SGRC Pty Ltd v Melbourne City Council - [2014] VSC 238

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. S CI 2013 5459

SGRC PTY LTD	Applicant
V
MELBOURNE CITY COUNCIL & Ors (according to the attached schedule)	Respondents

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	20-21 March 2014
DATE OF JUDGMENT:	21 May 2014
CASE MAY BE CITED AS:	SGRC Pty Ltd v Melbourne City Council & Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 238

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PLANNING AND ENVIRONMENT – Appeal against conditions - Whether a roof cornice is an ‘architectural feature’ and therefore exempt from a mandatory height restriction – Whether the Tribunal erred in reading down the term ‘architectural feature’ by reference to the principal purpose of the structure – Whether the Tribunal erred in failing to give the applicant the opportunity to make submissions as to whether structures were ‘fences’ and in failing to consider and decide that question itself – Whether permit condition is void for uncertainty – Leave to appeal granted – Appeal allowed – Proceeding remitted to the Tribunal for determination according to law – s 80(1) of the Planning and Environment Act 1997 - s 148(1)(d), s148(7)(b) of the Victorian Civil and Administrative Tribunal Act 1998 - Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Gobbo Ms J Forsyth	Harwood Andrews
For the First Respondent	Ms S Porrit	Legal Services, Melbourne City Council

HER HONOUR:

The applicant proposes to construct a four storey apartment block in Millswyn Street, South Yarra, on a site that is currently occupied by a motel. The Melbourne City Council granted a permit providing for the demolition of the existing building and construction of the replacement apartment building with, among other things, roof decks accommodating two domestic swimming pools with associated safety and mechanical equipment. The design of the proposed building includes a structure approximately one metre high set slightly back from the perimeter of the roof terrace on top of the building. The structure in question is described in the plans as a ‘roof cornice’ and has been designed, as the Tribunal found, to integrate with the remainder of the building.

The applicant applied to the Tribunal to review a permit condition imposed by the Council relating to building height. The relevant condition was as follows:

(1)Prior to the commencement of the development on the land, two copies of plans, drawn to scale must be submitted to the Responsible Authority generally in accordance with the plans received 15 November 2013 but amended to show:
(a)the building height (including the roof cornice/balustrade, swimming pool upstand, rooftop access staircase and lift structures and canopies) reduced to a maximum of 12 metres as measured from the footpath surface level at centre of the Millswyn Street frontage. This excludes lift overruns and the plant enclosure.

The Tribunal proceeding was brought pursuant to s 80(1) of the Planning and Environment Act1987 (Vic)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] VSC 238
Decision Date: 21 May 2014

CaseChat Overview and Summary

SGRC Pty Ltd has appealed to the Victorian Court of Appeal against a decision of the Victorian Civil and Administrative Tribunal (VCAT) which upheld a decision of the Melbourne City Council imposing conditions on the construction of a building in Melbourne. The dispute concerns the interpretation of the term ‘architectural feature’ in the planning scheme, and whether a roof cornice falls within this definition, thereby exempting it from a mandatory height restriction. The court was required to decide whether VCAT erred in interpreting the term ‘architectural feature’ by reference to the principal purpose of the structure, and whether VCAT erred in failing to give SGRC the opportunity to make submissions as to whether the structures were ‘fences’ and in failing to consider and decide that question itself. The court also considered whether a permit condition was void for uncertainty.

The Court of Appeal found that VCAT erred in reading down the term ‘architectural feature’ by reference to the principal purpose of the structure, as this was not consistent with the ordinary meaning of the term. The court also found that VCAT erred in failing to give SGRC the opportunity to make submissions as to whether the structures were ‘fences’ and in failing to consider and decide that question itself. The court held that the term ‘fence’ is ambiguous and could include the structures in question, and that VCAT should have considered this possibility. The court further held that the permit condition was not void for uncertainty, as it was clear that the permit was subject to certain conditions, including a height restriction.

Accordingly, the Court of Appeal allowed the appeal, remitted the proceeding to VCAT for determination according to law, and granted leave to appeal. The court noted that VCAT should consider the question of whether the structures in question are ‘fences’ and whether the roof cornice is an ‘architectural feature’ in light of its findings. The court also noted that the permit condition was not void for uncertainty, and that VCAT should consider the height restriction in light of its findings.

Orders