

   o) The balustrade on the eastern side of the balcony to be setback 500mm from the edge of the building.

   [13]Notice of Decision to Amend a Planning Permit, 10 November 2020.

   The Natches seek VCAT’s review of the Council’s decision

1. The Natches commenced a proceeding in VCAT to review the Council’s decision. In their statement of grounds they contended that the reduction in the third floor setback was contrary to the 2017 decision, which was predicated on a third floor setback of 9.7m.

Submissions of the Natches’ counsel at the VCAT hearing

1. The VCAT hearing occurred on 13 October 2021.[14]

   [14]Cathyrn Keser, Madison Keser and Alexander Keser were joined as joint parties to the proceeding by VCAT’s order of 14 October 2021.

1. The Natches engaged counsel for the VCAT hearing by direct brief. Their counsel submitted that the Kesers’ proposal would not sit comfortably with the existing built form because it would add visual bulk and would not be a ‘comfortable fit’ between the Commercial 1 Zone and the surrounding Neighbourhood Residential Zone. The Council had originally opposed the whole of the fourth storey because of visual bulk, the overlooking and overshadowing of the residential neighbourhood zone to the south and east.

1. Counsel referred to the site’s planning history and that the planning permit had been amended by consent after the developer’s agent made it clear in writing to Mr Natch in 2018 that the 9.7m setback at the top level would be retained and that the setback would be non-trafficable and did not constitute a balcony.[15] Counsel submitted that the proposed amendment ‘runs counter to the emphasis placed in the previous decision on the recession’[16] and that the presentation of the building to the street would be recessed.[17] The revised plan submitted to VCAT in 2016 reduced the number of third floor apartments from four to two and increased the building setbacks from the eastern boundary from 6.05m to 9.7m. No balconies to the east or south were provided on the third floor, the area instead being marked as ‘Roof’.

   [15]Transcript of Proceedings, Natch & Ors v Keser & Glen Eira City Council (Victorian Civil and Administrative Tribunal, P1986/2020, Member Wickramasinghe, 13 October 2021) 37 (‘VCAT Transcript’).

   [16]Ibid 38.

   [17]Ibid 38.

1. The Natches’ counsel contended that the proposal would have a significant impact on the amenity of their properties and would present an unacceptable visual bulk from their rear yards and from the street.[18] The Tribunal had to consider whether the proposal provided a net community benefit and an acceptable response to the visual bulk of the building to the sensitive eastern interface and to the street.[19]

   [18]Ibid.

   [19]Ibid.

The Council’s submissions to VCAT

1. The Council, represented by Mr S Taylor, Senior Urban Planner, informed VCAT that it considered that the proposal did not significantly alter the overall development. The majority of the apartment buildings remained the same and the building footprint would not be increased in size. The changes to the planning permit were minor in nature, allowing one apartment to have a larger balcony area. The building would still comply with State and Local Government policy, as well as cl 55 of the Planning Scheme. The proposal was unlikely to create additional impact on the amenity of the surrounding lots, including overshadowing, permeability or side and rear setbacks. The amended condition 1 was directed at managing overlooking through the design of the new balustrade.[20]

   [20]Ibid 28.

Mr Keser’s submissions to VCAT

1. Mr Keser contended that the proposed balcony was contained in the existing building footprint and made use of wasted common property, which the Kesers had been given permission to use.[21] The proposed balustrade would not add additional height to the appearance of the building.[22] The 2017 decision did not preclude future planning amendments and proposed amendments still had to be considered on their merits.[23] The 2017 decision had not required a 9.7m setback or that there be no balustrade.[24]

   [21]Ibid 56, lines 17-20.

   [22]Ibid 57, lines 30-31 and 58, lines 1-2.

   [23]Ibid 66.

   [24]Ibid 65-67.

VCAT orders provision of draft conditions and further submissions

1. On 14 October 2021, the Member, as he had foreshadowed at the conclusion of the previous day’s hearing, ordered that the Council provide VCAT and the parties with a revised set of draft permit conditions, incorporating all modifications since the Council’s Notice of Decision. These were to include a condition for the ‘landscape treatment’ along the eastern perimeter of the proposed boundary.[25] He also ordered the Council to provide written submissions addressing any setback that should be provided to the east elevation wall and proposed balustrade, taking into consideration cl 55.04-1 of the Planning Scheme. The applicants were given a week to provide submissions in reply to the information to be provided by the Council.

   [25]Order of Member Wickramasinghe dated 14 October 2023 (CB 201).

Council’s subsequent submissions

1. The Council contended that while balustrading was not specifically included in Standard B17 of cl 55.04-1 of the Planning Scheme, a balustrade structure was similar, or of a lesser scale to, the other structures that were specified in the Standard. It acknowledged that the subject land contained a robust mixed-use commercial/residential building and stated:[26]

The existing building has been deemed [an] acceptable by the Tribunal given its zoning and policy context. The proposed balustrade is suitably responsive in design and position to meet the objective of Clause 55.0-1 and does not ‘tip the balance’ of the built form of the land to an unacceptable outcome.

[26]Affidavit of Mohan Natch dated 17 February 2022, Exhibit MN-10 (Letter from Stuart Taylor, Senior Urban Town Planner dated 20 October 2021).

Mr Keser’s subsequent submissions

1. Mr Keser submitted that the respondents had provided evidence that the positioning and design response of the proposed balustrade met the objective of Standard B17 by respecting the neighbourhood character and limiting the impact on the amenity of the existing dwellings. He argued that no explicit evidence had been provided demonstrating that the developer had given assurances about setbacks. The Tribunal’s 2017 decision had made no finding about the eastern setback of apartment 302 and concerns about that issue had been resolved. The apartment building was located in a Commercial 1 Zone and such apartment developments were not expressly bound to be meet the requirements of cl 55 and Standard B17. The proposed setback caused no additional impact to the Natches, or to the street neighbourhood, with regard to visual bulk. The Council was only required to consider overlooking and overshadowing resulting from the building and it exceeded the relevant standards on those issues.

The Natches’ subsequent submissions

1. On 28 October 2021, VCAT received two sets of written submissions sent on behalf of the Natches. The first was by their counsel (‘the Natches counsel’s reply submissions’). The second was from the Natches (‘the Natches’ reply submissions’). Mr Keser sent submissions in reply to those submissions later that same day, and the Council sent short reply submissions on 4 November 2021. Mr Keser addressed the draft permit conditions in which he relied on cl 34.01-8 of the Planning Scheme, which stated that:

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

…

§The objectives, standards and decision guidelines of Clause 54 and Clause 55. This does not apply to an apartment development.

1. The Natches counsel’s reply submissions disagreed with Council’s contention that the location of the balustrade met the overall objective of cl 55.04-1 and submitted that the objective of the clause had not been satisfied. She submitted that the proposal did ‘tip the balance’ of the built form of the land to an unacceptable outcome.

1. The Natches’ reply submissions addressed the planning history of the site and contended that the Council was estopped from approving the permit amendment because of the 2017 decision, in which the Tribunal had observed that the top floor would be setback to the east by 9.7m. The appellants also relied on assurances given by the developer and its agent about the use of the roof area adjacent to apartment 302.

1. On 8 December 2021, Mr Natch and Mrs Natch sent VCAT a third set of submissions (‘the Natches’ further submissions’), which advanced submissions of estoppel, res judicata, merger and Wednesbury[27] unreasonableness. The following day, on 9 December, the applicants, presumably being all members of the Natch family who were applicants in the proceeding, sent VCAT a fourth and final set of submissions (‘the Natches’ support submissions’). Those submissions argued that the previous ‘Natches’ submissions’ did not contain new evidence and also made submissions about how the Tribunal could inform itself, and its obligations of natural justice. They requested that the Tribunal direct that the questions of law in the proceeding be decided by a Tribunal member who was an Australian lawyer.

   [27]Associated Provincial Picture Houses v Ltd v Wednesbury Corporation [1948] 1 KB 223 (‘Wednesbury’).

The Practice Day decision

1. A Practice Day hearing was held on 18 January 2022 to decide whether the Tribunal should accept the additional submissions. A Deputy President and the Member who had conducted the review hearing, presided on the day.

1. Counsel for the Natches requested that the Tribunal accept the further submissions that she had prepared. She also argued that the Natches’ reply submissions of 28 October and 8 December 2021 should be accepted and the other parties be given a chance to respond to them.

1. The Council’s representative stated that it was a matter for the Tribunal whether to accept the further submissions. Mr Keser described the Natches’ further submissions as containing information that was already known to the parties. The Natches had been given a fair hearing and ample time to make all necessary submissions. He requested the Tribunal to not accept the further submissions and argued that their acceptance would cause delay in the completion of the review.

1. The Tribunal decided to accept the submissions in reply prepared by the Natches’ counsel.[28] However, the Tribunal refused the Natches leave to rely on their reply submissions dated 28 October and their further submissions dated 8 December. The Tribunal did not refer to the Natches’ support submissions dated 9 December. It appears that they were not treated as a separate submission, but were to be governed by the Tribunal’s decision on whether to give the Natches leave to rely on their reply submissions and further submissions.

   [28]Natch v Glen Eira CC [2022] VCAT 66 (‘Practice Day Reasons’).

1. The Tribunal decided that fairness did not favour the receipt of the Natches’ supplementary submissions.[29] They could have presented the information and arguments contained in them during the hearing.[30] They had been represented by an experienced firm of town planners and, later at the hearing, by experienced counsel.[31] They had been afforded every opportunity to raise those substantive legal matters in a timely and fair manner, but had not.[32] It would be unfair to allow them to rely on the supplementary submissions.[33]

   [29]Ibid [21].

   [30]Ibid [16].

   [31]Ibid [17].

   [32]Ibid [18].

   [33]Ibid [18].

The Tribunal’s decision of the Natches’ review proceeding

1. After reserving his decision, the Member conducted an unaccompanied inspection of the two properties as he had informed the parties he would.

1. On 21 February 2022, the Member delivered his reasons and directed the grant of an amended permit to the Kesers. He varied the Council’s decision and directed the issue of an amended planning permit allowing the commencement of the development of the balcony associated with apartment 302. He ordered that there be a new condition 2 providing:

2. Before the commencement of the development of the balcony and balustrade associated with Apartment 302, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. The plans must be drawn to scale with dimensions and must generally accord with the plans dated 10 July 2020 but modified to show:

(a)    The heights and lengths of the balustrade dimensioned along the northern, eastern and southern edges of the balcony of Apartment 302.

(b)   Construction material/s to be used for the balustrades including

(c)level of permeability and details regarding angles of any shelving provided.

(d)Sectional diagrams of the northern, eastern and southern elevations showing that downward views the secluded private open space and habitable room windows of adjoining properties at 88 Kooyong Road and 1 Sebastopol Street are obscured to the satisfaction of the Responsible Authority.

(e)The balustrade on the eastern side of the balcony to be setback not less than 500mm from the outer edge of the building.

(f)Screen landscaping in planter boxes to be provided along the eastern boundary of level 3 adjacent to the outside edge of the eastern balustrade at a height to the satisfaction of the Responsible Authority.

The Member’s reasons

1. The Member noted that the Council’s Notice of Decision to amend the planning permit allowed an additional balcony area at the third level over the common property. The balcony was intended to be used by the occupants of apartment 302, which was the eastern-most apartment at that level, the uppermost level. The majority of the area of the additional balcony had been tiled and works completed including the removal and replacement of part of the existing balustrade facing east and construction of a new balustrade to the north, east and south around the perimeter of the new balcony area.[34] The new and replacement balustrade was to be approximately 1.25m high which was lower than the 1.45m of the existing balustrade with a horizontal outward projection of 0.475mm wide.[35] The tiled surface had an approximate area of 48.76m² and the total additional area of the new balcony was approximately 74.98m.²

   [34]VCAT Reasons [2]-[3].

   [35]Ibid [3].

1. The Member described the existing building as having a typical apartment building form, the structure located close to the site boundaries at ground level, with greater setbacks at the upper levels.[36] The proposed balcony and associated balustrade would have a 5.0m setback from the Sebastopol Street frontage and from the east boundary. The additional balustrade would be visible from the street and the surrounding properties, although the existing balustrade that was to be replaced was also visible.[37] The Member concluded that the proposed setback was sufficient to ensure that the balcony, when viewed from the street, was recessive to the lower levels of the existing building and was therefore an acceptable response.[38] The balustrade height reduction would help limit any visual impact of the proposed work on the streetscape. The Member noted that there was a low level 0.4m high parapet wall that projected above the balcony floor level and that, as the balustrade was located behind it, it would be partially obscured. The Member concluded that the proposed balcony and associated balustrade were an acceptable response to the existing building and neighbourhood character.[39]

   [36]Ibid [10].

   [37]Ibid [11].

   [38]Ibid [11]-[12], [14].

   [39]Ibid [14].

1. In addressing the impact of the proposal on the amenity of the Natches’ property, the Member was not persuaded that the proposed balcony and associated balustrade would ‘fill’ the existing setback, or that it would have a ‘great cost to their amenity’.[40] He noted that the proposed balcony was setback approximately 5.0m from the eastern boundary behind the east wall of level two below, whereas the third level was setback 9.7m from the eastern boundary.[41] He found that the built form would continue to be the dominant architectural form at that level and that the balustrade would blend into the backdrop provided by that level.

   [40]Ibid [19].

   [41]Ibid [15].

1. The Member found that while some views of the proposed balustrade would be available from the private open spaces of 1 and 3 Sebastopol Street, the approximate 0.85m of the balustrade above the existing parapet wall would have minimal visual impact.[42] He also noted that the balustrade’s form and materials, coupled with the additional 0.5m minimum setback required by the Council, would add articulation to the façade and be visibly different to the east and north walls of the building.[43]

   [42]Ibid [23].

   [43]Ibid [24].

1. The Member accepted that the proposed balustrade would project into the setbacks of the existing building from the east boundary and failed to satisfy the requirements of Standard B17 of cl 55.04-1.[44] However, he found that the proposed amendment would meet the objective of that clause. He was satisfied that the balustrade’s design would limit overlooking to the east and north as required by Standard B17.[45] Any additional shadow create by the proposed balustrade would be over the roof and front yard of the adjoining property to the east and the road reserve, where the majority of the shadow from the existing building already fell.[46]

   [44]Ibid [21].

   [45]Ibid [26].

   [46]Ibid [27].

1. In his inspection of the proposed location of the balustrade, the Member found that landscaping would provide a positive contribution and assist to further articulate the east elevation and the third level. Landscaping would screen the balustrade and soften the appearance of the east elevation when viewed from the neighbouring properties.[47]

   [47]Ibid [32].

1. The Member considered that the Kesers’ need for the additional balcony was not relevant. The relevant considerations were whether the proposed balcony respected the neighbourhood character and had acceptable off-site amenity aspects. The Member found that the proposed amendment satisfied those requirements.[48]

   [48]Ibid [40].

Questions of law

1. In their Further Amended Notice of Appeal, the Natches relied on seven questions of law.

1. The first category of questions, one and two, concern the Practice Day orders of 18 January 2022. Those questions are whether the Tribunal correctly applied ss 97 and 98 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’)and the principles of natural justice in refusing the Natches leave to file their submissions of 28 October and 8 December 2021.

1. The second category of questions, three, four and five, concern the Tribunal’s orders and reasons for decision dated 18 January 2022 and 21 February 2022: whether the Tribunal, having considered that the Tribunal may not have jurisdiction to consider matters of law raised by the Natches should have referred the proceeding to the Supreme Court for judicial determination of the issues; alternatively whether the Tribunal should have appointed a ‘legal member’ or a judicial member of the Tribunal to hear the proceeding; and, if so, whether the Natches were denied natural justice by the failure to do so.

1. The third category of questions, seven and eight, concern the Tribunal’s orders and reasons for decision dated 21 February 2022. They raised issues of whether the Tribunal properly took into account, or was required to take into account, the following matters pursuant to s 84B of the Planning and Environment Act 1987 (‘P&E Act’):

(a)        the Council’s refusal of the original planning permit application in 2016;

(b)       the original permit applicant’s amendment of the plans on 26 November 2016 to remove the subject balcony/balustrade from its permit application; and

(c)        the original permit applicant’s representations to the Natches that the area on which the balcony is now proposed would be non-trafficable roof space.

1. The fourth category of questions was contained in question eight being whether the Tribunal erred in law in finding that the objective of cl 55.04-1 of the Planning Scheme was satisfied or met.

Grounds of appeal

1. The Natches relied on ten proposed appeal grounds.

1. The first group of grounds raised natural justice and procedural fairness issues: grounds one, two, three, four, five, six, seven, and nine. They raised the following issues. That the Tribunal erred in law by finding that the Natches had not previously raised the legal matters contained in the Natches’ reply submissions and the Natches’ further submissions, of 28 October and 8 December 2021 respectively at any time before or at the hearing on 13 October 2021. That the Tribunal erred in law in determining at paragraph 17 of the reasons for decision dated 18 January 2022 that the Natches’ objections to Council and their application for review did not raise or refer to substantive legal matters. That the Tribunal erred in law in determining at paragraph 18 of those reasons for decision that the Natches’ conduct in raising substantive legal matters in their submissions after the 13 October 2021 hearing was prejudicial to Kesers and the Council and was contrary to ss 97 and 98(1)(d) of the VCAT Act. That in refusing the Natches leave to file the supplementary submissions, the Tribunal did not afford them procedural fairness. That in conducting a hearing on 13 October 2021 without a sitting qualified legal practitioner member, the Tribunal did not afford the Natches natural justice and procedural fairness despite the detailed submissions of 8 September 2021 having raised legal issues in the proceeding. That the Tribunal misapplied the rules of natural justice and procedural fairness by deciding at paragraph 21 of the reasons for decision dated 18 January 2022 that whilst it accepted that it would be fair to allow the Kesers and the Council to respond to the submissions, the Tribunal did not consider that this outweighed the prejudice to the Kesers by any further delay in any ultimate decision on the merits of the application, that they would suffer by the further delay in the Natches’ review application being decided on the merits. That in determining that the Natches should be refused leave to file the submissions on the basis that the Kesers would suffer a prejudice in a delay to the ultimate decision on the merits of the application, the Tribunal erred in law in its application of ss 97 and 98 of the VCAT Act. That the Tribunal denied the Natches natural justice by not referring the proceeding to a judicial member of the Tribunal, or if the legal issues raised before the Tribunal went beyond its jurisdiction, the Supreme Court of Victoria, to determine the legal issues raised by the Natches in their principal submissions dated 8 September 2021 and in their submissions of 28 October and 8 December 2021.

1. The second major appeal point was contained in ground 10, that the Tribunal erred in law by failing to take into account the following relevant considerations:

(a)        the Council’s refusal in 2016 of the planning permit application, which contained plans for a balcony and balustrade;

(b)       the original amended permit applicant’s amendment of the plans on 26 November 2016 to remove the subject balcony/balustrade from its permit application; and

(c)        representations from the developer to the Natches and to the Tribunal that the 9.7m setback was to be retained and the area marked ‘roof’ in which the balcony was proposed would be ‘non trafficable and therefore [did] not constitute a balcony and there [was] no balustrade’.

1. The final ground of appeal, ground 11, was that the Tribunal erred in law in holding that the objective of cl 55.04-01 of the Planning Scheme had been met in circumstances where it found that the proposed balustrade would project into the setbacks of the existing building from the east boundary.

The Natches’ submissions

1. At the hearing in this Court, the Natches placed most emphasis on two issues. The first, that the Tribunal denied them natural justice by refusing to allow them to rely on their additional written submissions which were sent after the hearing on 13 October 2021. The second was whether the Tribunal made a jurisdictional error by failing to take into account a relevant consideration being the planning history of the apartment building. I next summarise the Natches’ submissions in relation to these issues, noting that the submissions by counsel for Mrs Natch were particularly directed at the natural justice issues.

The disputed additional submissions – natural justice

1. The Natches sought to rely on three sets of written submissions prepared after the Tribunal’s order of 14 October 2021. They were:

(a)        the Natches’ reply submissions, dated 28 October 2021;

(b)       the Natches’ further submissions, dated 8 December 2021; and

(c)        the Natches’ support submissions, dated 9 December 2021.

I will refer to these submissions collectively as ‘the disputed submissions’.

1. As mentioned, VCAT accepted the written submissions that had been prepared by the Natches’ counsel and which were dated 6 September and 28 October 2021.

1. The Natches argued that they had been denied natural justice and procedural fairness by not being given a reasonable opportunity to make relevant submissions and they relied on ss 97 and 98 of the VCAT Act. They contended that the disputed submissions contained additional information about the planning history of the site and legal issues relevant to the submissions made by their counsel. They had been restricted in their ability to provide information to counsel during the hearing because it was a virtual hearing due to Covid restrictions. They argued that the Tribunal erred in finding that the disputed submissions contained fresh legal matters and that the Tribunal had ‘broad powers’ to grant them leave to rely on the additional submissions. Moreover, the Council did not oppose the Natches relying on the disputed submissions and had in fact made written submissions in reply to them.

Analysis – disputed submissions – natural justice

1. Under s 98 of the VCAT Act the Tribunal has broad powers over the procedures to be adopted when hearing proceedings, including as to how oral or written submissions are to be made. The Tribunal is bound by the rules of natural justice, but:

… must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of [the VCAT Act] and the enabling enactment and a proper consideration of the matters before it permit.[49]

[49]Victorian Civil and Administrative Tribunal Act 1998, s 98(1)(d).

1. The requirements of natural justice are only breached if the procedure adopted causes some practical injustice.[50] The procedure challenged must have been capable of having an impact on the outcome of the case in order that a breach of the rules of natural justice can be established. The Natches were legally represented at VCAT by experienced counsel. The Tribunal accepted counsel’s written submissions of 6 September and 28 October 2021 and thereby gave the Natches a reasonable opportunity to present their case. However, they sought to distinguish between the content of their counsel’s submissions and the additional information concerning the planning history of the site, which they said was contained in the disputed submissions. It is appropriate at this point to again refer to the Natches’ submissions made after the Tribunal’s order of 14 October 2021, including their counsel’s reply submissions.

   [50]Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1, 14.

The submissions – 28 October 2021

1. The Natches counsel’s reply submission on which the Tribunal gave them leave to reply contended that Standard B17 had not been met and that the objective of cl 55.04-1 had not been satisfied. They argued that the proposed permit amendment failed to meet the minimum standard and failed to respect the existing and preferred neighbourhood character. They contended that there was no reasonable basis to suggest that the proposal which in 2016 had presented an unacceptable outcome had changed, so that it had become acceptable in 2021.

1. The Natches’ reply submissions, also of 28 October 2021, contained a detailed history of the permit applications and the planning history of the site. They also referred to the developer’s written assurances given to Mr Natch regarding the setbacks. The Natches contended that they had relied on previous Council positions and planning permit positions concerning the site.

1. However, I am not convinced that this further detail of the planning history contained in the Natches’ reply submissions, coming after their counsel’s submissions of 6 September 2021 and 28 October 2021, was necessary to provide the Natches with natural justice and a reasonable opportunity to present their case. I am satisfied that the Natches counsel’s submissions adequately presented their case. Counsel’s submissions of 6 September 2021 under the subheading ‘Background’, contained a review of the planning permit applications and planning objections concerning the apartment site since 2016. The Senior Member’s 2017 decision was attached to the submissions.

Submissions at the Tribunal hearing

1. In addition, at the Tribunal hearing, the Natches’ counsel made submissions about the planning history of the site. They included:[51]

…it’s important for the Tribunal to understand what was important at the time of the original decision making and what remains, in my submission important…

The view taken by Council at the time of the original appeal to VCAT was that that upper level that is now the subject of the proposal before you, was not appropriate…

[51]VCAT Transcript.

1. The Natches’ counsel also stated:[52]

   [52]Ibid 37-8.

… following on the Tribunal’s original decision, there was a further amendment sought which was resolved by consent… and as part of the consent and matter upon which my clients relied in consenting to a position before the Tribunal…

…

…We say that the amendment runs counter to the emphasis placed in the previous decision on that recession…

1. In view of those submissions, I consider that the Tribunal provided the Natches with a reasonable opportunity to present their case. I am not persuaded that they were denied natural justice by the Tribunal refusing them leave to rely on their reply submissions of 28 October 2021.

Natches’ further submissions – 8 December 2021

1. The Natches’ further submissions in reply dated 8 December 2021 raised fresh legal arguments and relied on the doctrine of estoppel, res judicata, merger and on Wednesbury unreasonableness.

1. None of these submissions was permitted by the Tribunal’s order of 14 October 2021 and none of them had any basis in law. The doctrines of estoppel and res judicata do not apply to planning decisions by a Council or to their review by the Tribunal.[53] When a Tribunal has power to alter or rescind its own order, such an order will not constitute a final judgment or order for the purposes of creating a res judicata. Such an order may be amended following a subsequent application. As Garde J stated in Zumpano v Banyule City Council:[54]

Following El Alam v City of Northcote, there is no doubt that the doctrines of res judicata and issue estoppel as known to courts in civil proceedings do not apply to reviews in the Tribunal under Division 2 of Part 4 of the P & E Act.

[53]El Alam v City of Northcote [1996] 2 VR 672.

[54][2016] VSC 420 [16]-[18] (citations omitted) (‘Zumpano’).

1. The Natches’ Wednesbury unreasonableness submissions depended on the acceptance of their previous submissions about estoppel and res judicata. They contended:[55]

The council being a statutory authority resiling from its position in 2017 to the current position since it issued a NOD knowing very well it was estopped from changing its position, considering the council was or should have been aware of the operation of res judicata, Henderson Abuse, merger of judgement considering the background of the proceeding in PI633/2016 the council’s action are deemed to be considered – ‘Wednesbury unreasonableness.’

[55]Further Amended Submissions in Reply (‘Further supplementary submissions’), [39].

1. As the doctrines of res judicata and estoppel had no application, the Natches have not established that the Council had acted unreasonably in issuing a planning permit amendment.[56] In addition, this proceeding does not challenge Council’s decision as it was replaced by the Tribunal’s orders of 21 February 2022, which together with the Tribunal’s Practice Day orders, are the only orders challenged in this proceeding. The Council’s decision has not, and could not, be challenged in this proceeding.

   [56]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

1. In any event, I am not persuaded that the Council or the Tribunal acted unreasonably in the Wednesbury sense, but rather exercised a statutory discretion to determine an application based on the material before them. They took into account the matters required by s 60(1) of the P & E Act:

(1)   Before deciding on an application, the responsible authority must consider—

(a)        the relevant planning scheme; and

(b)       the objectives of planning in Victoria; and

(c)        all objections and other submissions which it has received and which have not been withdrawn; and

(d)       any decision and comments of a referral authority which it has received; and

(e)        any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development; and

(f)        any significant social effects and economic effects which the responsible authority considers the use or development may have

1. The Natches’ further submissions were akin to a research paper on administrative law, rather than a submission permitted by the Tribunal’s order. I am satisfied that it would not have aided their case. The submissions did not contain any relevant argument of legal merit. I am not persuaded that the Tribunal denied the Natches natural justice by refusing to accept these submissions.

1. The Natches also submitted that the Tribunal was obliged to take into account both the substance of the disputed submissions, and the reasons why they were provided late, in order to comply with the requirements of natural justice. The Tribunal was bound to consider whether the matters contained in the disputed submissions had been raised previously, at least in substance. They argued that Tribunal erred in finding that the disputed submissions contained fresh legal matters that had not been raised before and that led to it denying them natural justice.

1. In my opinion, the Tribunal did not err, as ground one contends, in finding that the Natches had not raised the legal matters contained in the submissions at any time before or at the hearing on 13 October 2021. Certainly, legal doctrines such as estoppel and res judicata had not been raised.

The Natches’ support submissions – 9 December 2021

1. The Natches’ support submission of 9 December 2021 contended that the Tribunal’s role was inquisitorial rather than adversarial and therefore the Tribunal member controlled the proceeding and was not restricted to the evidence presented by the parties. The Natches contended that their previous submission, presumably that of 8 December 2021, did not contain any new evidence. This submission was prepared because Mr Keser had opposed their reliance on the supplementary submissions of 28 October and 8 December. Mr Natch, referring to the support submission, said that the Tribunal never ‘even considered it as a submission’[57] and the Tribunal did not decide whether to accept it. It is noteworthy that the Natches accepted that ‘all the material referred [to] in the [Natches’ support submissions] was before the tribunal and the parties in the application and submissions filed earlier’.[58] In those circumstances, it is difficult to see how the Natches were denied natural justice by not being permitted to rely on the support submissions.

   [57]Transcript of Proceedings, Natch v Keser (Victorian Supreme Court, S ECI 2022 00404, Ginnane J, 9 March 2023), 34, lines 15-16 (‘Supreme Court Transcript’).

   [58]The Natches’ support submissions, [1] ‘Submission to support the Amended Supplementary Reply Submission’.

1. In view of my conclusion that the Natches’ further submissions dated 8 December 2021 would not have assisted them because they lacked legal merit, the support submission of 9 December also had no utility. The Natches have suffered no practical injustice by not being permitted to rely on those submissions.

Disputed submissions – conclusion

1. The Natches’ provision of their own submissions in addition to those provided by their counsel was an unusual course to adopt

1. The Tribunal was entitled to conclude as it did in the Practice Day decision that:

The applicants have been afforded every opportunity to raise these substantive legal matters in a timely and fair manner. They did not do so until well after the hearing of the application. This conduct is unfair and prejudicial to the respondents and council. It is contrary to both sections 97 and 98 (1)(d) of the VCAT Act.

1. The Tribunal did not err, as grounds three and seven contend, in deciding that the Natches’ conduct in raising substantive legal matters after 13 October 2021 was prejudicial to the respondent sand the Council and contrary to s 97 and 98(1)(d) and would cause the Kesers prejudice by the delay to the ultimate decision on the merits of the application. The Tribunal did not misapply the rules of natural justice and procedural fairness and did not misapply ss 97 and 98(1)(d). Section 97 requires the Tribunal to act fairly and s 98(1)(d) requires the Tribunal to conduct each proceeding with as little formality and technicality and determine the proceeding with as much speed, as the requirements of the VCAT Act, the enabling enactment and a proper consideration of the matters before it permit.

1. The Tribunal did not err, as ground six contends, in concluding that that while it would be fair to allow the Kesers and the Council to respond to the disputed submissions, this did not outweigh the prejudice to them by any further delay in any ultimate decision on the merits of the application. The Tribunal was entitled to consider that matter to be important.

1. In my opinion, although the Tribunal may adopt flexible procedures, it was not obliged to take the content of the disputed submissions into account when the Natches had been represented by counsel who had presented written and oral submissions to put their case. In addition, it was open to the Tribunal to consider that the disputed submissions lacked legal merit.

1. The Natches have not established that the Tribunal denied them procedural fairness or natural justice by refusing them leave to file the disputed submissions as ground four contends.

1. The Natches contended in ground two that the Tribunal erred in determining that their objections to Council and their application for review did not raise or refer to substantive legal matters. In fact in the Practice Day decision, the Deputy President and Member stated:[59]

The written documents relied upon by the applicants including their objection to council and the application for review does not refer to any substantive legal matters. At all material times before the Tribunal, the applicants were represented by an experienced firm of town planners and later at the hearing by experienced counsel.

[59]Practice Day Reasons [17].

1. The Tribunal in referring to ‘any substantive legal matters’ was obviously referring to the contentions about estoppel, res judicata and Wednesbury unreasonableness, that the Natches had sought to make in the submissions of 8 December 2021. The Tribunal was correct in that statement. Ground two is not established.

1. So far as ground five is concerned, I have concluded that the Natches’ legal arguments in their reply submissions, which the Tribunal refused them leave to rely on, were without merit. The Tribunal was therefore not required under s 107 of the VCAT Act to allocate a Member who was an Australian Lawyer to decide any question of law arising in the proceeding. Ground five is not established.

1. In ground nine the Natches contended:

The Tribunal denied the Appellants natural justice by not referring the proceeding to:

a.   a judicial member of the Tribunal; or

b.   if the legal matters raised before the Tribunal went beyond its jurisdiction. the Supreme Court of Victoria;

to determine the legal issues raised by the Appellants in their principal submissions dated 8 September 2021 and in the Submissions.

1. I informed the parties during the hearing that I considered ground nine was not established as it was without substance. VCAT did not have the power under s 77 of the VCAT Act to refer the issues in this case to this Court, which hears appeals from VCAT on questions of law. This Court does not review on the merits Council decisions concerning the grant of planning permits.

Planning application history – relevant considerations

1. The Natches placed considerable reliance on ground ten which was that the Tribunal failed to consider a relevant and mandatory consideration being the planning history of the apartment building. They contended that the Tribunal disregarded:

(a)        the whole of the facts of the 2017 VCAT proceeding;

(b)       the rationale behind the issuing of the permit in 2017;

(c)        the refusal of the responsible authority to grant the permit;

(d)       the amendment of the plans; and

(e)        the 2017 VCAT decision.

1. The Natches argued that the Tribunal Member ‘conducted no assessment or consideration at all of the facts or the previous application’[60] and as a result erred in law. They submitted that if the Member had had regard to the Council and Tribunal decisions of 2016 and 2017, he would have given weight to the importance of the proposed setbacks and their role in alleviating the proposed development’s failure to satisfy the requirements of the Planning Scheme and to its adverse effects on the neighbourhood.[61]

   [60]Ibid [44].

   [61]Ibid [57].

Analysis – relevant considerations

1. Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[62] stated how decision-makers exercising statutory power must have regard to considerations in the following terms:[63]

A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered…

[62](1986) 162 CLR 24 (‘Peko-Wallsend’).

[63]Ibid 61. Cf Chang v Neil (2019) 62 VR 174, [72].

Was the Tribunal bound to consider the planning history of the site?

1. Section 87A of the P & E Act, which grants VCAT the power to cancel or amend a planning permit states:

(1) In addition to the powers conferred by section 87, the  Tribunal may cancel or amend a permit that has been issued at its direction if it considers it appropriate to do so.

(2) The  Tribunal may only cancel or amend a permit under this section at the request of—

(a) the owner or occupier of the land concerned; or

(b) any person who is entitled to use or develop the land concerned.

1. Section 90A provides that the Tribunal must take into account factors listed in s 84B(2), when exercising its power under s 87A. Those factors do not include previous decisions of the Tribunal or the planning permit application history of the subject land, but s 90A(2) does provide that the Tribunal should take into account:

… any other matters which the  Tribunal can properly take account of or have regard to or is required to take account of or have regard to in determining a request.

1. The identification of the matters that a decision-maker is required to take into account requires consideration of the subject-matter, scope and purpose of the legislation. As the Court of Appeal stated in Brighton Foreshore Association Inc v Bayside City Council:[64]

…the factors an administrative decision-maker is bound to consider are determined by construction of the statute. Where matters relating to the exercise of a discretion are unconfined or left open by words such as ‘any other relevant matter’, a court will not find that the decision-maker is bound to take something into account unless an implication that it is bound to do so is found in the subject matter, scope or purpose of the Act.

[64][2021] VSCA 284, [102] (Emerton, Sifris and Osborn JJA).

1. One of the objectives of the P & E Act is ‘to provide for the fair, orderly, economic and sustainable use and development of land’.[65] It may be contrary to ‘fairness’ or ‘order’ if previous planning decisions regarding the same land are disregarded without being properly considered. Some degree of consistency is required in the exercise of administrative decision making,[66] including in planning law. Previous Tribunal decisions, especially those concerning the planning history of the same site, are ‘other matters which the Tribunal can properly take account of’.

   [65]Planning and Environment Act 1987 (Vic) s 4.

   [66]Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 639.

1. Zumpano[67] concerned a VCAT decision refusing the fourth application for a planning permit for the subject land. Garde J discussed the principles relevant to repeat reviews or appeals from Council planning decisions and stated:[68]

   [67][2016] VSC 420.

   [68]Ibid [27]-[29] (citations omitted).

In Rozen v Macedon Ranges Shire Council, the Court concluded:

The weight to be given to the various considerations which may be relevant on the one hand, and to particular facts bearing on those considerations on the other hand, is not fixed by the planning scheme, but is essentially a matter for the decision maker.

This passage confirms that the weight to be given to the relevant considerations, and to the particular facts bearing on those considerations, is essentially a matter for the Council and the Tribunal.

This applies equally in the case of repeat applications. Planning decisions in earlier applications affecting the subject or surrounding land are often relevant considerations in the assessment of a later application. They will almost certainly be relevant when the same use and development of the same land is sought in both the earlier and later applications. It is for the later decision-maker to determine what weight should be given to the earlier decision. Assessment of the significance of correcting features in the context of a proposed use and development is pre-eminently a planning and not a legal matter.

1. Garde J described the Tribunal’s conclusion in Zumpano, that there were no significant changes in fact or law from the previous applications, as clearly open on the evidence.[69] Of relevance to the present proceeding is his Honour’s fifth ground for dismissing the challenge to the Tribunal’s decision:[70]

Fifthly, it was the duty of the Tribunal to decide the application on the planning merits having regard to the Planning Scheme, relevant planning considerations and the submissions and evidence before it. Regardless of the way the Tribunal saw the application having regard to previous applications, it is clear that the Tribunal ultimately decided the application before it on the planning merits.

[69]Ibid [38].

[70]Ibid [41].

1. I am prepared to proceed on the basis that the previous planning history of the site was a relevant consideration. However, it was only entitled to great weight if the Kesers’ planning permit amendment application involved a significant departure from a previous planning decision concerning the site, a question which I consider below.

Did the Tribunal consider the site’s planning history?

1. The next question is whether the Tribunal took into account the planning history of the site, especially the Tribunal’s 2017 decision. The Member’s reasons referred to that decision on a number of occasions, including in the first paragraph:

Planning Permit GE/PP-29283/2016 (permit) was issued on 6 April 2017 at the direction of the Tribunal for a four-storey building above a basement car park comprising an office and dwellings…

1. The Member noted the following key issues:

·The need for the proposed balcony;

·Visual impact of the balcony to the street and adjoining property;

·Amenity impacts including visual bulk and overshadowing;

·Non-compliance with Standard B22 (Overlooking) and B17 (side and rear setbacks);

·The decrease in permeability;

·Inadequate information regarding materials and permeability; and

·Setback less than 9.7m which is not in accordance with previous VCAT decisions.[71]

[71]VCAT Reasons [6].

1. The Member stated:[72]

   [72]Ibid [16]-[17].

With respect to the eastern interface the Tribunal when determining the original development stated:

·     The proposal’s response to its sensitive eastern interface incorporates the following features:

·     A 3.0m landscape setback is provided along the common boundary.

·     At ground floor level the building is set back 6.5 m from the common boundary, which incorporates the 3.0m landscape setback and 3.5m basement access ramp.

·     At first floor level the building cantilevers over the access ramp for part (12m) of the common boundary but then increases to a 5.0m setback for the balance of the rear boundary

·     At the second floor the building has a uniform 5.0m setback from the common boundary, increasing to 9.7m at the top level.

The comments of the Tribunal are pertinent as the proposed balustrade will project above the second level east and north wall of the building. The question is whether the construction and use of the balcony is unacceptable. (emphasis added)

1. Later the Member observed:[73]

With respect to overshadowing it is evident from the original development application plans provided by the applicants, the majority of the shadow from the existing building falls onto the roof and front yard of the adjoining property to the east and the road reserve. Any additional shadow created by the proposed balustrade will be over these areas.

[73]Ibid [27].

1. These passages establish that the Member considered the background facts to the dispute about the amendment to the planning permit, including the 2017 decision. The reasons refer to the 2016 permit being issued, and to the ‘original development application plans’. The Member’s references to the 2017 decision support the conclusion that it considered the site’s planning history.

Did the Tribunal give sufficient weight to the planning history of the site?

1. The weight to be given to the planning history of the site was a matter for the Member, although when an applicant makes repeated similar applications, that history is entitled to considerable weight. In their written submissions, the Natches contended:[74]

… although it is a matter for the decision maker as to what weight is to be given to those facts, the Appellants submit it was an error of law to make no assessment at all.

[74]Outline of Submissions dated 13 October 2022, [55].

1. In Peko-Wallsend, Mason J stated:[75]

…in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power… I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”… 

[75](1986) 162 CLR 24, 41.

1. I was referred to various statements by the Tribunal and its predecessors concerning repeat planning applications and consideration of whether a previous planning decision should be reversed.[76] A useful statement of this practice is found in K & B Reichert v City of Banyule & Ors,[77] a decision upon which the appellants relied in which the Tribunal stated:[78]

   [76]Including Amoco Australia Ltd v City of Berwick (1983) 1 PABR 166, 169, Watkins v MMBW (1977) 9 VPA 184, 187, Sprut Pty Ltd v Stonnington City Council [2012] VCAT 1675, [18] citing Lemansen Pty Ltd v Boroondara CC [2012 ] VCAT 266 [30]-[33].

   [77][1996] VICCAT 44.

   [78]Ibid.

While the Tribunal is not bound by precedent, there need to be reasonable grounds for a later appeal determination to depart from a Tribunal view on a very similar proposal earlier… It seemed to me that the factors which might justify a departure from an earlier determination could include:

·     Significant changes in the application itself;

·     Changes in the circumstances of the land and its surrounds;

·     Changes in planning policy; and/or

·     Changes in the interpretation of the facts or law relevant to the Tribunal’s consideration.

1. Mr Natch contended that if the Member had considered the 2017 decision, he would have had no choice but to refuse the permit amendment. He argued:[79]

When you oppose the entire floor in 2017, what has changed? The planning scheme has not changed. The environment, the surroundings have not changed. Nothing else has changed except that the building has been built.

[79]Supreme Court Transcript 42.

1. The Natches contended that the 2017 decision had already considered the appropriate setback to the east and that that decision should not be disturbed. The developer had given assurances that the setback area would be retained as a non-trafficable roof area.

1. In my opinion, the Kesers’ application for the amendment of the permit did not involve an attempt to depart from an earlier VCAT decision. Nor was it a repeat review of an earlier decision. The Senior Member’s 2017 decision was not a decision on the same issues decided by VCAT in 2022. In the 2017 decision, the Senior Member found that the proposal for the apartment building was acceptable having regard to its physical and strategic context. In so finding the Senior Member had regard to a range of factors including: the site’s attributes and the physical context of the local centre generally,[80] the site’s area and configuration and its corner location,[81] that the review site formed part of a local centre that exhibited a diverse and somewhat nondescript character, which did not exhibit a streetscape or any particular character attributes to which a design for this site ought to respond in a sensitive or demure manner,[82] and that the proposed building adopted a number of design features which had informed the Senior Member’s decision about its acceptability in its physical context. He listed 8 such features.[83]

   [80]Stennson Pty Ltd v Glen Eira CC [2017] VCAT 464, [19].

   [81]Ibid [20].

   [82]Ibid [21].

   [83]Ibid [22].

1. The Senior Member decided that the proposal did not have unacceptable impacts on the amenity of neighbouring dwellings. He listed four features of the proposed building’s response to its sensitive eastern interface, one being:

At the second floor the building has a uniform 5.0m setback from the common boundary, increasing to 9.7m at the top level.[84]

[84]Ibid [25].

1. The Senior Member then stated:

Because of the design response the proposal’s impact on the amenity of the abutting dwelling to the east has been contained within acceptable limits. Balcony and window screening and forms ensure that overlooking of the dwelling to the east is minimised. With respect to overshadowing the shadow diagrams demonstrate that the relevant Clause 55 standard is achieved. The visual bulk impacts of the proposal are acceptable having regard to the landscape and building setbacks described.[85]

[85]Ibid [26].

1. The Senior Member referred to other features of the site and design and its interface with dwellings abutting to the north. His decision was not based on any assurances given by or on behalf of the developer about the use of the ‘roof area’.

1. I also note that by the time of the Tribunal’s review decision in February 2022, the apartment building had been built, which was a significant addition to the evidence available to the Senior Member in 2017. The Tribunal Member undertook an inspection of the two sites and said that it enabled him to:[86]

…understand the contextual relationship with the applicants’ properties located to the east and the subject site, including the location of the proposed balcony.

[86]VCAT Reasons [8].

1. The Member would have been able to note the space and appearance of the site in the context of the neighbourhood. The Tribunal could not do that in 2017 when it only had plans to inform its decision.

1. The Member in the 2022 decision had to consider the effects of the proposed amendment taking into account how the building had assimilated into the surrounding environment. He explained his reasoning in that regard, observing:[87]

The setback is sufficient to ensure the balcony when viewed from the street is recessive to the lower levels of the existing building and is an acceptable response. There are existing balconies fronting Sebastapol Street at levels 1 and 2 of the building with a 1.1 metre setback from the street. In this context the additional balcony area will blend with the existing built form and the streetscape.

[87]Ibid [12].

1. In considering the negative impacts of the proposed amendment, the Member stated:[88]

It is noteworthy the west wall of the adjoining dwelling to the east at 1 Sebastopol Street is set back approximately 2.2 metres from the common boundary and the dwelling has its secluded private open space (SPOS) located to the north with additional open space located in the front setback. The greater portion of the proposed balcony is located adjacent to the dwelling and to a path that provides access to the rear of the property. While the balustrade will be visible from this location it is not a ‘sensitive’ area.

While some views of the proposed balustrade will be available from the private open space associated with 1 and 3 Sebastopol Street, the approximate 0.85 metre projection of the balustrade above the existing parapet wall will have minimal visual impact having regard to its contextual location with adjoining property to the east and the backdrop of the existing third level.

[88]Ibid [22]-[23].

1. The Member acknowledged that:[89]

With respect to overshadowing it is evident from the original development application plans provided by the applicants, the majority of the shadow from the existing building falls onto the roof and front yard of the adjoining property to the east and the road reserve. Any additional shadow created by the proposed balustrade will be over these areas.

[89]Ibid [27].

1. The Member took into account how the apartment building rested within the neighbourhood character.

1. In Hoskin v Greater Bendigo City Council,[90] the Court of Appeal concluded:[91]

Both the terms of s 60 and the terms of cl 65.01 of the planning scheme mean that the consideration of most planning permit applications is multi-factorial. It will require not only a predictive judgment as to potential factual consequences of the proposed use or development but also an evaluation of the weight to be given to individual matters in the context of the case as a whole.

[90](2015) 48 VR 715.

[91]Ibid [54].

1. The Kesers’ application was not a repeat application in the sense that term is used. Like many planning decision-makers, the Senior Member in the 2017 decision adopted a ‘multi-factorial’ approach. That decision was not principally based on the 9.7m setback. While that feature was mentioned by the Senior Member, his decision was based on a combination of features.

1. For those reasons, I consider that it was open to the Member, having considered the 2017 decision and having weighed up the competing interests, to decide to grant the amendment to the planning permit.

Conclusion – the planning history as a relevant consideration

1. I consider that the Natches have not established that the Tribunal did not take into account the planning history of the site in deciding to amend the permit. Ground ten is not established.

Ground eleven – Clause 55.04-01 of the Planning Scheme

1. Ground eleven of the Natches’ further amended notice of appeal contends that:

The Tribunal erred in law in holding that the objective of Clause 55.04-01 had been met in circumstances where it found that the proposed balustrade will project into the setbacks of the existing building from the east boundary.

1. In their written submissions, the Natches developed this ground as follows:[92]

Further, in circumstances where the Member found that the proposed balustrade will “project into the setbacks of the existing building from the east boundary and fails to satisfy the requirements of Standard B17 of Clause 55.04-1” (and the approval of the proposal in effect [converted] the balcony into habitable living space / building area), the Appellants submit that it was incumbent upon the Member to give consideration to / assess the 2017 decisions regarding appropriate setbacks required to meet the objectives of clauses 22 and 55.

The failure to give any consideration or assessment of that rationale was, the Appellant’s submit, an error of law.

[92]Written submissions [59]-[60].

1. This ground appears to be another way of contending that the Member did not have regard to the 2017 decision in respect of the appropriate setbacks for the third floor of the apartment building, which it is said was a relevant consideration. At the same time, the ground challenges the Member’s decision that he would approve the proposed amendment despite it failing to meet the requirements of the Planning Scheme. Considered in either way, I conclude that this ground does not establish any error by the Member.

1. The Member was bound to have regard to cl 55.04-1 of the Planning Scheme by virtue of s 60(1)(a) of the P&E Act. That clause details factors which the Tribunal should have regard to in assessing the potential amenity impacts of the proposed balcony. As the Natches noted, the Tribunal stated:[93]

The proposed balustrade will project into the setbacks of the existing building from the east boundary and fails to satisfy the requirements of Standard B17 of Clause 55.04-1.

[93]VCAT Reasons [21].

1. Despite this statement, the Member decided that the objective of the clause was met.[94]

   [94]VCAT Reasons [24].

1. Clause 55.04 is headed ‘Amenity Impacts’ and cl 55.04-1 states:

Side and rear setbacks objective

To ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings.

Standard B17

A new building not on or within 200mm of a boundary should be set back from side or rear boundaries:

§  At least the distance specified in a schedule to the zone, or

§  If no distance is specified in a schedule to the zone, 1 metre, plus 0.3 metres for every metre of height over 3.6 metres up to 6.9 metres, plus 1 metre for every metre of height over 6.9 metres.

…

Landings having an area of not more than 2 square metres and less than 1 metre high, stairways, ramps, pergolas, shade sails and carports may encroach into the setbacks of this standard.

Decision guidelines

Before deciding on an application, the responsible authority must consider:

§  Any relevant neighbourhood character objective, policy or statement set out in this scheme.

§  The design response.

§  The impact on the amenity of the habitable room windows and secluded private open space of existing dwellings.

§  Whether the wall is opposite an existing or simultaneously constructed wall built to the boundary.

§  Whether the wall abuts a side or rear lane.

1. Clause 55 explains the role of Objectives, Standards and Decision Guidelines in the Planning Scheme as follows:

§  Objectives. An objective describes the desired outcome to be achieved in the completed development.

§  Standards. A standard contains the requirements to meet the objective. A standard should normally be met. However, if the responsible authority is satisfied that an application for an alternative design solution meets the objective, the alternative design solution may be considered.

§  Decision guidelines. The decision guidelines set out the matters that the responsible authority must consider before deciding if an application meet the objectives.

1. The Member, having concluded that the setback did not satisfy Standard B17, was not obliged to refuse the application. Standard B17 was just one of the matters that the Member was required to assess. The Planning Scheme also contained ‘Decision guidelines’. The Member took into account matters that those guidelines require to be considered and concluded that the proposed balcony and associated balustrade were an acceptable response to the existing building and neighbourhood character. He concluded that the proposed setback was sufficient to ensure that the existing building, when viewed from the street, was recessive to the lower levels of the existing building and was an acceptable response. He noted that the balustrade was to be lower in height than the existing balustrade and was to be located behind the parapet wall and would therefore be partially obscured. He also concluded that the proposed amendment did not have an unacceptable impact on the amenity of the adjoining property. He was not persuaded that the proposed balcony and associated balustrade would ‘fill’ the existing setback or that it would have a ‘great cost to their amenity’. He stated that the built form of the third level would continue to be the dominant architectural form at that level. He noted that the proposed balustrade would project into the setbacks of the existing building from the east boundary and failed to satisfy the requirements of Standard B 17 of cl 55.04-1. However, he concluded that the proposal met the objective of cl 55.04-1. He found first that the greater portion of the proposed balcony was located adjacent to the dwelling and to a path that provided access to the rear of the adjacent property and that while the balustrade would be visible from this location, it was not a ‘sensitive’ area.[95] Secondly, the views of the balustrade had minimal visual impact having regard to its contextual location with the adjoining property to the east and the backdrop of the existing third level.[96] Finally, the form and materials of the balustrade, which included frosted glass, added articulation to the façade.[97] The frosted glass was also a determinative factor in limiting overlooking as required by Standard B22.[98] The Tribunal also considered that overshadowing would not be worsened in the relevant areas.[99]

   [95]Ibid [22].

   [96]Ibid [23].

   [97]Ibid [24].

   [98]Ibid [26].

   [99]Ibid [27].

1. I note that a failure by the Tribunal to have regard to a provision of a planning scheme will only result in invalidity if the purpose of the scheme is that such a failure will result in invalidity.[100] No such purpose is evident in the Glen Eira Planning Scheme.

   [100]Tow v Anodin [2017] VSC 549, [18] (McDonald J).

1. In my opinion, the Member did not err by allowing the proposed amendment, despite Standard B17 not being met. It was for the Member to weigh the merits of the application. In my opinion, he performed that function in accordance with the Planning Scheme.

1. Ground eleven is not established.

Conclusion

1. None of the appellants’ proposed grounds of appeal has been established. Their applications for leave to appeal the Tribunal’s orders of 18 January 2022 and 21 February 2022 are refused and the proceeding is dismissed.

1. As no respondent or the Council participated in the hearing, no question of costs is likely to arise. But I will permit any application for any further orders that may be sought to be made by written application of no more than 3 pages to my Chambers and served on the other parties by 20 September 2023.

SCHEDULE OF PARTIES

BETWEEN:

MOHAN NATCH 

First Appellant

MOHAN NATCH and KARAN NATCH

(named as executors and trustees of the will of ANDAL NATCH, deceased dated 26 March 2023 and who have been appointed as representatives of her estate for the purposes of this proceeding)

Second Appellants

AND

ERIC CARL THOMAS KESER

First Respondent

CATHRYN KESER

Second Respondent

MADISON KESER

Third Respondent

ALEX KESER

Fourth Respondent