Residential Aged Care Services v Stonnington City Council
[2018] VSC 652
•16 November 2018
IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE
COMMON LAW DIVISION
VALUATION COMPENSATION & PLANNING LISTS CI 2017 02004
RESIDENTIAL AGED CARE SERVICES PTY LTD (ACN 075 782 393) Plaintiff v STONNINGTON CITY COUNCIL Defendants (and others according to the Schedule)
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JUDGE:
GARDE J
WHERE HELD:
Melbourne
DATES OF HEARING:
12-13 September 2018
DATE OF JUDGMENT:
16 November 2018
CASE MAY BE CITED AS:
Residential Aged Care Services v Stonnington City Council
MEDIUM NEUTRAL CITATION:
[2018] VSC 652
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PLANNING – Residential aged care facility – Decision of Victorian Civil and Administrative Tribunal – Leave to appeal – Appeal – Mixed use zone – Heritage overlay control – Minimal change area – Failure to consider relevant matters – Unreasonableness – Disclosure of a path of reasoning – Denial of natural justice – Built form – Urban design – Heritage Guidelines – Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 117(5), s 148; Planning and Environment Act 1987 (Vic), s 60(1), s 84B(1), s 84B(2).
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APPEARANCES:
Counsel Solicitors For the Plaintiff Ms S Brennan SC with
Ms J SharpNorton Rose Australia For the First Defendant Mr G Peake Maddocks For the 4th–8th, 11th–15th, 17th, 18th, 22nd–25th, 27th, 31st, 33rd-35th, 38th, 39th, 42nd-44th Defendants Mr A Walker Best Hooper No appearance for other Defendants HIS HONOUR:
Introduction
1 Residential Aged Care Services (‘the applicant’) seeks leave to appeal under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) from a decision of the Victorian Civil and Administrative Tribunal (‘the Tribunal’). The decision affirmed the previous decision of the Stonnington City Council (‘the Council’) to refuse to grant the applicant a permit for a multi-storey residential aged care facility. The facility was to include 150 rooms, 33 independent living units and basement car parking (‘the proposed development’) on land in Greville Street and Charles Street, Prahran (‘the subject land’). The proposal involves demolition of about 40% of a corner shop at 70 Greville Street, and buildings at 42, 44–46 Charles Street.
2 The proposed development is intended to meet the needs of the lesbian, gay, bisexual, transgender and intersex (‘LGBTI’) community, and respond to a lack of residential aged care for LGBTI people. It caters for people who identify as LGBTI or who are friends of the LGBTI community.
3 The subject land is in a Mixed Use Zone (‘MUZ’) under the Stonnington Planning Scheme (‘planning scheme’). It was also subject to a Heritage Overlay (HO456). The corner shop at 70 Greville Street has an A2 grading under the planning scheme, representing a building of regional or metropolitan significance. The buildings at 42, 44–46 Charles Street all have a C grading.
4 The Tribunal was constituted by a senior planning member and an architect member. During a six-day hearing:
a)the Council appeared and made submissions;
b)the Tribunal undertook an inspection of the subject land, accompanied by the parties on the first day of the hearing;
c)the objectors called one expert witness and tendered a number of witness statements; and
d)the applicant called six expert witnesses and five lay witnesses.
5 The Tribunal decision is extensive, amounting to 162 paragraphs.[1] Whilst affirming the Council’s decision not to approve the proposed development, it considered that a residential aged care facility might be capable of approval on the subject land with a revised proposal.
[1]Residential Aged Services Pty Ltd v Stonnington City Council [2017] VCAT 435 (‘the Tribunal decision’).
Application for leave to appeal
6 The applicant relies on affidavits which exhibit the documents and evidence before the Tribunal. There is no dispute as to what took place before the Tribunal.
7 The applicant relies on seven proposed grounds of appeal. They are set out later in these reasons.
Statutory framework
The PE Act
8 Section 60(1) of the Planning and Environment Act 1987 (Vic) (‘the PE Act’) sets out the relevant matters that a responsible authority must consider before deciding on an application:
(a) the relevant planning scheme; and
(b) the objectives of planning in Victoria; and
…
(f)any significant social effects and economic effects which the responsible authority considers the use or development may have.
9 In relation to reviewing permit decisions made by planning authorities, s 84B of the PE Act provides:
(1)In determining an application for review under this Act, the Tribunal must—
(a)take account of any matter which the person or body in respect of whose decision the application for review is made—
(i)properly took account of in making its decision; or
(ii)was required to take account of in making its decision; and
…
(2)In determining an application for review under this Act, in addition to the matters referred to in subsection (1), the Tribunal—
(a)must take into account any relevant planning scheme;
(b)must have regard to the objectives of planning in Victoria;
…
(jb)must (where appropriate) have regard to the number of objectors in considering whether the use or development may have a significant social effect;
…
The planning scheme
10 The Tribunal noted that there were 21 different clauses of the planning scheme that were relevant to the application.[2] I will summarise or set out the provisions that are significant to the grounds relied on in this proceeding.
[2]Ibid 3.
11 Clause 10.04 of the planning scheme relevantly provides that responsible authorities should endeavour to integrate policies and objectives to determine ‘net community benefit’ in assessing a proposed development.
12 Clause 16 of the planning scheme deals with housing. Clause 16.02-3 states that the objective of the clause is to facilitate timely development of residential aged care facilities to meet existing and future needs.
13 The objective of cl 16.02-4 is to encourage well-designed and appropriately located residential aged care facilities. It contains five strategies which express design principles and desired outcomes for residential aged care facility projects. These strategies recognise that residential aged care facilities are different from other dwellings in their purpose and function and will have a different built form. They express the need to ensure that residential aged care facilities are designed to respond to the site and its context, and aspire to high urban design and architectural standards.
14 Heritage policy is set out in cl 22.04 of the planning scheme. Clause 22.04-2 sets out the objectives of heritage policy:
•To recognise, conserve and enhance places in the City identified as having architectural, cultural or historic significance.
•To ensure that any additions, alterations and replacement buildings are sympathetic to the heritage area and/or surrounds.
•To ensure that the cultural significance of a site, involving the aesthetic, historic, scientific or social value of a place to past, present and future generations, is assessed and used to guide planning decisions.
15 Clause 22.04-3 sets out the policy applicable to places subject to a heritage overlay. Relevant parts of the policy provide that:
•Before deciding on an application to use or develop land, the responsible authority will consider, as appropriate, the potential impact of a proposal on the heritage values of the site and/or its setting and area.
•The heritage significance of all places identified in previous studies and the contributing elements within those places be considered when assessing an application in relation to any part of the heritage place…
…
•New buildings and works be compatible with the characteristics of the heritage place and undertaken generally in accordance with any guidelines prepared by the responsible authority.
•The design, bulk and setback of any new buildings and works be responsive to existing heritage assets.
16 Clause 43.01 sets out the purposes of heritage overlays, including:
…
·To conserve and enhance heritage places of natural or cultural significance.
·To conserve and enhance those elements which contribute to the significance of heritage places.
·To ensure that development does not adversely affect the significance of heritage places.
…
17 Decision guidelines for planning applications are found in cl 65.01 of the planning scheme. Under this clause, planning authorities are required to take into account factors such as the state and local planning policy framework, the purpose of the zone and the effect of the proposal on the area.
18 If the land is subject to heritage overlays, planning authorities are also required to consider the decision guidelines in cl 43.01-4, including:
·any adverse effect the proposal, including its design and built form, might have on the cultural significance of the place; and
·any adverse effect the demolition of an existing structure might have on the significance of the heritage place.
Permit requirements
19 Under the planning scheme, the planning controls that applied to the subject land were the MUZ, Heritage Overlay (HO456), and the Environmental Audit Overlay. There were three permit requirements in the planning scheme that had to be satisfied before a permit could be granted for a residential aged care facility on the subject land:
·clause 32.04 to develop the land for a residential aged care building;
·clause 43.01 to demolish a building, and to construct a building and carry out works; and
·clause 52.07 to vary the requirement for a loading bay.
20 The first two of those requirements were the major permit triggers. The third was of lesser importance.
21 There was no dispute as to the three permit triggers, the key scheme provisions applicable to the proposed development or their interpretation.
The Tribunal’s reasons
Aged care for the LGBTI community
22 In the opening paragraphs of its decision, the Tribunal described the application before it in these terms:
Equitable access to residential aged care services is essential for all members of the community; where people can age with respect and dignity and where people can age in a safe and secure environment. People of diverse sexual orientation, sex or gender identity have not typically been catered for in residential aged care. It is recognised at the National level that particular attention is required to assist the LGBTI community due to their experience of discrimination and the limited recognition of their needs.
The proceeding before the Tribunal addresses a permit application that seeks to respond to this situation. It proposes what is understood to be the first residential aged care facility in Australia to cater specifically for people who identify as LGBTI or are friends of the LGBTI community. The facility is proposed in Prahran; part of Melbourne that is recognised for its association with the LGBTI community and where people of diverse sexual orientation, sex or gender identity have congregated, celebrated and have been supported by a range of services and facilities.[3]
[3]Ibid 4 [1]–[2].
23 The Tribunal identified the key planning issues that it had to address in summary as follows:
a)the planning context that applies through the scheme and the relevance of a proposed amendment;
b)the attributes of the subject land for the proposed use;
c)the need for and benefits of a residential aged care facility specifically for the LGBTI community;
d)the acceptability of the built form and design with respect to:
(i)the heritage place within which the subject land sits and other nearby heritage places;
(ii)the relationship with the Chapel Street Activity Centre;
(iii)the relationship with the abutting railway corridor, station and public pathway;
(iv)character outcomes sought by the scheme;
(v)the interface with properties to the south; and
(vi)the internal layout.
e)the impacts arising from access to the basement and loading bay; and
f)concerns about increased traffic and the operation of the porte cochere.[4]
[4]Ibid 4–5 [4].
Land use and built form
24 The Tribunal described its task in these terms:
The Tribunal must decide whether the proposal will produce an acceptable outcome having regard to the relevant policies and provisions in the scheme. This proceeding requires us to address a range of complex and potentially competing policy and contextual considerations relating primarily to built and design form outcomes while also having regard to the indisputable and important benefits that the proposed facility can provide to the LGBTI community. Net community benefit is central to reaching a conclusion…[5]
[5]Ibid 5 [6].
25 No issue was taken as to the correctness of this passage. I accept that it accurately summarises the decision-making process required to be adopted by the Tribunal.
26 The Tribunal then described the subject land in these terms:
The subject land is within the Mixed Use Zone [MUZ]…The land contains a former shop. It is single storey with a chamfered entry facing the intersection of Greville and Charles Streets. An open parking area and three other buildings of varying scales are all part of the subject land in the same zone.
The balance of this pocket of MUZ land is on the west side of Charles Street. It contains four single storey cottages fronting Charles Street, a two storey building on the south-west corner of Charles Street and Greville Street, and a complex of buildings that were part of the former Sunrise Confectionary warehouse and factory and since redeveloped. That redevelopment includes offices and dwellings.[6]
[6]Ibid 6–7 [10]–[13].
Policy themes
27 The Tribunal listed the policy themes most relevant to the dispute:
·Residential aged care facilities, housing diversity and affordability, and housing for specific housing needs.
·Chapel Street principal activity centre and strategic development opportunities.
·Heritage.
·Urban design, quality of the public realm and neighbourhood character.
·Relationship with residential uses and adjoining sites.
·Sustainable transport and car parking.
·Sustainable design.[7]
[7]Ibid 8–9 [22].
Minimal change
28 The Tribunal noted that the subject land was within a minimal change area (a residential area within a HO456). It was in an inner urban area for the purposes of considering neighbourhood character under the MUZ. It was located outside the Chapel Street principal activity centre.[8]
[8]Ibid 9 [24].
29 The Tribunal then observed:
•Application of terms such as ‘minimal change’ must be considered in the context of the height, scale and massing of the existing and emerging built form and other considerations including reasonable amenity expectations.
•An intensive development on the subject land is potentially possible and achievable while conserving and enhancing identified heritage values.[9]
[9]Ibid.
Site suitability
30 The Tribunal noted that no planning permission was required to use the subject land for the proposed residential aged care facility, and that no party suggested that the subject land was unsuitable for the use.
31 The Tribunal described the subject land as ‘an excellent location for the proposed use’,[10] stating its reasons as follows:
[10]Ibid 10 [28].
· the proposed use was consistent with the purpose of the MUZ and with policy for higher density development to be directed to locations with the highest accessibility to public transport and services;
· the subject land was part of Prahran where there was a strong association with the LGBTI community; and
· the subject land was a large lot with the capacity to accommodate a sizeable built form, at a corner location with potential lane access, abutting a railway station and with access to many LGBTI services and facilities.[11]
[11]Ibid 10–11 [28]-[31].
Need for aged care facilities
32 The Tribunal observed that there was no dispute between the parties as to the need and benefit of providing aged care facilities. However, the applicant submitted to the Tribunal that the Council did not give proper weight to the unmet need of LGBTI people in the residential aged care sector.[12]
[12]Ibid 11 [33].
33 The Tribunal accepted the evidence given by the applicant’s witnesses as to the proposal and its social outcomes, including:
·LGBTI people should have the same options in aged care as all Australians;
·LGBTI people have experienced prejudice and discrimination in the past which has led to isolation. This has negatively influenced their experience of residential aged care; and
·the proposed development can help address the issues faced by elderly LGBTI people and provide a safe place for them to express their sexuality without fear of abuse.[13]
[13]Ibid 11–12 [34]–[35].
34 Turning to the weight to be given to need, the Tribunal observed:
…Although the question of need is frequently raised in disputes about permit applications, need does not have to be demonstrated to support an application. However, case law is that a demonstrated need for a facility or use may be a relevant factor in a decision but lack of a need will rarely, if ever, be a ground for refusing to grant a planning permit.
In our view, the need and social benefits to which we have referred and whose outcomes are consistent with various strategies, are relevant to a proper and balanced assessment of the permit application and the principle of net community benefit.[14]
[14]Ibid 12 [36].
35 After referring to the submissions of the Council as to need, the Tribunal concluded:
The planning scheme gives direct support to the provision of aged care accommodation…
…It would proudly mark a milestone in the recognition of the needs of the LGBTI community. However, that finding does not override the consideration of all other matters that we must address under the scheme or allow us to automatically dismiss negative outcomes. As we have said, the demonstrated need in this case is relevant to the requirement for us to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.[15]
[15]Ibid 13 [41]–[42].
36 The Tribunal then turned to consider the specific needs of the LGBTI community as identified in the evidence and in Commonwealth strategies. The Tribunal recognised that the allocation of beds by the Commonwealth ‘underscores the identifiable community need’. The Tribunal stated that it had taken the evidence of Ms Gall (Chief Executive Officer of the applicant) and other evidence into consideration in the overall balancing process. It accepted Ms Gall’s evidence that a reduction in bed numbers will result in a reduction in amenities.[16]
[16]Ibid 13 [44]–[47].
Built form and urban design
37 The Tribunal gave extensive consideration to built form and urban design outcomes, referring to the planning evidence of the applicant. An important issue was that the subject land was in a minimal change area under cl 21.05-2 of the planning scheme, and that there was no plan to extend the activity centre across the railway line so that the subject land could become part of the activity centre.[17]
[17]Ibid 14 [49].
38 The Tribunal observed that the heritage values of the subject land and the contribution of some buildings to the heritage place were consistent with the application of the minimum change area. The Tribunal said:
… there is significant and contributory heritage fabric on and around the site. Having said that, much of the subject land is not occupied by heritage buildings that warrant retention and this allows the strategic opportunities of the land’s location to be realised.[18]
[18]Ibid 14 [50].
39 Rejecting the applicant’s submission that the minimal change categorisation was unreasonable and not strategically intended, the Tribunal said:
The minimal change categorisation…is logical given the site condition. It is also logical having regard to the relatively limited degree of built form change that will occur around the subject land in the short and middle term…[19]
[19]Ibid 14 [51].
40 The Tribunal then summarised its view as to the suitability of the subject land for strategic redevelopment:
…the subject land is a candidate for more intensive development and is a strategic redevelopment site…its proximity to the railway station and activity centre, the large land size, and the limited immediate residential abuttals are among the factors that reinforce this conclusion.
…
Built form is linked to the function of the development. Clause 16.02-4 recognises this with respect to residential aged care…Strategies in this part of State policy are also to ensure…that:
•Residential aged care facilities are designed to respond to the site and its context.
•Residential aged care facilities aspire to high urban design and architectural standards.[20]
[20]Ibid 16 [53]–[56].
41 The Tribunal then undertook a detailed assessment of the proposal, identifying a number of key issues:
•The relevant heritage values and the way in which the proposal responds to those values.
•The position of the land outside the designated boundaries of the activity centre but effectively beside the activity centre and railway station.
•The relationship with the low rise character of properties within the NRZ.
•The response to public spaces including the pathway adjacent to the west side of the railway station.
•The response to the public realm along Greville Street as a consequence of the proposed porte cochere.
• The interface with dwellings at No. 38 Charles Street.[21]
[21]Ibid 16 [57].
Concerns about demolition
42 In the course of its evaluation of heritage, the Tribunal expressed concerns about the demolition of the building at 44-46 Charles Street, Prahran:
We consider the contribution that the C graded bakery makes architecturally to HO456 has not been adequately acknowledged…
…
…having regard to the decision guideline in clause 43.01, we find removal of the whole building will adversely affect the significance of the heritage place.[22]
[22]Ibid 21 [79]–[81].
43 The Tribunal considered that an appropriate response to the heritage values of HO456 would include:
•Adopting a three storey street wall to Greville and Charles Streets with no ground level setbacks to Charles Street and the lane.
•Retaining the prominence and legibility of the A2 graded shop…
•Stepping back new building fabric…
•Allowing a higher built form at the railway interface…
•Responding to both the Greville Street and Charles Street streetscapes in HO456…
•Adopting a contemporary design with articulation that responds to the heritage development pattern...[23]
[23]Ibid 22 [87].
44 The Tribunal had real concerns as to the impact of the proposed development on the retained A2 building at 70 Greville Street, Prahran and particularly:
•The abrupt manner in which the lift core protrudes from the roof profile along the Charles Street elevation with solid vertical wall planes that are unsympathetic to the diminutive retained building.
•Inadequate vertical or horizontal setbacks to enable the retained shop building to be conserved or enhanced as a significant element in HO456.[24]
…
[24]Ibid 24 [90].
45 There were also concerns as to the impact of the proposed development on the railway station which was within HO456:
We find that the scale and massing adjacent to the railway station far exceeds the existing condition and results in a form with a scale and prominence that has a negative impact on the heritage precincts around the station and Porter/Greville Streets corner. It does not maintain a prominent street wall along the northern elevation…and overwhelms the open heritage setting where HO456 and HO126 abut…[25]
[25]Ibid 25 [92].
46 These considerations led the Tribunal to conclude that the proposed development did not conserve or enhance the values of HO456. The Tribunal’s reasons for this conclusion were as follows:
We are concerned about the loss of some heritage fabric, the manner in which the new building visually dominates that part of the A2 corner shop that is proposed to be retained, as well as the response to streetscapes within HO456.
We are further concerned that it does not adequately respond to the eastern end of HO456 that includes the railway station and western end of HO126 which are read together in an open setting. We are not persuaded that the building’s form and massing are sufficiently broken down, or that the materials and finishes suitably respond to the heritage context, so as to mitigate negative impacts on HO456.[26]
[26]Ibid 25–26 [94]–[96].
Prahran Activity Centre
47 Turning to the relationship of the proposed development to the Prahran Activity Centre, the Tribunal described the views expressed by the applicant’s planning experts that the subject land should be considered part of the activity centre as contrary to the strategic intent of the planning scheme.[27]
[27]Ibid 28 [103]–[104].
Architectural design
48 Whilst highlighting one positive feature of the design of the proposed development, the Tribunal found that its architectural response, mass and form were unacceptable. The reasons given by the Tribunal were as follows:
•The street wall is not sufficiently strong and the upper levels are too prominent in the setting – a visual link along Greville Street is not achieved because of the lack of a strong street wall and the massing of the eastern elevation.
•The combination of materials and the way in which they are assembled, in conjunction with shallow upper level setbacks, compete with the street wall so that is not read as a strong visual element along Greville Street.
•The eight storey wing and the overall architectural treatment visually compete with development in the activity centre.
•The sheer walls provide limited relief and the vertical elements above the porte cochere interrupt readability of the street wall.
•The building will be read in-the-round because of its height above lower-rise forms that are unlikely to materially change but the southern elevation is not sufficiently resolved.[28]
[28]Ibid 29 [106].
49 The Tribunal considered that there was an opportunity for higher density development on the subject land and the possibility of doing so without overwhelming the fine grain and other elements of the land within the MUZ and HO456.[29]
[29]Ibid 30 [112].
Planning evidence
50 Commenting on the applicant’s planning evidence, the Tribunal said:
• …The continuous treatment to all sides of the building of similar elements utilising a palette of high contrast…result in the following:
oA lack of defined podium or street wall that sufficiently reinforces height and visually draws attention to upper level elements that employ strong visual language.
oA lack of differentiation to the specific interfaces of the four facades, each of which have specific features. The architectural response does not differentiate and respond to the different character elements but adopts a uniform approach with strong black and white motifs…
•The street wall to street width ratios described in expert evidence are not successfully achieved because of the inadequate setbacks of the upper levels along the Greville and Charles Street streetscapes. The mass is excessive and shadowing to the opposite side of Charles Street emphasises this point.[30]
[30]Ibid 31 [114].
Porte cochere
51 While finding in favour of the applicant that there were no traffic concerns associated with the proposal, the Tribunal was concerned as to the urban design aspects of the porte cochere proposed as part of the development:
…The void provided over the port cochere features heavy irregular suspended vertical elements. We consider these elements and the design response of the porte cochere diminish both the sense of security and the importance of creating a strong street wall.
…
We accept the porte cochere because of the specific needs of the land use. However, we find the impact on the public realm of Greville Street unacceptable and somewhat oppressive because of the scale and inadequate street wall in the design response.[31]
[31]Ibid 32 [117], [120].
Relationship of proposed development to the railway line
52 After referring again to policy considerations, the Tribunal stated that it had concerns about the interface with the railway station, firstly because the building volume exceeds the existing conditions, secondly because the visual impact of the design does not enhance the experience of the railway station and thirdly because the design of the bedrooms facing the railway station limits privacy for residents. The Tribunal therefore considered that a fresh approach was necessary.[32]
[32]Ibid 33 [125], [127].
Laneway impact
53 Referring to the impact of vehicular noise on nearby residents from a laneway abutting the subject land, the Tribunal commented that the proposed development would represent a significant change from existing conditions and its ‘impact should not be dismissed’. The Tribunal considered that a ‘development of lesser scale…would have a lesser impact’.[33]
[33]Ibid 36 [141]–[142].
Other matters
54 The Tribunal then dealt with matters which it considered could be resolved by permit conditions or detailed design changes. These included the length of a laneway, excess parking, reduction in bicycle parking, acoustic attenuation and internal layout.[34]
[34]Ibid 37–38 [148]–[156].
Conclusion
55 The Tribunal summarised its conclusions as to whether the proposed development would be of net community benefit in these terms:
There are many good reasons why the proposed use is appropriate, and desirable, on the subject land. It is self-evident the subject land is a large site, and very well located with respect to residential areas, public transport and activity centre access. It is the type of location encouraged by the scheme for this type of use. We do not under-estimate the difficulty in finding sites of this size that can accommodate a residential aged care facility in an inner-city location…
…It is not the Tribunal’s role to recraft the scheme’s provisions. Nor should we interpret scheme in a way that could undermine important outcomes being pursued. The subject land is not within the Chapel Street Activity Centre and has been identified by the planning scheme as a minimal change area but it is a strategic opportunity and there is clearly scope for its intensive development.
We have not been persuaded that strategic opportunity supports a building with the degree of impact this development would have. That is particularly in its response to the heritage precinct, the dwellings at No. 38 Charles Street, and its overall composition and massing in heritage, character and design terms. And, as much as we give weight to our findings that the proposed use is appropriately located and is a very worthwhile initiative, we have not been persuaded that the community benefits associated with the proposed land use outweigh the negative impacts the proposal would make, thereby resulting in an unacceptable development outcome.
We envisage that a residential aged care facility could be developed on the subject land in a revised proposal. We have considered whether it is possible to craft permit conditions to do so. However, significant redesign would be required to achieve an acceptable outcome and further public notification would also need to occur. With these considerations in mind, a fresh permit application is required, should the proponent seek to pursue a residential aged care facility…[35]
[35]Ibid 38 [157]–[161].
56 Having summarised its reasons in these terms, the Tribunal affirmed the decision of the responsible authority to refuse to grant a permit.[36]
[36]Ibid 39 [162].
The test for the grant of leave
57 In Secretary to theDepartment of Premier and Cabinet v Hulls,[37] the Court of Appeal gave detailed consideration to the question of when leave to appeal should be granted under s 148(1) of the VCAT Act. 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.[38] The Court will also have regard to the justice of the particular case,[39] and whether the applicant has identified a question of law that is of general or public importance.[40] The applicant must show that there is sufficient doubt attendant the question of law to justify the grant of leave.[41] Hulls applies to the present case.[42]
Planning decision making and the decision in Hoskin
[37][1999] VSCA 117 (‘Hulls’).
[38]Ibid [10].
[39]Ibid [16].
[40]Ibid [11].
[41]Ibid [10]. See also Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, [28]-[30]; Metricon Homes Pty Ltd v Softley [2016] VSCA 60, [11]–[21], [69](‘Metricon’).
[42]Metricon, above n 41; Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109, [51].
58 The basis for planning decision making in Victoria has been considered by the Court of Appeal.[43] In Hoskin, the Court of Appeal stated:
[43]Hoskin v Greater Bendigo City Council [2015] VSCA 350 (‘Hoskin’); Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27 (‘1045 Burke Road’).
In determining whether a permit should be granted, the Council, as responsible authority in the first instance, and the Tribunal, in turn, when carrying out a merits review, must ultimately consider whether the proposed use and development is in the public interest in the sense that it will result in net community benefit.
…
The test of net community benefit implicitly recognises that a proposal may have both benefits and disbenefits which must be jointly evaluated.
It follows that it will not be sufficient for objectors to simply establish that a particular proposal will or may cause some planning disbenefit in order to demonstrate that a permit should be refused. Conversely, it will not be sufficient for a permit applicant to simply demonstrate that a proposal will or may convey some planning benefit in order to establish that a permit should be granted.
To like effect, cl 65 of the planning scheme requires a responsible authority to decide whether a proposal for which a planning permit is sought will produce ‘acceptable outcomes’…
In Rozen v Macedon Ranges Shire Council, Osborn J addressed the test of ‘acceptable outcomes’ as follows:
‘The test of acceptable outcomes stated in the clause is informed by the notions of net community benefit and sustainable development. An outcome may be acceptable despite some negative characteristics. An outcome may be acceptable because on balance it results in net community benefit despite achieving some only of potentially relevant planning objectives and impeding or running contrary to the achievement of others.’[44]
[44]Hoskin, above n 43, [45]–[50] (citations omitted).
59 The Court then listed the matters which s 60(1) of the PE Act required a responsible authority to consider.[45] The Court noted that cl 65.01 of the relevant planning scheme also required the responsible authority to consider specified matters.
[45]Ibid [51]. Referred to above at [8].
60 As a result, the Court concluded:
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.[46]
[46]Hoskin, above n 43, [54].
61 This passage describes the duty of councils and the Tribunal in planning matters. It is the fundamental basis upon which planning applications in Victoria are decided on their merits.
62 I will refer to each of the grounds of appeal proposed by the applicant as argued before the Court.[47]
[47]For convenience, the grounds are renumbered as grounds 1 to 7.
Ground 1 – failure to consider relevant matters
63 Under ground 1, the applicant contended that the Tribunal erred in law by failing to consider the following matters:
(a)the functional requirements of an aged care facility;
(b)clause 16.02-4 of the [planning scheme];
(c)the importance of the “neighbourhood model” in the design of an aged care facility;
(d)the importance of bed numbers and communal amenities for an aged care facility.
64 Grounds 1(a), (c) and (d) refer to evidence before the Tribunal. Ground 1(b) relates to a provision of the planning scheme.
Relevant legal principles
65 The applicant relied on a number of fundamental legal principles that are not in dispute, including:
(a)the failure of a decision maker to take into account a relevant matter that he or she is bound to consider may amount to an improper exercise of power;[48]
(b)a decision maker may be bound to take a matter into account by the express terms of the statute, or by implication, having regard to the subject matter, scope and purpose of the statute;[49]
(c)in order to take a matter into account, a decision maker must give proper, genuine and realistic consideration to the merits of the case;[50]and
(d)the Tribunal is required to consider any significant social effects the development may have.[51]
[48]Citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J) (‘Peko-Wallsend’). See also Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, 677–681 (Barwick CJ); Body Corporate Strata Plan No 4166 v Stirling Properties (No 2) [1984] VR 903, 913-914 (Ormiston J).
[49]Citing Sinclair v Tripodis Constructions Pty Ltd [2013] VSC 722, [18] (Emerton J).
[50]Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, 174–175 [26], [29]; Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 (Gummow J); NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470, 482-3 [37] (Gummow J); 526 [171] (Callinan and Heydon JJ); Barro Group Pty Ltd v Brimbank City Council [2012] VSC 154 [108], [109] (Emerton J); Maioha v Minister for Immigration and Border Protection [2018] FCA 1016, [24]–[27] (Perry J).
[51]Citing PE Act s 60(1)(f).
66 The Council and the objectors also relied on fundamental legal principles that are not in dispute, including:
(a)the Tribunal is an expert body, and it is inappropriate to seek out error; examine the reasons in an overly legalistic manner; or to over-zealously draw inferences in order to disclose some supposed error;[52]
(b)in reviewing an administrative decision for failure to take into account a relevant consideration, particular care must be taken to avoid crossing the line between judicial review and merits review and to ‘misconstrue dubious findings of fact or questionable weight being given to particular evidence’ as jurisdictional errors;[53]
(c)not everything relevant that a decision maker does not refer to is to be taken to have been overlooked. However, if something which should have been considered is not referred to, and the nature of the decision suggests some error which may have been due to that matter not having been considered, the court may properly draw that inference;[54]and
(d)the obvious purpose of s 117 of the VCAT Act is to require the Tribunal to state reasons with material questions of fact so that the parties, and in turn, the Supreme Court, can understand the essential basis on which the Tribunal reached its decision.[55]
[52]Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works [1971] 38 LGRA 6; Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works [1980] 44 LGRA 65; Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2015] VSC 515, [10] (‘A.N.H. Nominees’); Roncevich v Repatriation Commission (2005) 222 CLR 115, 136 (Kirby J); Vegas Nominees Pty Ltd v Werribee Sports and Community Club Inc [1994] VicAATRp 70 (Ashley J); Secretary to the Department of Justice v Yee [2012] VSC 447, [96].
[53]Stojilkovic v Romas & Ors [2017] VSC 49, [15].
[54]Charnley Glen v Boroondara City Council [2000] VSC 340 (Balmford J); Yendall v Smith Mitchell & Company Ltd [1953] VLR 369, 379 (Sholl J); Harrison v Mansfield [1953] VLR 399, 404 (Sholl J); B. Marsh Nominees Pty Ltd v City of Moonee Valley & Ors [2004] VSC 237, [25].
[55]Berbers v Transport Accident Commission [2002] VSC 211, [25] (Osborn J).
67 Recently, the Court of Appeal said in Secretary to the Department of Justice & Regulation v OUX:
Under s 148 of the VCAT Act, this Court’s jurisdiction is, as we have mentioned, limited to the resolution of questions of law. In a not dissimilar legislative context, this limitation has been said to impose a ‘significant constraint’ upon the role of the Court in reviewing a Tribunal’s decision. This ‘practical as well as principled restraint’ means that the Court ‘will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts’. Hence, the reasons of the Tribunal for the decision under review ‘are not to be construed minutely and finely with an eye keenly attuned to the perception of error’. The reality is ‘that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’. We have endeavoured to take a broad and practical approach to the interpretation of the Tribunal’s reasons, bearing the foregoing principles steadily in mind.[56]
[56][2018] VSCA 178, [36] (Priest, Beach and Weinberg JJA) (citations omitted).
68 In accordance with this decision, a practical and principled approach should be adopted to the interpretation of the Tribunal decision, but not a minute or overzealous review to identify inadequacy or error.
Applicant’s submissions and evidence
69 The applicant submitted that:
a)the Tribunal failed to consider the functional requirements of an aged care facility[57] or the importance of the ‘neighbourhood model’ in the design of such a facility;
b)the Tribunal failed to consider the importance of bed numbers and community amenities;[58]and
c)the Tribunal in its decision did not refer to key aspects of the evidence as to the functional requirements of the facility which influenced built form. These included the neighbourhood model, the staffing ratio, dementia care requirements, the ratio of independent living units to aged care beds, and the number of beds overall.
[57]Ground 1(a).
[58]Grounds 1(c) and 1(d).
70 The applicant pointed to other instances where a differently constituted tribunal had given weight to the need for greater height, or other functional needs of a residential aged care facility.[59]
[59]Relying on Alkero Development Pty Ltd v Stonnington City Council [2018] VCAT 1120; Matthies Property Investments Pty Ltd v Stonnington City Council [2013] VCAT 2011; Central Estate Properties Pty Ltd v Manningham City Council [2014] VCAT 343.
71 The applicant also submitted that:
a)cl 16.02-4 specifically dealt with the design and location of residential aged care facilities and recognised that they were different to dwellings in their purpose and function;
b)cl 16.02-4 recognised that residential aged care will have a different scale, height and mass to traditional residential forms; and
c)the Tribunal had not assessed or applied cl 16.02-4 to the proposed built form.
72 In her evidence, Ms Gall described how the applicant had designed the proposed development as a seven-level building, and been awarded 132 bed licences in the 2015 Aged Care Approvals Round. 120 of the bed licences were for LGBTI-specific aged care in the Stonnington region with the remaining 12 for general aged care use at the same site. Subsequently, the right to a further 18 bed licences was transferred from another project. In all, 149 places were sought to be used for the proposed development.
73 Ms Gall said that the project had been designed around the neighbourhood model. In summary, this involved the following features:
a)the creation of a home environment rather than a clinical or institutional model;
b)12 or 18 bed neighbourhoods;
c)a staffing ratio of one care worker for every six residents;
d)facilities to encourage independence and normal daily activities;
e)a residential environment that was supportive of residents with cognitive issues, e.g. dementia; and
f)a servery, lounge, dining, activity space, staff station, and support services area within each neighbourhood.
74 She described the proposed built environment as designed to enable social interaction and intended to:
a)highlight the importance of connection to the community;
b)facilitate community access into the facility;
c)create a level that can be accessed by the general public;
d)develop an intergenerational hub to bring the public into the building to use facilities;
e)provide services that can be accessed by the general community; and
f)provide community facilities for local organisations.
75 In her oral evidence at the Tribunal hearing, Ms Gall elaborated on these features. She highlighted the link between the neighbourhood model with the staff-resident ratio, and the benefits of the neighbourhood design in promoting resident independence and small group interaction to combat social isolation. The design would enable and encourage caregivers and residents to form valuable, everlasting friendships. Like-minded people could live in small communities and feel a sense of community.
76 Ms Gall said that dementia design avoided dead ends and enabled residents to move freely in a circular motion. There was no need to provide balconies. The porte cochere was a valuable feature as it allowed ease of entry to emergency vehicles and patient transfers. It provided a sense of arrival and assisted orientation. She said that an increase of the building setback to 10 metres would affect the rooms abutting Charles Street with the result that there would be only one row of rooms along the wall. This would also impact on the staff-resident ratio.
77 Ms Gall referred to a financial model that showed the proposed development was financially stable, although she did not produce the model. Whilst cognisant of Ms Gall’s evidence that 40% of clients were financially disadvantaged, the Tribunal recorded that it had received no detailed or independent financial assessment.[60]
[60]Tribunal decision, 13 [47].
Council’s submissions
78 The Council submitted that:
a)the Tribunal had considered the functional requirements of the facility;
b)the Tribunal had referred to the evidence of Ms Gall regarding the functional requirements of a residential aged care facility;
c)while the Tribunal had considered the functional requirements, the outcome arrived at was not that desired by the applicant;
d)the functional requirements were really the applicant’s own requirements in terms of the services it wished to provide, and the manner in which it wished to operate the facility;
e)when completed, the proposed development was to be leased to a tenant, who would ultimately operate the facility;
f)the Tribunal did take into account cl 16.02-4 and the strategies found in that provision and was responsive to the applicant’s case and submissions about cl 16.02-4; and
g)clause 16.02-4 was taken into account by the Tribunal, with all other relevant considerations, and given the weight that the Tribunal thought appropriate.
Objectors’ submissions
79 The objectors submitted that the Tribunal had:
(a)noted the key issues it had to address including the acceptability of built form and design;
(b)noted aspects of the permit application, including Ms Gall’s evidence;
(c)noted the relevant policy themes including that of residential aged care facilities, and those set out at cl 16.02-4;
(d)considered functional aspects of the proposed facility, noting the evidence of Ms Gall regarding the importance of the scale of development and bed numbers as crucial requirements;
(e)considered evidence with respect to need and the social outcomes in the overall balancing process;
(f)noted that built form is linked to development and that cl 16.02-4 recognises this with respect to residential aged care;
(h)noted that all of these matters were central to the dispute,[61] and
(i)concluded that it was not persuaded that the community benefits associated with the proposed land use outweighed the negative impacts the proposal would make, thereby resulting in an unacceptable development outcome.[62]
[61]Ibid 4–5 [4], 5 [7]–[9], 8–9 [22], 11–13 [33]–[47], 14–17 [48]–[58].
[62]Ibid 38 [160].
Conclusion as to grounds 1(a), (c) and (d)
80 The Tribunal is an expert tribunal, well-versed in dealing with proposals for the use and development of land, including residential uses of all types. It is experienced in dealing with issues of planning, urban design, architecture and heritage. The key issues listed by the Tribunal included the need for, and benefits of, a residential aged care facility to cater for the LGBTI community[63] and the accessibility of the built form and design.[64]
[63]Ibid 4–5 [4].
[64]Ibid.
81 As the Tribunal identified, it had to decide whether the proposal would produce an acceptable outcome having regard to the relevant policies and provisions in the planning scheme. It accepted the indisputable and important benefits of the proposed facility to the LGBTI community.[65]
[65]Ibid 5 [6].
82 In describing the permit application, the Tribunal referred to Ms Gall’s evidence about the proposed gallery in the corner shop and underground wellness centre, including pools and consulting rooms.[66] It summarised what it saw as the key points in the evidence of Ms Gall and other witnesses called by the applicant. The Tribunal stated that their evidence was uncontested and accepted by the Tribunal.[67]
[66]Ibid 5 [8].
[67]Ibid 11–12 [34]–[35].
83 The Tribunal accepted that the need and social benefits associated with the proposal were relevant to a proper and balanced assessment of the permit application.[68]
[68]Ibid 12 [37].
84 While not using the expression ‘functional requirements’ (which is not an expression found in the PE Act or in the planning scheme), the Tribunal noted Ms Gall’s evidence about ‘the importance of the scale of development and bed numbers as a crucial requirement’.[69]
[69]Ibid 13 [45].
85 The Tribunal was also aware of Ms Gall’s evidence about the possible impacts of reduced bed numbers. It set out part of her evidence where she referred to a reduction in bed numbers as equating to ‘a reduction in amenities’ and the need to future-proof the development to meet future demand.[70]
[70]Ibid.
86 The Tribunal also detailed specific criticisms of the proposed development, including use of the laneway, parking, acoustic attenuation and internal layout.[71]
[71]Ibid 37–38 [148]–[155].
87 When dealing with internal layout, the Tribunal observed that over the course of the hearing, it questioned other detailed design elements, including ‘the lack of private open space for the independent living units, shadowing of the internal courtyard, and the amenity of the staff room’.[72] The Tribunal stated that it would not address these in detail but would expect the facility to be designed in accordance with Commonwealth standards.[73]
[72]Ibid 37 [155].
[73]Ibid 38 [156]
88 The references to design details in the Tribunal decision suggest that the Tribunal was fully conversant with the design and functional requirements of the proposed development.
89 In the final part of its decision, the Tribunal weighed up the competing factors in assessing net community benefit. It described the proposal as ‘an excellent initiative’.[74] It accepted that there were many good reasons why the proposal was appropriate, and desirable on the subject land.[75] However, as much as the proposed development was appropriately located and was a very worthwhile initiative, the Tribunal was not persuaded that the community benefits associated with the proposal outweighed its negative impacts. This therefore resulted in an unacceptable development outcome.[76]
[74]Ibid 38 [157].
[75]Ibid 38 [158].
[76]Ibid 38 [160].
90 Having regard to all of the above, I reject the applicant’s submission that the Tribunal failed to consider the matters listed in grounds 1(a), (c) and (d). To the contrary, I am satisfied that each of these matters, and other relevant matters, was considered by the Tribunal and given the weight the Tribunal considered it warranted.
Conclusion as to ground 1(b)
91 Clause 16.02-4 is a policy provision with an objective and five strategies.[77] It does not impose a prescriptive standard or requirement.
[77]At [13].
92 The Tribunal listed cl 16 as a key scheme policy and provision.[78] Whilst recognising that many state and local policies were relevant to its consideration, it identified ‘residential aged care facilities, housing diversity and affordability, and housing for specific housing needs’ as the most relevant policy themes.[79] It noted cl 16.02-4 in this context.[80]
[78]Tribunal decision, 3.
[79]Ibid 8 [22].
[80]Ibid 8 [22] n 12.
93 The Tribunal also referred to cl 16.02-4, in the context of state and local policy, for residential aged care facilities to be directed to locations with highest accessibility to public transport and services.[81]
[81] Ibid 10 [29] n 30.
94 The Tribunal considered cl 16.02-4 in the context of built form, quoting in full relevant parts of the provision (including the part most favourable to the applicant in italics). The Tribunal then described these matters as ‘central matters to the dispute’. This observation was direct and pertinent, and went to the heart of the relevance of cl 16.02-4.[82]
[82]Ibid 16 [55]–[56].
95 The Tribunal described cl 16.02-4 as one of the provisions that aspire to high urban design and architectural standards. Having considered cl 16.02-4, the Tribunal’s findings were ultimately adverse to the applicant. The design adopted by the applicant may be suitable for another location, but the Tribunal found it did ‘not respond to the specific features of this setting’.[83] The Tribunal reiterated these concerns in its conclusions concerning net community benefit.[84]
[83]Ibid 29 [107].
[84]Ibid 38 [160].
96 For these reasons, I am satisfied that the Tribunal did take cl 16.02-4 into account as a relevant consideration and gave it proper, realistic and genuine consideration.
Are the matters raised in ground 1 vitiating errors?
97 The Tribunal ultimately decided that the negative impacts of the proposed development outweighed the positive impacts. The negative impacts were numerous and substantial. They included planning, urban design and heritage concerns:
a) The subject land was in a ‘minimal change’ area. It was therefore inappropriate and inconsistent with the planning scheme for the subject land to be treated as if it were in a ‘substantial change area’;[85]
[85]Ibid 14 [50].
b) Although much of the subject land is not occupied by heritage buildings, there was significant and contributory heritage fabric on and around the site;[86]
[86]Ibid 14 [50].
c) The Tribunal must apply terms such as ‘minimal change’ in the context of the height, scale and mass of the existing and emerging built form and other considerations including reasonable amenity expectations;[87]
[87]Ibid 16 [54].
d) The Tribunal did not accept the applicant’s submissions and evidence that the proposed development conserved and enhanced the heritage precinct;[88]
[88]Ibid 23 [89].
e) The new building was not of an appropriate scale, did not adopt upper level setbacks, and did not respond adequately in architectural terms to the values of the A2 building, the Greville Street and Charles Street landscapes, or HO456.[89]
[89]Ibid.
f) The Tribunal had key concerns that:
(i)the street wall was not sufficiently strong;
(ii)the proposed building had a high and striking visual prominence, made even worse by being suspended over the lower sloped bronze forms proposed at ground level to all facades;
(iii)the porte cochere was an overly dominant feature that imposed a sense of precarious bulk devoid of soffit;
(iv)the eight level form could not be adequately masked behind the five level form;
(v)the visual prominence accentuated by the visual contrast of a predominantly black and white colour palette was contrary to the Heritage Guidelines, and did not respect Charles Street or Greville Street; and
(vi)there were no landscape setbacks to respond to the building pattern, while the green wall vertical detailing was not sufficient to assist to break up the building mass. The proposal was not an adequate aesthetic response.[90]
[90]Ibid 23–24 [89].
98 The Tribunal also had major concerns about the heritage impacts of the proposed development:
a)as to the A2 building:
(i)the lift core protruded abruptly from the roof profile along the Charles Street elevation, and was unsympathetic to the diminutive retained building;
(ii)there were inadequate vertical or horizontal setbacks to enable the retained shop building to be conserved or enhanced as a significant element in HO456;
(iii)the cantilevered form above and to the east of the retained building overwhelmed the heritage fabric because of inadequate and irregular setbacks that visually compete with the retained fabric;
(iv)there was insufficient architectural dialogue between what is proposed to either side of the heritage corner and the parapeted corner of the A2 graded building; and
(v)the form was markedly at odds with other corners that frame the Charles/Greville Streets intersection in HO456 and notably the brick corner shop diagonally opposite.[91]
(b)as to the station:
(i)the scale and massing adjacent to the railway station far exceeds the existing condition and results in a form with a scale and prominence that has a negative impact on the heritage precinct around the station and the Porter/Greville Streets corner; and
(ii)the proposed development does not maintain a strong street wall to visually link HO456 and respect the high significance of HO126.[92]
[91]Ibid 24–25 [90].
[92]Ibid 25 [92].
99 In addition to these concerns, the Tribunal found that there were additional factors which made the building’s architectural response, mass and form unacceptable:
(a)a built form outcome that is higher and more visually commanding than the structures in the activity centre itself, was inconsistent with the context and setting;
(b)the street wall was not sufficiently strong and the upper levels were too prominent in the setting;
(c)the combination of materials and the way in which they were assembled in conjunction with shallow upper level setbacks competed with the street wall so that it is not read as a strong visual element along Greville Street;
(d)the eight storey wing and the overall architectural treatment visually competed with development in the activity centre;
(e)the sheer walls provide limited relief and the vertical elements above the porte cochere interrupt readability of the street wall; and
(f)while the building would be read in-the-round, the southern elevation was not sufficiently resolved.[93]
[93]Ibid 29 [106].
100 Without listing all of the planning, urban design and heritage concerns of the Tribunal, what I have set out above is more than ample to illustrate why the Tribunal ultimately held that the number and degree of the negative impacts associated with the proposed development were of such significance and magnitude that the development outcome was unacceptable. The negative impacts outweighed the benefits of what was otherwise a very worthwhile initiative. The extent and degree of negative impacts were such that the Tribunal considered that ‘substantial redesign was required to achieve an acceptable outcome’.
101 Having regard to the strength of the Tribunal’s concerns and the identified need for a significant redesign of the proposal, it is highly unlikely that greater emphasis on Ms Gall’s evidence or on the functional requirements of the proposed development could have persuaded the Tribunal to disregard all of the concerns it identified.
102 Even if there was an error as contended by the applicant, which I have rejected, the Tribunal’s findings as to the negative impacts of the proposal were central to its decision. The matters suggested to have been omitted from the Tribunal’s consideration made no difference to the outcome, having regard to the Tribunal’s crucial findings about the negative impacts of the proposed development.[94]
[94]See A.N.H. Nominees, above n 52, [12]; Forster v Legal Services Board (2013) 40 VR 587, [137]; Hulls, above n 37, 335 [9].
103 I am not persuaded that there was any vitiating error made by the Tribunal.
104 Ground 1 fails.
Ground 2 – the decision was legally unreasonable
Applicant’s submissions
105 The applicant submitted that:
a)the Tribunal decision was legally unreasonable in that it placed insufficient weight on the need for and social benefits of an aged care facility for the LGBTI community;
b)while it accepted the need for, and significant value of the facility as uncontested, it did not consider the built form and urban design outcomes by reference to functional requirements; and
c)the decision was unreasonable in that it lacked evidence or intelligible justification for the exclusion of functional requirements as a consideration relevant to the built form of the aged care facility.[95]
[95]Relying on Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Citizenship v Eden [2016] FCAFC 28.
Council’s submissions
106 The Council submitted that:
a)the Tribunal did take into account the need for, and functional requirements of, an aged care facility;
b)the applicant’s financial requirements dictated that it must have a facility with 150 beds and 33 independent living units. This in turn dictated built form;
c)the Tribunal heard from the parties and adopted the correct decision making process, ultimately reaching a conclusion adverse to the applicant; and
d)the Tribunal had not acted unreasonably in anything it did.
Objectors’ submission
107 The objectors submitted that:
a)the Tribunal decision showed a logical process of reasoning;
b)the Tribunal had acknowledged the need for equitable access to residential aged care services, and the fact that LGBTI people had not typically been catered for in residential aged care; and
c)the Tribunal had correctly set out its primary task, addressed the key issues, evaluated the planning context, considered policy as found in the planning scheme, noted the benefits of the proposed facility and weighed up the evidence.
108 In the Tribunal’s view, the net community benefit, after having regard to the competing factors, lay in the refusal of the permit application.
Relevant principles
109 In Peko-Wallsend, Mason J said:
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned...
It follows that, 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... a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.[96]
[96]Peko-Wallsend, above n 48, 40–41 (Mason J) (citations omitted).
110 In Maleckas v Secretary, Department of Justice, Kyrou J held that error of law is not demonstrated by the mere fact that the Tribunal gave a matter more or less weight than the plaintiff would have liked the Tribunal to give to that matter.[97]
[97][2011] VSC 227, [82].
111 To similar effect, in Psychology Board of Australia v Mair, Osborn J held that the weight that should be accorded to relevant factors in reaching an evidentiary conclusion is not a question of law. Likewise, the relative weight to be given to the relevant factors bearing on the exercise of a discretion does not raise a question of law unless the conclusion reached is not reasonably open.[98]
[98][2010] VSC 628, [61] (citation omitted).
Conclusion
112 I accept the Council’s and the objectors’ submissions. The Tribunal correctly identified its task as deciding whether the proposal would produce an acceptable outcome and a net community benefit, having regard to all of the relevant policies and provisions in the planning scheme. It comprehensively addressed the range of complex and competing considerations involved in the decision. It accepted the applicant’s case as to the significant benefits of the proposed facility to the LGBTI community. It undertook integrated decision making and balanced competing objections to determine community benefit and sustainable development.[99]
[99]Tribunal decision, 5 [6], 38 [157]–[161].
113 I have already rejected the applicant’s submission that the Tribunal did not consider the built form and urban design outcomes by reference to the functional requirements of an aged care facility, or the other matters on which the applicant relied.[100] The Tribunal did address all of these matters, but did not ascribe to them the weight that the applicant was hoping for, against competing objectives and policies. It considered that the proposal needed redesign to better conform with other objectives and policies in the planning scheme, and better reflect urban design and heritage objectives.
[100]At [90].
114 There was nothing irrational, unreasonable or unjust about the Tribunal’s reasoning process or decision. The negative impacts of the proposal (which the Tribunal carefully assessed) were too substantial and severe, resulting in a net community disbenefit.
115 I find that the Tribunal’s decision was reasonably open to it. It was not irrational or unjust, and was undertaken by a thorough and careful evaluation of net community benefit.
116 Ground 2 fails.
Grounds 3 and 4 – the reasons do not disclose a path of reasoning
117 Grounds 3 and 4 deal with similar issues. It is convenient to consider them together.
Applicant’s submissions
118 Ground 3 states that the Tribunal’s written reasons do not disclose a path of reasoning which demonstrates that it had considered a range of policies and integrated them into the decision making process.
119 The applicant concedes that the Tribunal’s reasons generally reference the correct policies and evidence with regard to zoning, overlays, and state and local policy. However, it contends that the reasons do not disclose how the Tribunal integrated these considerations in arriving at its decision. The applicant submits that a failure to provide a transparent explanation of the reasoning is an error of law.
120 Ground 4 states that the Tribunal’s reasons do not disclose a path of reasoning which evidenced the balancing of conflicting objectives in assessing net community benefits. Under this ground, the applicant submits that the Tribunal’s reasons do not disclose an intelligible or transparent path of reasoning which demonstrates how the Tribunal weighed up the positive and negative impacts of the proposal.[101]
[101]Relying on Hunter v Transport Accident Commission [2005] VSCA 1, [21]; Lucas v Transport Accident Commission [2003] VSC 97, [8] (Osborn J) (‘Lucas’); Caruso v Kite [2008] VSC 207, [32] (Kyrou J) (‘Caruso’).
Council and objectors’ submissions
121 Both the Council and the objectors submitted that the Tribunal’s reasoning was clear and unambiguous. The path of reasoning and the process of integrated decision making are evident from the decision. They involved a comprehensive and careful analysis of relevant competing policies, followed by an assessment of net community benefit.
Relevant principles
122 In Caruso, Kyrou J said:
Section 117(5) of the VCAT Act provides that, where the Tribunal gives written reasons, it must include in those reasons its findings on material questions of fact. The reasons of the Tribunal do not need to be as detailed as judgments of this Court and should not be scrutinised over-zealously. However, the Tribunal’s reasons must allow the logic of its decision and the process of reasoning to be followed, especially in relation to important points and conclusions, and must set out the legal basis for the Tribunal’s decision. The Tribunal must comply with the above requirements in the context of its statutory obligation to 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. Whilst it is acknowledged that reconciling the above may sometimes prove difficult, the Tribunal should bear in mind that inadequate reasons for decision may lead, as in this case, to an appeal to this Court and cause additional delay and expense for the parties.[102]
[102]Caruso, above n 101, [32].
123 In Lucas, Osborn J said:
It is nevertheless generally incumbent upon a tribunal such as VCAT which is obliged to give reasons, and exercises a quasi-judicial function in cases where argument and analyses are advanced on either side, to enter into the issues canvassed before it and explain why it prefers one case over the other. As was stated of the obligations of a Court in Flannery & Anor v Halifax Estate Agencies Ltd:
This is likely to apply particularly in litigation whereas here there is disputed expert evidence; but it is not necessarily limited to such cases.[103]
[103]Lucas, above n 101, [8].
Conclusion
124 I accept the submissions by the Council and objectors. I find that the Tribunal’s reasoning was comprehensive and thorough. It identified its task and relevant policies correctly. It fully addressed relevant issues and in turn arrived at the ultimate conclusion that the negative impacts of the proposal outweighed the benefits. It gave significant weight to the need and benefits to the LGBTI and wider community if the proposal was approved. It concluded by indicating that the proposal had prospects of success following a redesign of the proposal.
125 For these reasons, and for the reasons that I have given earlier, grounds 3 and 4 fail.
Grounds 5, 6 and 7 – the Tribunal decision as to heritage and demolition did not take into account all relevant considerations, was not reasonably open and denied the applicant natural justice
Applicant’s submissions
126 Ground 5 states:
The Tribunal erred in law by assessing demolition of 44-46 Charles Street by reference to a single decision guideline under clause 43.01 and by failing to take into account all of the considerations directed by the Planning and Environment Act and the Stonnington Planning Scheme to be taken into account for an application under the heritage overlay.
127 Ground 6 states that the Tribunal’s decision to refuse a permit for the demolition of the building at 44-46 Charles Street was not reasonably open.[104] According to the applicant, that finding was unreasonable because:
(a)no party to the hearing opposed demolition of 44-46 Charles Street;
(b)two heritage architects gave evidence at the Tribunal hearing and supported demolition;
(c)the Tribunal did not put to the parties that it considered that the demolition of 44-46 Charles Street would adversely affect the significance of the heritage place; and
(d)both heritage architects gave evidence that it was not feasible or acceptable to retain 44-46 Charles Street for an aged care facility.[105]
[104]Relying on 1045 Burke Road, above n 43, [57]; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; Hoser v Department of Sustainability and Environment [2014] VSCA 206, [29].
[105]Relying on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 590-591; and Towie v Medical Practitioners’ Board of Victoria [2008] VSCA 157, [36].
128 Under ground 7, the applicant contended that it was denied natural justice as the Tribunal did not put the parties on notice that it considered the demolition of 44-46 Charles Street would adversely affect the significance of the heritage place.
Council and objectors’ submissions
129 The Council and the objectors submitted that:
a)the Tribunal had considered all applicable heritage policies;
b)the Tribunal was entitled to reject the applicant’s expert evidence and conclude that demolition of the heritage building at 44-46 Charles Street would adversely affect the heritage place; and
c)the applicant was always aware that the demolition of the heritage building at 44-46 Charles Street would be a significant issue before the Tribunal even if no party appearing supported the retention of this building.
Conclusion as to ground 5
130 The Tribunal referred to and considered cl 43.01, 15.03 and 21.03 of the planning scheme, as well as local heritage policy.[106] The Tribunal stated that it would not recite all of the applicable policies and provisions but had considered them fully.[107]
[106]Tribunal decision, 16–17 [58].
[107]Ibid.
131 After setting out cl 22.04, the Tribunal referred to the Heritage Guidelines[108] as relevant through cl 22.04 and stated that they had been ‘considered as well’. The Tribunal noted that restoration and sensitive adaptation of C graded buildings were preferred even though such buildings may be replaced by new buildings of an appropriate scale, setback and character.[109]
[108]City of Stonnington, Heritage Guidelines, 2 June 2002.
[109]Tribunal decision, 17 [59].
132 The Tribunal set out in full the statement of significance for HO456.[110] The Tribunal commented on the heritage contribution of a number of properties, and the heritage expert evidence. It observed that 44–46 Charles Street made a higher contribution than 42 Charles Street, discussing some of the heritage features and elements.[111]
[110]Ibid 17–18 [61].
[111]Ibid 19 [66].
133 The Tribunal agreed with the heritage experts called by the applicant that other parts of the precinct may make a higher contribution than the buildings on the subject land, but contributory values were ascribed to the commercial forms and significant values were ascribed to the ‘rare’ corner shop at the Greville and Charles Street intersection.[112]
[112]Ibid 19 [67].
134 After noting that the purpose of cl 43.01 was to conserve and enhance those elements which contribute to the significance of heritage place, and to ensure that development does not adversely affect the significance of heritage place, the Tribunal considered the heritage issues relating to the affected buildings in the heritage precinct.[113]
[113]Ibid 19–21 [68]–[81].
135 The Tribunal analysed the architectural contribution of 44–46 Charles Street by carefully assessing the statement of significance for HO456. It also assessed this property having regard to what it described as ‘the decision guideline’ in cl 43.01 and the Heritage Guidelines.[114] While the Tribunal referred to ‘the decision guideline’ in the singular, it is plain from the range of considerations in the Tribunal’s reasons that it considered each of the decision guidelines in cl 43.01-4.
[114]Ibid 20 [75], 21 [79]–[81].
136 The Tribunal’s reasons also include consideration of the relevant parts of the state and local planning policy framework, the heritage significance of the various properties affected by the proposal, the statement of significance for HO456, the location, built form and appearance of the proposed development, whether the proposed development was in keeping with character and appearance of adjacent buildings and the heritage place, and whether the demolitions and works proposed would adversely affect the significance or appearance of the heritage place.
137 Quite apart from its own evaluation and analysis, the Tribunal was assisted in its heritage evaluation of 44–46 Charles Street by the reports and expert evidence of two heritage consultants called by the applicant, and an architect and urban designer called by the objectors.
138 I am not satisfied that any relevant heritage policy or considerations, or any relevant consideration under the PE Act or the planning scheme, was overlooked by the Tribunal, or not taken into account. Certainly, none was identified in submissions before me. The reverse is the case. Assisted by six expert witnesses called by the applicant alone, it was a case where nothing that could be put to the Tribunal was omitted.
Conclusion as to grounds 6 and 7
139 Demolition of a heritage property, even a contributory property, within an area protected by a heritage overlay is almost always a controversial regulatory and community issue. As far back as January 2016, Mr Ray Tonkin, the Council’s heritage adviser brought the question of the demolition of 44–46 Charles Street into sharp focus when he advised the Council:
Of the C graded buildings, 44-46 Charles Street is an imposing and well designed Edwardian factory building…which despite the comments in the Heritage Impact Statement is largely intact. The overpainting of the façade and alterations to some windows and doors are hardly sufficient to downgrade its importance.
…It could be argued that in other contexts a building as imposing and intact as this could be graded B.
The Heritage Impact Statement dismisses its importance because it couldn’t be retained as part of this development. This misses the point of the HO and the Heritage Guidelines which are clear in their intention to maintain elements of heritage significance, not to demolish them because an alternative proposal for a site doesn’t accommodate them.
140 At the Council meeting of 5 September 2016, the Council was advised that its heritage adviser did not support the application. The heritage adviser’s opinion was that the proposal was unacceptable in terms of the loss of heritage fabric in this significant precinct. The report stated that the proposed building fails to deal with the questions of built form, setbacks and massing that are appropriate in an area of heritage significance.
141 Ground 4 of the Council’s notice of refusal of the application for a permit stated:
The extent of loss of heritage fabric on the site is inappropriate…It is not responsive to the heritage character of the area and fails to comply with the policy direction at Clause 22.04.
142 Since 2016, it has been plain that heritage issues were at the forefront, including the demolition of 44–46 Charles Street. It was most likely for this reason that the applicant retained two heritage consultants to give expert evidence on its behalf at the Tribunal hearing.
143 The applicant’s heritage consultants contested the opinion of the Council’s Heritage Adviser.
144 The first heritage consultant described 44-46 Charles Street as ‘a representative example’ of its type. He did not consider that it had ‘strong potential to reach the threshold of local significance’.
145 The second heritage consultant stated that retention of 44–46 Charles Street was not possible save for the façade. In his view, this was not a good heritage outcome. He referred to the criticism by the Council’s heritage adviser of the extent of demolition of 44–46 Charles Street as ‘expected’. Unless a meaningful section of the building could be retained, in this case 3 to 4 metres in depth, he advised that he would prefer to have the building fully recorded, demolished and interpreted as a bygone aspect of the site’s history rather than a token gesture of façade retention.
146 During their evidence, the heritage consultants were asked questions by the Tribunal about the C graded buildings on the subject land and whether the extent of the retention and demolition was justifiable and reflected the Heritage Guidelines. Senior counsel for the applicant addressed the Tribunal about the Heritage Guidelines and the proposed demolition of 44–46 Charles Street in submissions to the Tribunal.
147 It is plain that heritage issues, including the demolition of 44–46 Charles Street, were a central focus of the Tribunal proceeding. There is no substance in the suggestion that the applicant was denied natural justice concerning the demolition of 44–46 Charles Street. The applicant’s senior counsel and heritage consultants addressed the issue in submissions and evidence. Mr Tonkin’s advice to the Council was in evidence before the Tribunal. It was clearly open to the Tribunal to accept it. In addition to that, the Tribunal had the benefit of inspection of the subject land itself.
148 The Tribunal was entitled to accept and give weight to the opinion and views of the Council’s heritage adviser. There was a substantial evidentiary basis for the conclusion expressed by the Tribunal concerning the demolition of 44–46 Charles Street. The Tribunal is an expert tribunal, and is entitled to inform itself as it sees fit.[115] It is entitled to act on the basis of its own expertise.[116] It was entitled to prefer the opinion of the Council’s heritage adviser to that of the applicant’s heritage consultants.
[115]VCAT Act s 98(1).
[116]S v Crimes Compensation Tribunal [1998] 1 VR 83, 90 (Phillips JA).
149 Grounds 5, 6 and 7 fail.
Conclusion
150 Each of the proposed grounds of appeal fails.
151 I will grant leave to appeal on grounds 1 and 2 but dismiss the appeal on those grounds. Leave to appeal is refused on all other grounds.
SCHEDULE OF PARTIES
| RESIDENTIAL AGED CARE SERVICES PTY LTD (ACN 075 782 393) | Plaintiff |
| STONNINGTON CITY COUNCIL | First named Defendant |
| PUBLIC TRANSPORT VICTORIA | Second named Defendant |
| VICTRACK | Third named Defendant |
| STEPHEN JOLSON | Fourth named Defendant |
| LISA JOLSON | Fifth named Defendant |
| SUSIE NATHAN | Sixth named Defendant |
| GREVILLE STREET NOMINEES PTY LTD | Seventh named Defendant |
| ANDREW PARR | Eighth named Defendant |
| JOHUA FAST | Ninth named Defendant |
| FELICITY FAST | Tenth named Defendant |
| COSTA LAKOUMENTAS | Eleventh named Defendant |
| JUSTIN SPARROW | Twelfth named Defendant |
| MARK EKKEL | Thirteenth named Defendant |
| KAREN KIM | Fourteenth named Defendant |
| STAN TABAIN | Fifteenth named Defendant |
| JEANNE DALY | Sixteenth named Defendant |
| ALOMA TREISTEER | Seventeenth named Defendant |
| KARIN MOWLEM | Eighteenth named Defendant |
| MARGARET CARTLEDGE | Nineteenth named Defendant |
| CATE TAHENY | Twentieth named Defendant |
| SUSAN WALD | Twenty-first named Defendant |
| PATRICK CONWAY | Twenty-second named Defendant |
| CHRISTINE SKIPPER-CONWAY | Twenty-third named Defendant |
| PAUL HARRICK | Twenty-fourth named Defendant |
| JANITA HARRICK | Twenty-fifth named Defendant |
| RAY DEMKIW | Twenty-sixth named Defendant |
| CAROLINE WEST | Twenty-seventh named Defendant |
| BEV GILL | Twenty-eighth named Defendant |
| DENISE WRIGHT | Twenty-ninth named Defendant |
| BRAD GILL | Thirtieth named Defendant |
| JAMES WEGHORN | Thirty-first named Defendant |
| MATTHEW HEINE | Thirty-second named Defendant |
| PETER KATSIERIS | Thirty-third named Defendant |
| ANASTASIA KATSIERIS | Thirty-fourth named Defendant |
| KON KATSIERIS | Thirty-fifth named Defendant |
| MICHAEL LEIGHTON | Thirty-sixth named Defendant |
| KATE POINTON | Thirty-seventh named Defendant |
| IAN ANNE | Thirty-eighth named Defendant |
| ALISON MCATAMNEY | Thirty-ninth named Defendant |
| BECCA HETREL | Fortieth named Defendant |
| LYNDIE BRAY | Forty-first named Defendant |
| PAUL IVANY | Forty-second named Defendant |
| SUSIE IVANY | Forty-third named Defendant |
| ANTHONY ADAMS | Forty-fourth named Defendant |
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