Russell v Murrindindi Shire Council
[2017] VSC 468
•11 August 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
S CI 2017 01866
| JOHN RUSSELL | Applicant |
| v | |
| MURRUNDINDI SHIRE COUNCIL | First Respondent |
| KERRY TOLL | Second Respondent |
| PETER TOLL | Third Respondents |
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JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 August 2017 |
DATE OF JUDGMENT: | 11 August 2017 |
CASE MAY BE CITED AS: | Russell v Murrindindi Shire Council |
MEDIUM NEUTRAL CITATION: | [2017] VSC 468 |
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PLANNING AND ENVIRONMENT — Application for leave to appeal from the Victorian Civil and Administrative Tribunal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 — Three lot subdivision — Development approval already granted —Whether the Tribunal Member considered how the planned subdivision effected the urban landscape objectives in cl 56.05 that provide for attractive and continuous landscaping in streets and public open spaces — Leave to appeal refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | For himself | |
| For the Respondents | No appearances |
HER HONOUR:
Application for leave to appeal
The applicant seeks leave to appeal against the whole of the order of the Victorian Civil and Administrative Tribunal made on 21 April 2017 granting a permit for a three lot subdivision and the removal of an existing easement at 140 High Street, Yea.
The applicant objected to the subdivision proposal, which was approved by the Council. A permit to develop the land in question by constructing three dwellings had already been granted.
The applicant applied to the Tribunal to review the Council’s decision to grant the subdivision permit.
The application for review was heard in the Tribunal over two days, on 28 March 2017 and 20 April 2017. The applicant attended the first day only.
The Tribunal’s reasons for decision[1] record that the first day was taken up with ruling on five witness summonses issued by the applicant and with giving the applicant the opportunity to inspect the ‘job file’ of the project land surveyors and put in place arrangements for certain documents from that file to be copied and circulated.
[1]Russell v Murrindindi Shire Council (VCAT Proceeding P1832/2016, 21 April 2017) (‘Reasons’).
The Tribunal ruled that the witness summonses had either been fully satisfied or should otherwise be set aside on the basis that they were not relevant to any legitimate purpose in the proceeding.
The applicant subsequently sought to issue a sixth witness summons, which was refused at a practice day hearing on 10 April 2017. Thereafter, the applicant applied for an adjournment, which was also refused. He advised that he would not be attending the further hearing of his application for review scheduled for 20 April 2017.
On that second hearing day, both the Council and the permit applicants were represented, but, as discussed, there was no appearance by the applicant Mr Russell. The permit applicants made submissions of a general nature in support of the proposal, and the Council and the permit applicants held discussions regarding a permit condition.
The Tribunal found that it was acceptable and appropriate that the proposed three lot subdivision and the removal of the existing easement be approved, first and foremost because a planning permit had already been granted for the development of the intended three units. The Tribunal observed that the debate was no longer about whether any dwellings should be built on the subject land, but rather whether it was acceptable to split the title into three and remove the existing easement.[2] The Tribunal also commented that it was rare for subdivision planning applications to be brought on review to the Tribunal where the necessary development approval had already been granted.[3]
[2]Ibid [16].
[3]Ibid.
In the Reasons, the Tribunal member stated that he had taken into account the written objections made by Mr Russell in lodging his application for review, and he had taken into account what was said by Mr Russell on the first hearing day. The Tribunal member considered the proposed plan of subdivision, which showed that the new buildings and associated private open space areas would be accommodated within the proposed new boundaries and that there was no need for any common property areas having regard to the site’s corner position and the arrangements for vehicle access. The Tribunal member also considered the easement, concluding that a thorough and reliable approach had been taken to resolving the problem of the existing title easement not matching up with the location of the sewerage pipe affecting the subject land.[4]
[4]Ibid [21].
The Reasons then set out the following general points in favour of the approval of the subdivision proposal:[5]
[5]Ibid [24].
● It had council support;
●There was no inconsistency between the proposal and the development permit;
●No relevant statutory authority or utility had objected to the proposal;
●The proposal did not require vegetation removal of any consequence;
●Each new lot would have its own street frontage;
●The creation of three new lots being smaller than traditional larger lots featuring detached single dwellings would create greater housing diversity in Yea and contribute to improved housing affordability, which was consistent with cl 21.04-1 of local policy;
●The proposal was consistent with the objectives of cl 56 of the General Residential Zone and with the associated relevant State and local policies;
●The approval of the proposal would facilitate a greater number of occupants being able to take advantage of the well serviced location;
●Other than the applicant, no other neighbour had opposed the proposal;
●The zoning of the land anticipated some degree of greater residential intensification;
●There were no overlay planning controls that might otherwise constrain the redevelopment or subdivision;
●The land was a very generous residential lot and each new lot would provide for a good size new dwelling, a very adequate amount of private space and appropriate on-site vehicle access;
●The final version of the permit conditions would include a permit condition requiring the permit holder to make a 3 per cent open space contribution, which would create a broader benefit.
The Tribunal concluded as follows:[6]
To the extent that Mr Russell’s objections raised in his Application for review documentation in this proceeding referred to points like ‘overdevelopment’, ‘high density living’, the lack of any elevation plans or the new dwellings allegedly being likely to ‘create a ghetto type situation’, these points are misguided because they go to ‘development’ rather than ‘subdivision’ and a development permit for the three dwellings on the subject land has already been issued. It is not a relevant planning consideration for the Tribunal whether or not there are any footpaths next to the subject land.
[6]Ibid [25].
Although the applicant did not attend the Tribunal on the day that substantive submissions were made about the sub-division proposal, the Tribunal had regard to his objections.
The applicant now seeks to appeal the Tribunal’s decision and order under s 148 of the Victorian Civil and Administrative Tribunal Act 1998. He asks for the Tribunal’s decision to grant a subdivision permit to be set aside and for the matter to be remitted to the Tribunal to be heard and determined again.
The applicant requires the leave of the Court in order for the proposed appeal to go ahead.
The principles to be applied in considering an application for leave to appeal against a decision of the Tribunal were established in Secretary to the Department of Premier and Cabinet v Hulls.[7] They were succinctly expressed by Garde J in Zumpano v Banyule City Council:[8]
A pivotal requirement is that an Applicant must identify a question of law for which there is a real or significant argument to be put that error exists. The Court will also have regard to the justice of the particular case, and whether the applicant has identified a question of law that is of general or public importance. The Applicant must show that there is sufficient doubt attendant the question of law to justify the grant of leave.
[7][1999] 3 VR 331.
[8][2016] VSC 420 [10] (citations omitted).
It is necessary to consider the proposed grounds of appeal and questions of law to determine whether the Tribunal’s decision is attended by sufficient doubt to justify the grant of leave.
On 18 May 2017, the applicant filed an originating motion with an affidavit in support, and a draft notice of appeal. The draft notice of appeal includes a photocopy of part of the affidavit in support which sets out proposed grounds of appeal.
These proposed grounds of appeal contain a range of un-particularised allegations. It is alleged, in general terms, that there was ‘judicial error’ and that the decision was ‘not lawful’. It is alleged that the Tribunal ‘had the wrong meaning of legislation’ and ‘the wrong application of legislation’; that the Tribunal member failed to take into account relevant evidence, failed to require subpoenas for production to be enforced or require persons to attend; that the Tribunal considered irrelevant evidence, exercised power improperly, acted in bad faith, exhibited a perceived bias, failed to realise the limitations of legislation, was manifestly unreasonable and failed to give proper weight to ‘highly significant factors’. It is alleged that the applicant was wrongly refused an adjournment and was unable to present his evidence-in-chief at the final hearing. Generally, it is alleged that the applicant was denied procedural fairness.
These proposed grounds of appeal are not sufficiently specific to enable assessment of whether the Tribunal erred in law in any way. They do not rise above bare assertion.
At a directions hearing on 26 May 2017, the applicant was ordered to file and serve an amended originating motion adding the permit applicants as parties and clearly and succinctly identifying the questions of law and grounds of appeal that he wished to agitate.
The Court also ordered the applicant to file and serve an affidavit exhibiting a transcript of the Tribunal hearing and any other relevant materials upon which he sought to rely by 7 July 2017. The need for the transcript of the Tribunal hearing to be before the Court (or, failing that, the audio tapes of the hearing) arose because the (then) proposed notice of appeal contained grounds that in substance complained that the conduct of the Tribunal hearing was unfair to the applicant.
The applicant has now filed and served an amended originating motion. It sets out a single ground of appeal and identifies three related questions of law.
The proposed ground of appeal is that the Tribunal failed to consider how the proposed subdivision affected the urban landscape objectives in cl 56.05 that relevantly provide for attractive and continuous landscaping in streets and public open spaces that contribute to the character and identity of existing or preferred neighbourhood character in existing urban areas. It is also alleged that the Tribunal failed to consider that the application for the subdivision failed to describe the abutting street widths, materials and detailing in the surrounding area.
The questions of law identified raise issues concerning the status and construction of the urban landscape policy in cl 56.05 of the Planning Scheme.
It will be observed that the ground of appeal now proposed to be agitated by the applicant is entirely different from the grounds set out in his earlier draft notice of appeal. It is limited to whether the Tribunal failed to take into account a relevant consideration — being a policy in the Murrindindi Planning Scheme — in granting the permit for the subdivision.
It will also be noted that the Tribunal stated in the Reasons that it considered that the proposal was consistent with the objectives of cl 56.[9] I infer that the Tribunal considered the objectives in cl 56 as a whole, including the objectives of cl 56.05.
[9]Reasons, [24].
Clause 56 is generally concerned with residential subdivision. The provisions of cl 56 contain ‘objectives’ that describe the desired outcome to be achieved in the completed subdivision and ‘standards’ which contain the requirements to meet the objective.
Clause 56.05 concerns ‘urban landscapes’. It is in two parts: the first part describes integrated urban landscape objectives and contains Standard C12; the second part describes public open space provision objectives and contains Standard C13. Only the first part, which is in cl 56.05-1, has any relevance to the subdivision proposal. The proposed three lot subdivision does not raise any issues concerning the provision of public open space and cl 56.05-2 is not a clause in respect of which the General Residential Zone requires the standards to be met for a three lot subdivision.
As to cl 56.05-1, the only objective that could have any bearing on the subdivision proposal is that of providing ‘attractive and continuous landscaping in streets … that contribute(s) … to existing or preferred neighbourhood character in existing urban areas’.
That is an objective which, taken in isolation, does not require any particular thing to be done or not to be done. Standard C12 is the part of cl 56.05-1 that specifies things that need to be done. It requires an application for subdivision to be accompanied by a landscape design and then sets out in a number of dot points what the landscape design should include or achieve. The requirement to provide a landscape design applies to an application for a subdivision that ‘creates streets or public open space’. The three unit subdivision proposal that was before the Tribunal did neither.
The questions of law identified make it clear that in raising the urban landscaping policy, the applicant is seeking to re-agitate his concerns about over development and ‘high density living’. These were concerns that should have been raised at the development proposal stage. As the Tribunal indicated, questions of neighbourhood character and the effect of the three unit development on the streetscape will have been considered as part of the development application, an application that the applicant did not challenge.
Furthermore, based on what the Reasons reveal about the applicant’s objections in the Tribunal, he made no objection that the subdivision proposal did not meet the urban landscape objectives in cl 56.05.
The Tribunal considered the specifics of the subdivision proposal and the relevant planning controls, including cl 56. It did so having regard to the fact that development approval had already been given for the construction of three detached dwellings on the land. The Tribunal considered the increase in housing density, stating that the creation of three new lots that were smaller than traditional larger lots featuring detached single dwellings would create greater housing diversity in Yea and contribute to improved housing affordability, which was consistent with cl 21.04-1 of local policy, and that the zoning of the land anticipated some degree of greater residential intensification.[10]
[10]Ibid.
The Tribunal stated that it had considered a range of policies in the Murrindindi Planning Scheme. It was not obliged to refer to every one of them in its Reasons.
I am not persuaded that there is a significant argument to be put that the Tribunal erred in the manner in which it carried out its assessment of the subdivision proposal.
Furthermore, even if the Tribunal erred in some way by not expressly referring to and discussing the objective or objectives in cl 56.05, this would not be a vitiating error. I am not persuaded that it could have made any difference to the outcome of the application for review in circumstances where the Tribunal considered the objectives of cl 56 generally and a development application had already been approved. The question of neighbourhood character was required to have been resolved as part of the development application approval.
As a final matter, the applicant has included a ground that the Tribunal failed to consider that the application for the subdivision failed to describe abutting street widths, material and detailing in the surrounding area. The Court has no evidence of what was or was not contained in the subdivision plans. This ground is unsupported.
In my view, the Tribunal’s decision is not attended by sufficient doubt to justify the grant of leave to appeal. Moreover, there is nothing in the overall justice of the situation that would require leave to appeal to be granted.
Leave to appeal is refused and the proceeding is dismissed.
Adjournment application
At the commencement of the hearing of the application for leave to appeal, the applicant stated that he wished to apply for an adjournment in order to have his barrister appear to make the application for leave.
The application for an adjournment was refused.
The applicant made it plain that he had not taken any steps to contact his barrister to ask whether the barrister would be available (or willing) to appear. The applicant had no idea if or when his barrister might be available. In other words, he had left it until the commencement of the hearing to make any inquiry about the availability of his barrister.
No reason was given by the applicant as to why inquiries were not made much earlier.
The application for leave to appeal was filed on 18 May 2017. A lengthy directions hearing was conducted on 26 May 2017 during which the application was listed to be heard on 4 August 2017. The hearing date was discussed and agreed at the directions hearing.[11] Orders fixing the hearing date were sent to the applicant by express post that afternoon. However, on 4 August 2017, the applicant failed to appear. The Court, on its own motion, adjourned the hearing of the application for leave to 11 August 2017.
[11]Transcript, Russell v Murrindindi Shire Council (Supreme Court of Victoria, 26 May 2017) 34.
The applicant was contacted by telephone about 11:40 am on 4 August 2017 and advised of the adjournment and the new hearing date. The order adjourning the hearing and fixing the new hearing date was sent to the applicant by registered post.
The applicant had ample time in which to retain counsel to appear at the hearing or, at the very least, ascertain when counsel was available so that any application for a further adjournment could be made on an informed basis. However, he left it until the day of the hearing to make any inquiry of counsel. The Court was left in the position of having no idea when the application, if adjourned, might be able to be heard. There was no indication when the applicant’s barrister might be available. Indeed, there was no guarantee that the barrister would be available at all.
Having regard to the opportunities the applicant had had to organise representation and his failure to give any explanation of why he had not done so, along with time that the Court had already spent waiting for the applicant to put his house in order, the uncertainty about how long the adjournment would need to be and, indeed, whether an adjournment would serve any useful purpose at all, the adjournment was refused.
I note, in regard to the applicant putting his house in order, that he has had the assistance of the Court’s Self-represented Litigants Coordinator, including guidance with respect to preparation of the documents for his application. He has been given every possible assistance by the Court and he has had, on his own evidence, advice from experienced and competent counsel.
The applicant made much of the fact that he was not able to obtain audio discs of the Tribunal hearing. He blamed the Court for this. I do not understand the applicant to have given that as a reason for an adjournment, but I would not, in any event, grant an adjournment for that reason. Having regard to the single ground of appeal raised in the Amended Originating Motion, the transcript and/or audio discs of the Tribunal hearing were not required to decide the matter.
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