Seacrest Pty Ltd v Banyule City Council
[2005] VSC 384
•23 September 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6107 of 2005
| SEACREST PTY LTD AND BRATSK PTY LTD | Plaintiffs |
| v | |
| BANYULE CITY COUNCIL AND N.K. INVESTMENTS ONE PTY LTD | Respondents |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 AUGUST, 5 SEPTEMBER 2005 | |
DATE OF JUDGMENT: | 23 SEPTEMBER 2005 | |
CASE MAY BE CITED AS: | SEACREST PTY LTD & ANOR v BANYULE CITY COUNCIL & ANOR | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 384 | 1st Revision: 29 May 2006 |
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Application for leave to appeal pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 – Application for leave to appeal treated as the hearing of the appeal – Interpretation of agreement entered into pursuant to s.173 of the Planning and Environment Act 1988 – Basal obligation to meet the requirements for car parking under planning scheme – No error of law demonstrated – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr H. McM. Wright QC with Mr R. Appudurai | Rigby Cooke |
| For the First Respondent | Mr. C. Wren | Best Hooper |
| For the Second Respondent | Ms M. Quigley SC with Ms S. Porritt | Ebsworth & Ebsworth |
HIS HONOUR:
The plaintiffs seek leave pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 to appeal a decision of the Victorian Civil and Administrative Tribunal ('the Tribunal') made on 20 April 2005 pursuant to which the Tribunal directed that a planning permit issue for a supermarket based development at Ivanhoe. The permit would allow for "a mixed use development comprising the development of the land (buildings and works) for the purpose of a multi-level building incorporating retail (including supermarket), basement car parking and residential apartments, use of the land for dwellings (residential apartments), a reduction in the standard car parking requirements, vegetation removal, removal of easements and provision of business identification signs."
The plaintiffs are commercial competitors of the permit applicant and having regard to the history of the matter and the obvious divergence of the interests of the parties with respect to delay, I have sought to expedite proceedings in this Court by treating the application for leave to appeal as the hearing of the appeal.
The plaintiffs contend that the Tribunal erred in law because it concluded that an agreement entered into pursuant to s.173 of the Planning and Environment Act 1987 ("the Act") relating to the application land did not preclude the grant of the permit.[1]
[1]Section 173 of the Act provides:
"(1) A responsible authority may enter into an agreement with an owner of land in the area
covered by a planning scheme for which it is a responsible authority.
(2) A responsible authority may enter into the agreement on its own behalf or jointly with any other person or body.
(3) A responsible authority may enter into an agreement under sub-section (1) with a person in anticipation of that person becoming the owner of the land.
(4) Despite anything in this Division, if an agreement entered into with a purchaser in anticipation of the purchaser becoming owner is registered by the Registrar of Titles, it does not bind the vendor unless the vendor assumes the purchaser's rights and obligations under the agreement.
In turn, s.174 further provides:
(1) An agreement must be under seal and must bind the owner to the covenants specified in the agreement.
(2) An agreement may provide for any one or more of the following matters—
(a) the prohibition, restriction or regulation of the use or development of the land;
(b) the conditions subject to which the land may be used or developed for specified purposes;
(c) any matter intended to achieve or advance—
(i) the objectives of planning in Victoria; or
(ii) the objectives of the planning scheme or any amendment to the planning scheme of which notice has been given under section 19;
(d) any matter incidental to any one or more of the above matters."
More specifically the Plaintiffs contend:
(a)that s.61(4) of the Act prohibits the grant of a permit because such grant would allow something which would result in a breach of a registered restrictive covenant;[2]
(b)registered restrictive covenant is defined to mean "a restriction within the meaning of the Subdivision Act 1988";
(c)a restriction is in turn defined by the Subdivision Act 1988 to mean "a restrictive covenant or a restriction which can be registered or recorded in the register under the Transfer of Land Act 1958";
(d)a s.173 agreement falls within this definition by reason of the provisions providing for its registration contained in s.181 of the Act; and
(e)the proposed development would be in breach of the s.173 agreement because it would provide insufficient parking.
[2]Section 61(4) of the Act provides:
"If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant."
The defendant permit applicant and the responsible authority contend that the Tribunal was correct to conclude:
(a)that the relevant s.173 agreement was not a restriction within the meaning of the relevant statutory definitions; and
(b)at the time of the Tribunal's decision it was correct to conclude that the permit would not result in a state of affairs breaching the s.173 agreement.
The defendants further contend that in any event the relevant s.173 agreement has, since the Tribunal's decision, been ended by agreement between the responsible authority and all persons bound by any covenant in the agreement in accordance with s.177 of the Act.
In my view, the short answer to this case is that the proposal permitted would not result in a breach of the s.173 agreement in force at the time of the decision. It is in the circumstances unnecessary to decide the other matters in issue between the parties.
The Section 173 Agreement
Recital D to the s.173 agreement records that on 5 July 1999 the responsible authority adopted a set of Urban Design Guidelines for Ivanhoe Shopping Centre a copy of which is attached to the agreement as an annexure.
By cl.3.1(2) of the s.173 agreement the owner covenants and agrees that it will:
"ensure the Development is generally in accordance with the Design Guidelines and in particular the site specific guidelines for the Land as detailed on pages 24-28 (both inclusive) of the Design Guidelines; … "
The Design Guidelines provide:
"In addition to meeting the carparking requirements of the Banyule Planning Scheme, development at this site shall incorporate 35-40 car parking spaces which are for general public use and available for their use at all times. These spaces will be provided at no cost to the Council by the Developer and title transferred to the Council."
The car parking requirements of the Banyule Planning Scheme are relevantly set out in cl.52.06 of that scheme.
The Terms of Clause 52.06
Clause 52.06 of the planning scheme relates specifically to car parking. It states as its purpose:
"To ensure that car parking facilities are provided in accordance with:
· The State Planning Policy Framework and the Local Planning Policy Framework including the Municipal Strategic Statement and local planning policies.
· Any parking precinct plan.
To provide the opportunity to use parking precinct plans in appropriate locations.
To promote the efficient use of car spaces through the consolidation of car parking facilities.
To ensure the provision of an appropriate number of car spaces having regard to the activities on the land and the nature of the locality.
To ensure that the design and location of car parking areas:
· Does not adversely affect the amenity of the locality, in particular the amenity of pedestrians and other road users.
· Achieves a high standard of urban design.
· Creates a safe environment for users, particularly at night.
· Enables easy and efficient use.
· Protects the role and function of nearby roads.
· Facilitates the use of public transport and the movement and delivery of goods."
In turn cl.52.06-1 provides:
"Provision of car spaces
A new use must not commence or the floor area of an existing use must not be increased until the required car spaces have been provided on the land.
Where the floor area occupied by an existing use is increased, the parking requirement only applies to the floor area of any extension of the use or site area provided the existing number of car spaces is not reduced.
Number of car spaces required
The table at Clause 52.06-5 sets out the number of car spaces required for uses not covered by a parking precinct plan or another clause. The requirement for car spaces for a use listed in column 1 of the table is the product of columns 2 and 3 of the table.
A permit may be granted to reduce or to waive the number of car spaces required by the table.
Where a use is not specified in the table at Clause 52.06-5, an adequate number of car spaces must be provided to the satisfaction of the responsible authority.
These requirements do not apply if there is a parking requirement for the particular use under another clause or in a parking precinct plan.
Decision guidelines
Before a requirement for car spaces is reduced or waived, the applicant must satisfy the responsible authority that the reduced provision is justified due to:
· Any relevant parking precinct plan.
· The availability of car parking in the locality.
· The availability of public transport in the locality.
· Any reduction in car parking demand due to the sharing of car spaces by multiple uses, either because of variation of car parking demand over time or because of efficiencies gained from the consolidation of shared car parking spaces.
· Any car parking deficiency or surplus associated with the existing use of the land.
· Any credit which should be allowed for a car parking demand deemed to have been provided in association with a use which existed before the change of parking requirement.
· Local traffic management.
· Local amenity including pedestrian amenity.
· An empirical assessment of car parking demand.
· Any other relevant consideration."
The uses proposed in the present case, being uses for the purposes of shop and dwelling, are provided for in the table. The table specifies a rate of two car spaces to each dwelling other than a caretaker's house if there are at least two (dwellings) on a lot. It further specifies eight car spaces to each 100 square metres of leasable floor area for shop.
In essence the plaintiffs submit that the s.173 agreement requires the owner of the land to provide the number of car spaces set out in the table at cl.52.06-5. [3]
[3]The proposed notice of appeal formulates the relevant question of law as follows: "Did the Tribunal err in law in finding that the section 173 agreement did not require car parking to be provided in accordance with clause 52.06 of the Banyule Planning Scheme without reduction."
In my view this construction should not be accepted.
(a)The s.173 agreement and Design Guidelines require the owner to meet the requirements of the Banyule Planning Scheme. They do not require the owner to meet the requirements set out in the table at cl.52.06-5 of the planning scheme.
(b)The requirements of the planning scheme pursuant to cl.52.06 are ascertainable by the statutory mechanism of a decision at first instance by the responsible authority and on review by the Tribunal. The decision of the Tribunal is declaratory of compliance with cl.52.06 in that it formally reduces the requirements of the table as applied to the proposal by authorising "a reduction in the standard car parking requirements" in accordance with indorsed plans The application of clause 52.06 as a whole rather than the table at 52.06-5 is not as the plaintiffs submit 'meaningless'.
(c)All four paragraphs set out in 52.06-1 contain 'requirements' as the use of the word 'requirements' in the last paragraph makes clear: "These requirements do not apply if there is a parking requirement for the particular use under another clause or in a parking precinct plan." A reduced parking requirement under cl.52.06-1 remains "a requirement of the Banyule Planning Scheme".
(d)The construction contended for by the plaintiffs would require the Court to ascribe to the parties an objective intention to require car parking in excess of that required by cl.52.06-1.
(e)The construction contended for by the plaintiffs would require the Court to ascribe to the parties an intention to provide a level of car parking having no justification by reference to the purposes of cl.52.06 including the purpose "to ensure provision of an appropriate number of car spaces having regard to the activity on the land and the nature of the locality."
(f)The table at cl.52.06-5 is not an exhaustive prescription for all categories of land use. If the table determined the parking requirements the s.173 agreement would require no provision of parking for uses not governed by that table. Clause 52.06-1 applies the table only where a parking precinct plan or another clause of the planning scheme does not apply. It further envisages that "where a use is not specified in the table at cl.52.06-5, an adequate number of car spaces must be provided to the satisfaction of the responsible authority."
(g)The genesis of the obligation in issue is stated in recitals E-G of the s.173 agreement:
"E.The Responsible Authority sold the Land to the Owner under a Contract of Sale dated 20 October 1999 (the 'Contract').
F.Settlement of the Contract is to take place in accordance with the terms and conditions of the Contract on or before 30 June 2000 (the 'Settlement Date').
G.The Owners are required to enter into this Agreement in order to give effect to Special Condition 5 of the Contract which provides that:
'Prior to the Settlement Date the Purchaser will enter into an agreement with the Vendor pursuant to Section 173 of the Act which provides for:
(1) The Purchaser's acknowledgment that:
(a)The Design Guidelines apply to the Property and in particular the Site Specific Guidelines for 72-84 Upper Heidelberg Road (pages 24-26) and for 3 Kiernan Avenue (pages 27-28);
(b)The Design Guidelines include a requirement that 35-40 carparking spaces for use by the general public (the 'public carparking spaces') must be constructed at the cost of the Developer in association with the Development; and
(c)The Design Guidelines require title to the public carparking spaces to be transferred to Council which must occur on or before commencement of the use of the Development in accordance with the Planning permit'."
There is nothing in these recitals which supports the view that the agreement is intended to achieve the arbitrary provision of parking in accordance with the table at cl.52.06-5.
(g)The language of the Design Guidelines is, in my view, plain, but if I am wrong in this there is no surrounding circumstance which supports the construction for which the plaintiffs contend.[4]
(h)There is no basis for implying the insertion of the words "the table at cl.52.06-5" into the phrase "the car parking requirements of the Banyule Planning Scheme" so that it reads "the car parking requirements of the table at cl.52.06-5 of the Banyule Planning Scheme." In terms of the conditions governing such an implication summarised by the majority in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council[5]:
(a)It would not be reasonable or equitable to imply the words sought because such words would carry with them a requirement to provide parking other than in compliance with the Banyule Planning Scheme and in excess of what the responsible authority could reasonably require upon a permit application;
(b)The words sought to be implied are not necessary to give the agreement business efficacy. The agreement is effective without them;
(c)The term proposed is not so obvious "it goes without saying";
(d)It is capable of clear expression; but
(e)It contradicts the express terms of the agreement which require compliance (only) with the requirements of the Banyule Planning Scheme.
[4]Codelfa Construction Pty Ltd v State Rail Authority ( NSW) (1982) 149 CLR 337 at 346
[5](1977) 180 CLR 266 at 283
The Tribunal itself concluded on this issue as follows:
"We are satisfied that the 35 spaces have been provided in addition to that required to be provided to meet the parking requirements of the proposed uses. …
Mr Wright submitted that the section 173 agreement requires car parking to be provided in accordance with clause 52.06 of the Banyule Planning Scheme and that compliance with this requirement would mean that 434 parking spaces should be provided on site. Clause 52.06 does not impose an absolute car parking requirement. To the contrary, the purpose of clause 52.06 is to ensure the provision of an appropriate number of car spaces having regard to the activities on the land and the nature of the locality. To this end, the table at Clause 52.06-5 sets out the number of car spaces required for specified uses but a permit may be granted to reduce or to waive the number of car spaces required by the table. The decision guidelines at clause 52.06-1 require consideration of a range of matters in determining an application, including an empirical assessment of car parking demand. We agree with Mr Canavan that there is no rational basis for a requirement of 434 parking spaces on this site, a requirement which is 25% greater than that which even Ms Donald said is needed."[6]
[6]Ms Donald was the traffic engineer called on behalf of the plaintiff to give evidence before the Tribunal in criticism of the proposal.
No error has been demonstrated in this conclusion.
Accordingly, the proposed appeal must fail and it would be futile to grant leave to appeal. Accordingly, I propose to order that the plaintiffs' application for leave to appeal be dismissed.
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