Shadda Abercrombie v Salter Architects and Minister for Planning

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0057

SHADDA ABERCROMBIE	Applicant
v
SALTER ARCHITECTS	First Respondent
and
MINISTER FOR PLANNING	Second Respondent

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JUDGES:	FERGUSON CJ, TATE and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 November 2017
DATE OF JUDGMENT:	28 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 74
JUDGMENT APPEALED FROM:	[2017] VSC 180 (Emerton J)

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PLANNING AND ENVIRONMENT – Application for leave to appeal on questions of law from a decision of the Trial Division upon an appeal from the Victorian Civil and Administrative Tribunal – Whether Design and Development Overlay imposes a mandatory height limit – Schedule imposes discretionary height requirement – Power to vary height of roof structure or chimney does not ‘specify otherwise’ – Whether imposition of a condition directed to height of building by Tribunal was unreasonable – Leave granted in part – Appeal dismissed.

WORDS AND PHRASES – ‘should’, ‘specify otherwise’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Morris QC with Mr R Watters	Planning & Property Partners
For the First Respondent	Mr N J O’Bryan SC with Mr M W L Symons	Elliot Legal
For the Second Respondent	Mr C M Caleo QC with Ms J C Sharpe	Victorian Government Solicitor’s Office

FERGUSON CJ:
OSBORN JA:

The first respondent (‘Salter’) proposes to develop land situated on New Summit Road, Mount Buller for the purpose of a multilevel residential building (‘the proposed development’).

The site rises from its frontage at the north towards the rear. On its southern side it is bounded by Abominable Way. The applicant for leave to appeal is the lessee of an apartment on the third level of the Alto Apartment Block which is situated on the southern side of Abominable Way, to the south and south east of the proposed development site.

The proposed development requires planning permission under the Alpine Resorts Planning Scheme (‘the Planning Scheme’) in respect of which the second respondent (‘the Minister’) is the Responsible Authority.

Salter lodged an application for a planning permit in respect of the proposed development with the Responsible Authority on 2 September 2015. Amongst other things, Salter sought a permit for buildings and works pursuant to the provisions of a Design and Development Overlay (‘DDO’) which regulates the height of buildings within the area to which it applies.

The applicant objected to the proposed permit in part on the basis that the proposed development was too high and would interfere unreasonably with views to the north from her apartment. She also contended that the proposed development exceeded the maximum height permissible under the DDO.

The Minister decided to grant a permit subject to conditions which required some modification of the build form of the proposed development.

The applicant and other objectors sought review of this decision before the Planning Division of the Victorian Civil and Administrative Tribunal (‘the Tribunal’).

Prior to the hearing of the review, Salter sought and obtained the leave of the Tribunal to rely on amended plans which altered the form of the upper level of the proposed development in a number of respects.

The Tribunal in turn determined that a permit should be granted but required further more detailed modification of the proposed plans.

The applicant then sought leave to appeal on questions of law to the Trial Division of the Supreme Court of Victoria pursuant to s 149 of the Victorian Civil and Administrative Tribunal Act 1998. The applicant agitated three complaints:

(1)The Tribunal, having found that a modification was required to the roof form of the proposed building in order to achieve an acceptable balance and a reasonable sharing of views, imposed a condition to give effect to this finding that was ineffectual and lacked an evident and intelligible justification, in that the condition will not result in any improvement in the view from Alto 302 compared with the position in the Application Plans.
(2)The Tribunal misconstrued the maximum height requirement in DDO1 by determining that it could grant a planning permit authorising the construction of a building that was higher than four storeys.
(3)The Tribunal, having found that weight should be given to the Zacamoco[1] decision in the exercise of its discretion, erred in law in determining that the effect of the Zacamoco decision was to permit a building of up to a height of 1610.87 AHD to be constructed.

[1]A previous decision of the Tribunal relating to the same site.

On 12 April 2017, the application was heard by Emerton J who determined to grant leave to appeal but dismissed the appeals.

The applicant now seeks leave to further appeal the decision of Emerton J. The applicant seeks leave to appeal from the orders of Emerton J by reference to two questions of law:

(1) Did the Court err in construing the DDO control as not imposing a mandatory height limit?

(2) Did the Court err in concluding that the imposition by the Tribunal of a condition directed to the height of the building was not unreasonable?

For the reasons which follow, we would grant leave to appeal with respect to the first question but dismiss the appeal. We would refuse leave to appeal with respect to the second question.

In summary, we agree that the relevant height control states a requirement in respect of which the Tribunal retained a discretionary power to permit a variation.

Further, the judge at first instance was correct to conclude that the condition which the applicant seeks to impugn should not be characterised as having no reasonable basis.

The relevant planning scheme control

Part 1A of the Planning and Environment Act 1987 provides for a standard form of planning scheme control provisions in Victoria known as the Victoria Planning Provisions (‘VPPs’).

As currently adopted, the VPPs contemplate that planning schemes will first set out a state and local policy framework for planning decisions. Next, the VPPs regulate land use and development through a framework of standard zone control provisions. They then provide for overlay controls which further regulate particular impacts of the development of land, and provide a series of particular control provisions addressing particular aspects of land use. Lastly they provide for a series of general provisions and definitions which support the interpretation and application of the preceding controls.

In the present case, the proposed development required a permit for building and works pursuant to a zone control governing the Public Park and Recreation Zone of the Planning Scheme.[2]
[2]Planning Scheme clause 36.02.

But the site was also subject to a more specific overlay control governing buildings and works.

The controversy in this case is concerned with this control and it is necessary to describe both its context and form.

Clause 41 of the Planning Scheme introduces the operation of overlays by way of a standard form provision:

If any overlay is shown on the planning scheme map, the provisions of the overlay apply in addition to the provisions of the zone and any other provision of this scheme.
Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the state planning policy framework, local planning policy framework, the purpose and decision guidelines of the overlay and any of the other decision guidelines in clause 65.

In turn, the standard form planning scheme provisions comprised in the VPPs contemplate four categories of overlays namely Environment and Landscape Overlay,[3] Heritage and Built Form Overlay,[4] Land Management Overlay,[5] and a residual group of other overlays.[6]
[3]Ibid clause 42.
[4]Ibid clause 43.
[5]Ibid clause 44.
[6]Ibid clause 45.

One of the standard form Heritage and Built Form Overlays utilised in the planning scheme is a Design and Development Overlay. The overlay relevantly comprises operational provisions and a schedule detailing specific conditions relating to a particular geographic area.

The purpose of the overlay is stated in the operational provisions to be:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
To identify areas which are affected by specific requirements relating to the design and built form of new development.[7]

[7]Planning Scheme clause 43.02.

In turn the operational provisions, require a statement of specific design objectives for the land covered by the overlay to be included in a schedule to the overlay.

A schedule to this overlay must contain a statement of the design objectives to be achieved for the area affected by the schedule.[8]

[8]Ibid clause 43.02-1.

In the present case, Schedule 1 to the DDO relates to the Mount Buller Alpine Resort Village and states the following design objectives:

•To ensure that development within the Mt Buller Village creates and enhances the identifiable individual resort character by:
•Sitting comfortably within the alpine landscape, by stepping with natural grades and harmonising with the character of the surrounding landscape.
•Retaining existing indigenous vegetation and natural features.
•Demonstrating buildings have given consideration to articulation, fragmentation and stepping.
•Using built form. materials and finishes, including colours that blend in with the natural alpine environment and that will achieve long lasting durability.
•Designing built form and finishes to respond to year round climatic conditions and the range of visitor needs and interests.
•Being constructed so that it is generally level with or below the top of the existing tree canopy in residential areas of the Village.
•Retaining, where possible, all vegetation on site that performs a screening function.
•Not being visually intrusive above the tree canopy or on the skyline when viewed from key public vantage points within the Village and adjoining ski fields.

•To ensure building design provides a visually attractive and functionally effective interface with the public domain, particularly within the Village Square and Bourke Street ski run.
•To ensure that development is visually attractive all year round.
•To ensure view corridors are protected between buildings and provide opportunities for view sharing where reasonable and practical.
•To provide safe pedestrian and skier access and linkages within the Village and to the ski fields.[9]

[9]Planning Scheme clause 43.02 Schedule 1, clause 1.

After the requirement for the statement of specific design objectives, the operational provisions of the DDO then set out a permit requirement in clause 43.02-2 with respect to buildings and works.

A permit is required to:
•Construct a building or construct or carry out works. This does not apply:
·If a schedule to this overlay specifically states that a permit is not required.
·To the construction of an outdoor swimming pool associated with a dwelling unless a specific requirement for this matter is specified in a schedule to this overlay.

•        Construct a fence if specified in a schedule to this overlay.
Buildings and works must be constructed in accordance with any requirements in a schedule to this overlay. A schedule may include requirements relating to:
•        Building setbacks.
•        Building height.
•        Plot ratio.
•        Landscaping.
•Any other requirements relating to the design or built form of new development.

A permit may be granted to construct a building or construct or carry out works which are not in accordance with any requirement in a schedule to this overlay, unless the schedule specifies otherwise.[10]

[10]Ibid clause 43.02-2. Emphasis added.

It can be seen that after initially stating that buildings and works ‘must’ be constructed in accordance with the requirements of a schedule to the DDO, that the Planning Scheme then provides that a permit ‘may be granted’ to construct a building or construct or carry out works which are not in accordance with any requirement in a schedule to the overlay ‘unless the schedule specifies otherwise’.

This clause is common to all planning schemes within Victoria which utilise DDO provisions. It has accordingly been the subject of careful consideration at the Tribunal.

In Stokes v Melbourne City Council,[11] Senior Member Byard observed:
[11][2009] VCAT 364.

Any requirements in the schedule as to building height are not absolute or mandatory requirements. They must be observed save that they can be varied with a permit unless the schedule specifies otherwise. The question in the present case gets down to whether the provisions in the schedule do specify otherwise. … Specify does not mean state generally in broad but uncertain terms. On the contrary, it means to state explicitly, definitely, precisely, in detail and with particularity.[12]

The senior member further observed:

An implication that is necessary, definite and precise can be sufficient although one that is ambiguous or uncertain would not suffice.[13]

[12]Ibid [25]–[26].

[13]Ibid [29].

Emerton J endorsed this understanding of the way in which the DDO operates and of the relevant concept denoted by the word ‘specifies’. There was no dispute before this Court that in order to specify otherwise the schedule must state otherwise clearly and explicitly and not vaguely or in general or uncertain terms.

We would add the following observations. First, to ‘specify otherwise’ is to do more than ‘provide otherwise’. Specification denotes a clear and precise identification.

Secondly, ‘specify otherwise’ is an ordinary English phrase utilising commonly used words. The notion of specification is utilised elsewhere in the Planning Scheme and in clause 43.02–2 itself, which envisages that a schedule may ‘specifically state’ that a permit for building or works is not required and that a schedule may ‘specify’ a requirement to construct a fence.

Thirdly, the Planning Scheme is not intended to be an arcane document, the sense of which can only be ascertained by those with expertise in planning law. When the standard provision contemplates that a schedule may ‘specify otherwise’, then having regard to the nature of the document it might reasonably be expected that such specification would be plain, unambiguous and unarguable.

Fourthly, the standard overlay provision which reserves a discretion to depart from requirements stated in the schedule unless the schedule specifies otherwise, reflects the overall framework and structure of a planning scheme which seeks to encourage and facilitate performance-based planning decisions which balance relevant (and potentially competing) policy objectives. Clause 10.02 of the State Planning Policy Provisions articulates the underlying concept of integrated decision-making which results in net community benefit and sustainable development. The concept is derived from the potentially competing objectives stated in s 4 of the Planning and Environment Act 1987.

In turn, as we have noted, the operational overlay provisions as a whole contemplate the achievement of ‘acceptable outcomes’ rather than specific standards as the ordinary basis of decision-making.[14] Such outcomes are to be arrived at having regard to relevant State planning policy, local planning policy, the objectives of the relevant schedule required by the overlay, and detailed decision guidelines contained in the overlay. In this sense, the overall framework for decision-making with respect to the planning permit in issue is consistent with the existence of a discretion guided by detailed policy considerations and planning objectives.
[14]Planning Scheme clause 41.

We turn then to the provisions of the relevant schedule.

Schedule 1 to the DDO sets out building and design requirements under clause 2.1. The clause commences:

The development of the land should meet the following requirements:

The clause then sets out a table relating to two different designated areas. The relevant portion of the table states as follows:[15]
[15]Planning Scheme clause 43.02 Schedule 1, clause 2.1.

DDO1 A2	Requirement
Maximum Height	The maximum height of any part of a building is 4 storeys or 15 metres above natural ground level, whichever is the lesser height. A permit may be granted to increase the height of any roof structure or chimney by 1.5 metres provided no more than 20% of the roof area exceeds 15 metres in height.
Minimum Setbacks	A building must be set back: 6 metres from the closest kerbside or constructed edge of a road abutting the frontage of the site and 3 metres from the frontage boundary of the site 6 metres from any building on an adjoining site. Where any part of an external wall measured above natural ground level exceeds 3.6 metres in height, the minimum prescribed distance of the wall from a boundary shall be increased in the proportion of 100mm for every 300mm or part thereof by which that height of that part of the wall exceeds 3.6 metres. A permit may be granted to vary setbacks.
Maximum Site Coverage	75% of the total site area Site coverage is the proportion of the site covered by all buildings. A permit may be granted to vary site coverage.

The schedule goes on to deal with overshadowing, materials and finishes, management of native vegetation, application requirements and decision guidelines.

The height in issue in this case

The plans approved by the Tribunal provide for a building which is less than 15 metres in height above natural ground level (as assessed under the Planning Scheme). Because a basement car park protrudes above ground however the building is technically more than a four storey building.

Principles of statutory construction

The table contained in the schedule to the DDO fell to be understood by reference to its text, context and purpose.[16]
[16]See, eg, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46–7 [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39].

In the present case, the parties join issue as to the interpretation of the provision viewed in the context of the overlay as a whole. In this regard, reference was made to the following statements of principle by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.[17]

[17](1998) 194 CLR 355, 381–2 [69]–[71] (citations omitted).

Insofar as the last mentioned principle is concerned, the applicant also relies upon the judgments of the High Court in Plaintiff M47/2012 v Director-General of Security[18] and Tabcorp Holdings Ltd v Victoria.[19] It is submitted that the strength of the principle was made clear by Hayne J in Plaintiff M47/2012 v Director-General of Security, where his Honour emphasised the word ‘any’ in the phrase ‘any other construction’.[20]
[18](2012) 251 CLR 1, 38 [41] (French CJ); 76 [172], 83 [193] (Hayne J); 168 [450] (Kiefel J).
[19](2016) 328 ALR 375, 391 [74].
[20]Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1, 76 [172].

The reasoning of the judge at first instance

When construing the height control, Emerton J reasoned as follows:

(1) The use of the word ‘should’ to introduce the table at clause 2.1 of the Schedule does not support the applicant’s construction that there is a mandatory height limit.[21]
[21]Abercrombie v Salter Architects [2017] VSC 180 [63] (‘Reasons’).

(2) The fact that the Schedule expressly states that minimum setbacks and maximum site coverage requirements may be varied, but does not expressly state that maximum height requirements may be varied, does not amount to specifying by ‘necessary, definite and precise’ implication that the maximum height requirement cannot be varied and is mandatory.

(3) The words ‘a permit may be granted to increase the height of any roof structure or chimney or …’ do not stand in the place of the preceding general provision enabling a permit to be granted to vary the building maximum height. They do not specify ‘otherwise’ for the purposes of the parent provision. The Schedule specifies a maximum building height and a maximum height for ‘roof structures’ and ‘chimneys’. The latter may exceed the former by 1.5 metres, subject to the limitation on roof area. The Schedule should be understood as making separate provision for roof structures and chimneys, rather than providing for roof structures and chimneys to be the only permissible extension to the height limit for buildings.[22]
[22]Ibid [67]–[68].

(4) It is not necessary to imply a mandatory limit upon building height in order to give meaning to the words permitting variation of setback and site coverage requirements.

(5) The remainder of the Schedule does not demonstrate any intention supporting an implication that the maximum height requirements must be construed as mandatory. There is no necessary definite and precise implication in the Schedule that the maximum height of a building cannot be varied.

(6) Extrinsic materials produced by the Minister demonstrate that prior to its approval, consideration was given to including within the schedule the words ‘a permit may not otherwise be granted to increase any maximum height specified in this clause’. An independent panel recommended that the words not be included and this recommendation was adopted.[23] A deliberate choice was made to adopt a performance-based control rather than a more proscriptive control.

[23]See Planning and Environment Act 1987 ss 25, 27 and 29.

The parties’ submissions

Whilst the introductory words to the relevant provision of the DDO provide that a permit may be granted to construct a building that does not comply with the requirements of a schedule, the applicant submits that this discretion has been removed because ‘the schedule specifies otherwise’.

The applicant submits that the requirement comprised in clause 2.1 of the Schedule consists of two elements:

(a) the requirement itself, specifying the maximum level of any part of the building as being four storeys or 15 metres above natural ground level; and

(b) a proviso stating that a permit may be granted for ‘any roof structure or chimney’ to exceed 15 metres in height within certain specified parameters.

It is submitted that the inclusion of a specific proviso necessarily implies that no permit may be granted for any other variation. It is submitted that Emerton J was correct to conclude that ‘specification otherwise may occur by implication … with the caveat that any such implication must be “necessary, definite and precise’’.’[24] The applicant submits however that the Court erred by concluding that, on its proper construction, the proviso ‘makes separate provision for roof structures and chimneys, rather than providing for roof structures and chimneys to be the only permissible extension to the height limit for buildings’.[25]
[24]Reasons [64] citing Stokes v Melbourne City Council [2009] VCAT 364 [29].
[25]Ibid [68].

The applicant submits that the implication of an unqualified power to vary the requirement is inconsistent with the express language of the clause and results in words being rendered superfluous. Attention is drawn to the terms of the Schedule which relate to minimum setbacks and maximum site coverage. These matters are the two further parameters by reference to which requirements are imposed in addition to those imposed relating to maximum height. In each case after stating a standard, the control provides ‘a permit may be granted to vary setbacks’. It is submitted that no such discretion is intended to be preserved with respect to the height control and that if such a discretion exists generally with respect to the requirements of the table in the Schedule the words quoted are superfluous.

Next it is submitted that the construction approved by Emerton J renders the specific proviso with respect to the height of roof structures and chimneys superfluous and lacking in utility. The provisions relating to height controls should be construed as imposing a requirement which is subject only to a limited proviso, namely the specific discretion to vary granted with respect to roof structures.

The respondents submit that the introductory words concerning building and design requirements contained in the Schedule are not expressed in mandatory terms. They simply state ‘the development of land should meet the following requirements’.[26]
[26]Emphasis supplied.

They further submit that the terms of the maximum height requirement viewed in context do not give rise to a ‘necessary, definite and precise’ implication that the maximum height may not be varied save in accordance with the proviso.

The respondents emphasise that the rule of construction upon which the applicant relies is a subsidiary rule of construction.

The respondents further submit that the construction preferred by the judge at first instance does not deprive the second part of the requirement relating to height of meaning and effect.

Analysis

The submissions of the parties on appeal to this Court with respect to the first proposed ground focussed upon three matters:

(c) the use of the word ‘should’ in the introductory words to the table;

(d) the failure to include within the table an express statement that a permit may be granted to vary the height requirements in the same way as such statements are included with respect to the setback and site coverage requirements; and

(e) the provision of a specific conditional discretion with respect to roof structures within the height control requirements.

We shall address each of these matters in turn.

The use of the word ‘should’

The verb ‘should’ follows immediately under a heading which refers to ‘requirements’. The power for a schedule to include ‘requirements’ is provided for in clause 43.02–2 which, as has been noted, provides for a discretion to vary those requirements.

The verb ‘should’ is to be contrasted with the use of the verb ‘must’ within the very words of clause 43.02–2 itself, which initially provides that ‘buildings and works must be constructed in accordance with any requirements in the schedule to this overlay’; and to the use of the verb ‘must’ elsewhere in the Schedule such as in clause 3 of the Schedule which governs requirements for an application. Clause 3 states:

An application to construct a building or construct or carry out any works must be accompanied by the following information as appropriate: …

The verb ‘must’ is also used elsewhere in the Planning Scheme. Indeed, its use is the fulcrum of the use controls implemented by reference to zones under clause 31 and following of the VPPs.

When Schedule 1 is read as a whole, and the language used is considered in the context of the DDO provisions as a whole, together with the Planning Scheme provisions as a whole, the inescapable conclusion is that the use of the verb ‘should’ is deliberate.

In turn, it follows that the ‘requirements’ set out in the Schedule are not absolute requirements. The sense in which they are conditional is obvious. They are subject to the discretion granted by clause 43.02–2 to grant a permit for the construction of a building or the carrying out of works which are not in accordance with ‘any requirement in a schedule to this overlay’. The requirements set out in the Schedule are provisional in the way contemplated by clause 43.02–2.

In turn, the use of the word ‘should’ means that it cannot be said that the Schedule ‘specifies otherwise’ than is provided for by clause 43.02-2. It does not in terms state mandatory requirements.

The express provision of a power to vary specific requirements within the table to the Schedule

It is true that the provisions of the table to the Schedule relating to minimum setbacks and site coverage expressly provide that a permit may be granted to vary the tabulated requirements, whereas the provisions relating to maximum height do not so provide. In our view however, Emerton J was correct to conclude that the fact of an underlying discretion to vary the requirements of the Schedule does not render meaningless the words which expressly state that a permit may be granted to vary minimum setbacks and site coverage.

It is unremarkable that in this context the planning scheme should restate the power to permit a variation. The relevant principles were addressed by Mason CJ in Chu Kheng Lim v Minister for Immigration:

The only argument against the interpretation of s 54R which I find compelling is that the section, so interpreted, may achieve nothing. The section achieves nothing if it does no more than instruct the courts to act in conformity with the substantive provisions of div 4B, that being something which the courts would be bound to do in any event. To construe the section in this way, it is suggested, would be to ignore the presumption that words are not used in a statute without a meaning and are not superfluous. Put another way, the argument is that, if possible, some meaning and effect should be given to all the words used.[27] However, this presumption or rule of construction is of limited application. In Hill v William Hill (Park Lane) Ltd[28] Viscount Simon explained it in these terms:
When the legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out. (Emphasis added by Mason CJ.)

His Lordship went on to point out that, if the language offered a choice between tautology and retrospectivity, it would be natural to prefer a construction implying the reproach that Parliament had said the same thing twice over. [29]

[27]The Commonwealth v Baume (1905) 2 CLR 405, 414 (Griffith CJ).

[28][1949] AC 530, 546–7.

[29]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 12–13 (citations in original).

In the present case, the good reason for including the words in issue appears to us to be simply to underline and make abundantly clear within the particular schedule that a discretion exists to vary the particular provisions. The fact that the Planning Scheme is not a piece of legislation but a subordinate instrument intended to be understood and used by non-lawyers encourages this view. As does the fact that the operational provisions were drafted and introduced into the Planning Scheme independently of the Schedule, which was the product of a different discrete authorship and process.

Conversely, and in any event, the absence of such words expressly stating that a permit may be granted to vary the requirements stated in that part of the table relating to maximum height does not amount to a ‘specification’ otherwise. It does not give rise to any necessary or definite implication in this regard.

The words of the Schedule may involve some superfluity but they do not displace the plain terms of clause 43.02–2 and the use of the word ‘should’ to qualify the notion of requirements contained in clause 2.1 of the Schedule.

The roof structure provisions

The applicant submits that the inclusion of an express discretionary power to vary the height of a roof structure or chimney, impliedly excludes the general discretion to vary the maximum height specified in the Schedule which would otherwise be available pursuant to clause 43.02–2. This submission gives rise to three inter-related issues:

·the natural meaning of the relevant provision within the table;
·the significance of the context of the table provisions within the Schedule; and
·whether the provision can in any event be regarded as ‘specifying otherwise’ as provided for in clause 43.02–2?

The relevant provision within the table to the Schedule deals first with the maximum height of any part of a building, and secondly with the height of specific parts of a building namely the height of roof structures and chimneys. The second element of the table relating to roof structures and chimneys provides a specific discretion which is materially limited by reference to the extent of roof area involved.

The height of roof structures and chimneys may give rise to potential issues of design complexity having regard to the objectives of the DDO. On the one hand, they have the potential to contribute positively to articulation, fragmentation, and stepping, and the overall achievement of a visually attractive design. On the other hand, they may raise issues as to whether they enhance resort character by sitting comfortably within the alpine landscape and by avoiding visual intrusion above the tree canopy or on the skyline. The decision guidelines contained in the Schedule provide that the Responsible Authority must consider as appropriate a series of detailed contextual factors relating specifically to building height.

Building height:
•        The scale and nature of surrounding development.
•        The effect on amenity of surrounding site.
•        The relationship to surrounding vegetation.
•The visual impact of the siting of the proposed development, particularly in terms of its impact on the streetscape.
•The overall bulk and massing of the proposed development and its relationship to adjacent development and the streetscape and landscape setting.

• The topography and slope of the site.
• The intrusion into the skyline.[30]

[30]Planning Scheme clause 43.02 Schedule 1, clause 4.0.

In our view, Emerton J was correct to conclude that the Schedule makes separate provision for roof structures and chimneys, rather than providing for roof structures and chimneys to be the only permissible extension above the height level of a building. The planning scheme context indicates why it might be regarded as appropriate to make specific provision in this regard.

The ultimate question is not however what the provision read in isolation conveys, but whether it derogates from clause 43.02–2 by specifying otherwise. It may be accepted that, as the applicant submits, the provision within the table relating to maximum height could be read in isolation as comprising an initial requirement and a limited proviso, but it cannot in our view be read as specifying otherwise than is provided for by clause 43.02–2.

This is so first because as we have said the provision is qualified by the use of the verb ‘should’. Secondly, the implication which the applicant postulates is not one which arises necessarily, definitely or precisely either from the terms of the height control provision alone or that provision read in conjunction with the setback and site coverage provisions.

Moreover, as the extrinsic material relied on by the Minister demonstrates, so to provide would have been relatively easy. We do not rely upon the extrinsic material as the basis of our decision but rather to emphasise as a matter of language how far the provision in issue falls short of providing in terms or by necessary implication that ‘a permit may not otherwise be granted to increase any maximum height specified in this clause’.

Accordingly, neither the Tribunal nor the judge at first instance erred in concluding that the Tribunal retained a discretion to permit a development which was in part above four storeys in height. In our view the words of the relevant provision read as a whole do not expressly or by way of necessary and definite implication derogate from the overriding discretion granted by the operative provisions of clause 43.02-2.

The second proposed ground of appeal

Before turning to the second proposed ground of appeal in any detail, it is convenient to better describe the proposed development.

The context of the proposed development is shown on the site plan depicted below:

The objector’s apartment is within the site labelled ‘Alto Villas’ to the south east of the proposed development site, which fronts New Summit Road and is centrally located on the plan.

As the plan also shows, the proposed development in plan form includes four ‘chalets’ comprising the upper level, and it is now intended that the roof of the chalets will be stepped so that each comprises a southern and northern half. As modified in accordance with the requirements of the Tribunal, the cross-section of the chalets (taken at the point identified on the upper plan below and designated with the cross-section symbol and labelled A13) is as shown in the cross-section plan A13 also set out below:

At the time of the Tribunal hearing, it was proposed that the cross-section of the building would be as shown in the plan below:

It can be seen that the roof proposed on each chalet sloped from south to north within a uniform parapet at the rear and on each side.

The Tribunal imposed a condition requiring that the roof form of the chalets be stepped. The condition was responsive to a suggestion from the Minister.

Condition 1(a) of the permit required amended plans which complied with the following requirements:

(a)The following maximum building heights must not be exceeded:
(i)1609.75 AHD within nine metres of New Summit Road;
(ii)1610.10 AHD between nine metres and 16.4 metres of New Summit Road;
(iii)1610.87 AHD beyond 16.4 metres of New Summit Road.

These setbacks from New Summit Road are to be measured from a line that is parallel with the north-west intersect of the land with New Summit Road.

There is no dispute that the purpose of this condition was intended to be that of reducing the visual impact of the building upon view lines from the south and south-east, including view lines from the applicant’s apartment.

The Tribunal stated the principles which guided its decision as follows:[31]
[31]Domdada Pty Ltd v Minister for Planning [2016] VCAT 1926 [46]–[50] (citations omitted).

46.All parties refer to the principles in Healy and the subsequent refinement of those principles through Wright. In Healy, the Tribunal stated the principles:
(a)there is no legal right to a view;
(b)views form part of the existing amenity of a property and their loss is a relevant consideration to take into account;
(c)the availability of views must be considered in the light of what constitutes a reasonable sharing of those views;
(d)in addressing the concept of ‘reasonableness’, it is relevant to consider;
(i)the importance of the view to be lost within the overall panorama available; and
(ii)whether those objecting have taken all appropriate steps to optimise development of their own properties.

(e)added emphasis will be placed on principles (b) and (c) above if the issue of views is specifically addressed in the planning scheme.

47. In Wright, the Tribunal added:
This Tribunal would respectfully add a further refinement, which is that in addressing the question of reasonableness under para (c) above it is also relevant to consider the legitimate expectations of those whose view is being affected.

48.In addition, the parties acknowledge that:
View sharing is not about achieving equal views nor is it simply a numerical calculation as to the proportion of view that may be lost.
It is reasonable to have regard to elements within the view as well as the spaces within a dwelling from which the view is obtained. This later point was made in Healy, where the Tribunal said:
The Tribunal does not accept the proposition that the value of views can be assessed from peripheral points of the Objectors viewing areas. The most obvious and sensible starting point is to make that assessment from those positions that are most likely to be commonly utilised.

49.The theme of protecting the amenity of existing residential development on adjoining sites in the alpine village is founded in local policy however:
No policy or provision in the scheme or other relevant legislation confers a right to the whole of the view over other properties in perpetuity or can give an expectation that the status quo is the accepted and expected benchmark in perpetuity.
No policy or control identifies a particular view or viewing corridor with respect to opportunities for view sharing.
50.The planning context is guided by cls 21.05, 22.01–3 and 22.05. Further, DDO1 recognises private views and assists to inform legitimate expectations about building scale on the subject land. DDO1 is seeking to ‘ensure view corridors are protected between buildings and provide opportunities for view sharing where reasonable and practical’. The same outcome applies in local policy. The decision guidelines in DDO1 include consideration of whether ‘the proposed development will not adversely impact on the amenity of adjacent buildings ...’ and, with respect to building height and setbacks ‘the effect on amenity of surrounding sites’.

It is not suggested that the Tribunal’s reasoning discloses that the purpose which it contemplated for the condition was improper. The condition was imposed for the purpose of achieving a legitimate planning outcome and by reference to criteria of relative reasonableness which it was open to the Tribunal to adopt.[32]
[32]Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1971) 23 CLR 490, 500 (Walsh J); 271 William Street Pty Ltd v City of Melbourne [1975] VR 156; Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171, 176 [15]; Western Australian Planning Commission v Tenwood Holdings Pty Ltd (2004) 221 CLR 30, 55 [56] (McHugh J), 67 [93] (Gummow and Hayne JJ).

Nevertheless, the applicant submits that the Tribunal erred because there is no intelligible rational basis for the condition imposed for the purpose identified.

More particularly, it is submitted that the condition either fails to materially improve view lines from the applicant’s apartment or in fact worsens them. Accordingly, it is submitted that the condition lacks any intelligible justification.

The Tribunal considered the impact of the proposal on the views from the applicant’s apartment in some detail:[33]

60.Apartment 302 extends across the whole of the frontage of the Alto Villas at this level. The layout comprises a central kitchen with living spaces facing north and east. There are two balconies, one facing north, and smaller balcony at the north-east corner. On entering the apartment, and moving past the kitchen area, there is an outstanding view to the mountain range provided across the subject land. Other views are enjoyed from various locations throughout the dwelling including views to the east from a rumpus room, views to the east and north-east from the living room, and views to the north and west from the larger balcony and associated living areas.
61.It is self-evident that the panorama enjoyed throughout this dwelling will be affected by the proposed development. The panorama is over a vacant lot. For similar reasons as already described, this fortuitous view cannot be expected to be retained and protected while also achieving the development expectations for the subject land set by the scheme.
62.The proposal will bring a large building into the foreground with the effect of obscuring short to mid-range views from some parts of the dwelling. The most affected parts of the dwelling will be the larger terrace and nearby windows including those associated with the kitchen. However, expansive views will be retained from the living room windows and corner balcony as well as other habitable rooms facing east.
63.There is not an obligation set by the scheme or in any other way to dictate a maximum height of RL1610.10. Indeed, the increment between that figure based on now expired endorsed plans, and the proposal at a maximum ridge height of RL1610.87 is relatively small. Having said that, it is relevant that the ridge line at RL1610.87 sits in a location that is further north on the subject land and will intersect views from multiple vantage points within Unit 302. We consider that this is an impost on the amenity of the dwelling and, with a minor modification to the roof form of the proposed building, an acceptable balance and reasonable sharing of views can be achieved.
64.The modification we will require involves stepping the roofline of the chalet level from RL1610.87 to RL1611.10 (scil RL1610.10) and then RL1609.75. The transition point is 16.4 metres from the northern boundary, which is consistent with the peak shown in plans provided by the permit applicant showing a pitched roof. The next transition point we will require is a setback of 9 metres from the northern boundary. Our nominated measuring point for these setbacks is a line that is parallel with the north-west intersect of the land with New Summit Road. We include this reference in our condition to take account of the curved site frontage notably at the eastern end. With this modification, Unit 302 will retain a reasonable view and although the main living areas in the proposed building will have a lower internal floor-to-ceiling height (unless the architect modifies the internal layout) we are satisfied that the chalets will retain an outstanding level of amenity and generous floor-to-ceiling heights.

[33]Domdada Pty Ltd v Minister for Planning [2016] VCAT 1926 [60]–[64].

Because the roof of each of the chalets comprising the upper level of the proposed development was proposed to be enclosed by a parapet on the east, south and western sides, the effect of the stepping condition is to reduce the height of the parapet as it descends the slope. In so doing, it will in part reduce, to some extent, the intrusion of the building into views from oblique angles across its front corners. We will come back to this aspect of the matter shortly. Conversely, however, the applicant submits that compliance with the condition will adversely affect the views from positions above and to the south of the proposed development by interposing a ridge at AHD[34] 1610.87 extending back from a line 16.4 metres from the northern boundary. The northern edge of the highest portion of the roof will be approximately 400 millimetres higher than would have been the height of a sloped roof in the form shown in the cross-section at [78] above.
[34]Australian Height Datum.

The judge at first instance accepted that the grant of a planning permit subject to a condition that did not in fact achieve what the decision-maker intended to achieve could be bad for unreasonableness, ‘because the Court cannot identify how the decision was arrived at and the decision appears arbitrary or without common sense’.[35]
[35]Reasons [29].

We also accept that a planning permit condition might be bad for unreasonableness if it lacks ‘an evident and intelligible justification’.[36] Nevertheless, the judge at first instance was not persuaded that the condition in the present case had been shown to lack an intelligible justification. More particularly, she recorded a dispute between the parties as to the extent to which there would be an adverse impact (if any) on views from the applicant’s apartment and, went on to accept that the stepping of the parapet would result in some improvement of oblique view lines across the proposed rooves. Her Honour concluded:

It is not the case that Condition 1(a) lacks an evident and intelligible justification. It is not arbitrary, capricious or without ‘common sense’. It is a logical response, albeit having only a slight effect, to the problem that was identified by the Tribunal resulting from the height and location of the parapets in the Application Plans. It reflects the Tribunal’s expressed desire to effect a more reasonable sharing of views.[37]

[36]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 367 [76]. See also Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 [44].

[37]Reasons [49].

Having considered the evidence before the judge at first instance for ourselves, we are not persuaded that it demonstrates that the stepping of the roof in accordance with the condition imposed by the Tribunal will result in any material adverse effect upon views from the applicant’s apartment.

As we have said, the argument is that a portion of the view which would otherwise have been available above the southern parapet of the proposed development, but down over the roof sloping to the north, will now be blocked by a stepped portion of the roof extending northwards to approximately the midpoint of the roof of each of the chalets. The argument was illustrated by aide memoire drawings based on a cross-section, but no scale cross-section was provided to the judge satisfactorily demonstrating the effect on views from the main balcony of the applicant’s apartment (being the views which are said to be detrimentally affected).

Two problems arise. First the precise extent of the setback in issue from the roof to the relevant viewpoint appears to us to materially affect the potential for the impact which is hypothesised.

Secondly, and more significantly, however, the net effect on the view from the applicant’s balcony will turn, in large part, upon the extent and nature of the view beyond and around the proposed development. As the Tribunal put it in discussing the underlying principles it should apply, the question is one of the importance of the view to be lost within the overall panorama available.

The Tribunal explained that it reached its conclusions having regard to observations that it made on a view and with the assistance of photo montages.[38] This Court is not in a position to replicate the exercise undertaken by the Tribunal. In particular, the Tribunal’s judgments were made in the context of an overall visual understanding of the landscape which it is not possible to attain without a view.
[38]Reasons [51].

Furthermore, the Tribunal came to fix conditions only after hearing detailed evidence. That evidence included evidence from town planners who undertook an assessment of the probable impact of the proposed development upon the applicant’s views.

The Tribunal had the assistance of considering the witnesses’ evidence as it was tested by cross-examination. We do not.[39]
[39]Cf City of St Kilda v Perplat Investments Pty Ltd (1990) 4 AATR 358 (Young CJ, Crocket and Southwell JJ).

Further, the Tribunal reached its conclusions in the context of a detailed consideration of the overall massing, bulk, and site responsiveness of the proposed development:[40]
[40]Domdada Pty Ltd v Minister for Planning [2016] VCAT 1926 [40]–[41] (citation omitted).

40.Having considered all submissions and evidence, we find the proposal is an acceptable response to the design principles for this location. The design objectives in DDO1 are met, including with respect to some varied requirements for DDO1-A2, and that the proposal responds appropriately to the vision for Mt Buller contained in local policy. That is, the development fits with the direction of the planning scheme to achieve the individual and identifiable resort character for Mt Buller. It does so by responding appropriately to the height and setback provisions, site coverage, materials and finishes notwithstanding the breadth of the building. More particularly:
despite the large size of the subject land, the development will sit comfortably with the other substantial buildings seen throughout the commercial precinct of the Village.
the front façade to New Summit Road is distinguished vertically and horizontally with varied setbacks and materials at upper levels.
the presentation to New Summit Road will be apparently a five level building but at 15 metres above natural ground level, consistent with DDO1’s requirements.
the materials and finishes are consistent with the alpine location and preferred character, with the opportunity to increase the amount of stonework by way of a permit condition.
the presentation of the building at ground level is consistent with the way in which other buildings in the commercial area are designed with a vehicle entry and parking.
41.We agree with the objectors that development should respond to the topography. Although the proposed building is not stepped in the same way as occurs on other sites to which we were referred, such as site 235, the outcome is a building that has a modest profile to Abominable Way of one to two storeys consistent with other development fronting the north side of Abominable Way. In addition, physical breaks are provided between the four upper level chalets to provide for views and building modulation. We agree with a wider break between the two central chalets to 4 metres. That will further open views to the north. This is an appropriate outcome for such a wide site. It accords with local policy that development should be sited to provide view corridors from publicly accessible areas and the principle of providing view corridors between buildings. Long-distance views from Abominable Way will be possible mindful that the proposal also adopts generous side setbacks from both the east and west boundaries.

It thus came to consider the impact of the roof design in a context which also included an appreciation of views through and around the proposed development. Once again, we are not in a position to share the Tribunal’s appreciation of these matters.

When all these matters are put together, we are not persuaded that the simple mathematical proposition stated by the applicant necessarily supports the conclusion that there will be any material adverse effect upon views from the applicant’s main balcony. Conversely, like the judge at first instance, we accept that the modification of the parapet design will achieve some positive impacts upon relevant view lines. In particular, it will reduce the impact on the view lines from the applicant’s front

corner balcony. The extent to which that benefit was incrementally desirable was a quintessential question of fact and degree for the Tribunal. It did not involve a question of law. Unless it can be shown that it was simply not open to the Tribunal to regard the benefit in issue as material, then the condition did have an intelligible justification. In our view, the attack on the condition must fail.

Conclusion

For the above reasons, we will grant leave to appeal with respect to the first proposed ground of appeal, but dismiss the appeal. We would refuse leave to appeal with respect to the second proposed ground of appeal.

TATE JA:

I have had the considerable benefit of reading, in draft form, the reasons of Ferguson CJ and Osborn JA.[41] With respect to the first proposed ground of appeal, I agree with their conclusion that leave to appeal should be granted but that the appeal should be dismissed. In view of their description of the relevant planning scheme control, I can briefly state my own reasons for rejecting the first proposed ground of appeal. I agree with their Honours, for the reasons they give, that leave to appeal should be refused with respect to the second proposed ground of appeal.
[41]This judgment assumes familiarity with the reasons of the Chief Justice and Osborn JA.

The Design and Development Overlay (‘the DDO’) contained in the Alpine Resorts Planning Scheme provides, in clause 43.02-2, that ‘[b]uildings and works must be constructed in accordance with any requirements in a schedule to this overlay’. It notes that a schedule may include requirements with respect to building height. Clause 43.02-2 goes on to say, in what was described by the Minister in his

written case as the ‘parent’ or leading clause,[42] that:

A permit may be granted to construct a building or construct or carry out works which are not in accordance with any requirement in a schedule to this overlay, ….

[42]See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 [70]: ‘Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme’ (citation omitted) (McHugh, Gummow, Kirby and Hayne JJ).

By describing this as the parent clause, the Minister sought to emphasise that requirements, including requirements for building height, are not in general to be viewed as mandatory because clause 43.02-2 confers an express discretionary power for permits to be granted with respect to non-complying buildings and works and subordinate provisions must give way to it.

However, the general discretionary power found in the parent clause is excluded or displaced in one circumstance, namely where the schedule ‘specifies otherwise’. That is, the proviso to the parent clause (clause 43.02-2) states: ‘… , unless the schedule specifies otherwise.’

The critical issue arising from the first proposed ground of appeal is whether the requirement for building height in clause 2.1 of Schedule 1 to the DDO ‘specifies otherwise’ so as to constrain the general discretionary power to grant a permit for the construction of non-complying buildings and works. In particular, does clause 2.1 of Schedule 1 restrict the power to grant a permit for buildings to exceed the height limit?

Schedule 1 to the DDO sets out building and design requirements under clause 2.1. With respect to building height it relevantly provides:

The development of the land should meet the following requirements:
…
The maximum height of any part of a building is 4 storeys or 15 metres above natural ground level, whichever is the lesser height. A permit may be granted to increase the height of any roof structure or chimney by 1.5 metres provided no more than 20% of the roof area exceeds 15 metres in height.

The Tribunal adopted the view that the requirement for building height in Schedule 1 did not ‘specif[y] otherwise’ because it did not contain an express statement that the general open-ended discretionary power to grant a permit was unavailable. In referring to the proviso, it said:

There is no such specification in DDO1 with respect to the building and design requirements in cl 2.1. There is scope to argue that the wording of DDO1 is not ideal and potentially ambiguous but the interpretation offered on behalf of the objectors is not accepted because DDO1 has no express specification as required by cl 43.02-2.[43]

[43]Domdada Pty Ltd v Minister for Planning [2016] VCAT 1926 [24].

The Tribunal was not referred to Stokes v Melbourne City Council.[44] In Stokes, Senior Member Byard accepted that a schedule could ‘specif[y] otherwise’ even if there was no express statement prohibiting the grant of a permit. The circumstances involved a proposal for two minor additions to an existing eight level building in East Melbourne. The responsible authority submitted that the proposal was prohibited under the planning scheme. Mr Stokes submitted that the planning scheme did not prohibit a permit being granted. There was no dispute about the merits of the planning proposal; the issue was limited to a question of law.
[44][2009] VCAT 364 (‘Stokes’).

Senior Member Byard referred to the DDO in clause 43.02 and observed that that clause applies to all planning schemes in Victoria and that, within that context, there are specific provisions for particular municipalities and further specifications in schedules. He said:

The design and development overlay provisions in clause 43.02 of the planning scheme apply, as part of the Victoria Planning Provisions to all planning schemes in Victoria. However, these provisions contemplate there being specific provisions for particular municipalities, and particular parts of municipalities to be provided for in schedules to the overlay provisions.
Thus clause 43.02 applies throughout Victoria but schedule 20 thereto, in the Melbourne Planning Scheme, applies only to Melbourne, and then only to a specified part thereof. It is in fact headed ‘Victoria Parade and Albert Street Area’.
Apart from general purposes applicable to many zone and overlay provisions the purpose of a design and development overlay is to identify areas which are affected by specific requirements relating to the design and built form of new development. …
The design objectives for schedule 20 are found in its clause 1. They read:
·To minimise the visual impact of buildings on the Fitzroy Gardens and to preserve the amenity of the gardens.
…

Clause 43.02-2 of the overlay provisions deals with buildings and works. In doing so, it deals with permit requirements. Understanding these provisions calls for a degree of concentration. In the first place, a permit is required to construct a building although this does not apply if the schedule to the overlay specifically states that a permit is not required. Obviously, this means that a permit is required, unless specified otherwise.
Clause 43.02-2 goes on to provide that buildings must be constructed in accordance with any requirements in the schedule to the overlay which requirements may include various things including building setbacks and building height. It is building height that is relevant in the present case.
The last sentence under permit requirements in clause 43.02-1 reads:
A permit may be granted to construct a building or construct or carry out works which are not in accordance with any requirement in a schedule to this overlay unless the schedule specifies otherwise.[45]

[45]Ibid [17]–[23].

He then turned to schedule 20. This related to the Victoria Parade and Albert Street Area. The question arose of whether the requirements governing building height can be varied pursuant to the general discretionary power to grant a permit under clause 43.02-2 or whether schedule 20 ‘specifies otherwise’ to negate or constrain that power. He said:

In fact schedule 20 does not specifically state that a permit is not required for the construction of a building. In the absence of such a statement, permission is required for the construction of a building. That includes part of a building and in turn, that includes these proposed extensions.
Any requirements in the schedule as to building height are not absolute or mandatory requirements. They must be observed save that they can be varied unless the schedule specifies otherwise. The question in the present case gets down to whether the provisions in the schedule do specify otherwise.[46]

[46]Ibid [24]–[25].

He queried what test was to be applied to conclude that a requirement ‘specifies otherwise’. He emphasised that ‘specify’ typically presupposes a definite indication but that this need not be in words:

There is a point … as to what is meant by the word ‘specifies’ in this context. Specify does not mean state generally in broad but uncertain terms. On the contrary, it means to state explicitly, definitely, precisely, in detail and with particularity.
It has to be stated in such a fashion but does it have to be stated in explicit words, or is it sufficient if it is stated with precision, but [through] means other than words? Other possibilities might be by means of a formula, a drawing or a plan.[47]

[47]Ibid [26]–[27].

He posed for himself the question, ‘[C]an a schedule be said to specify something if it is not stated in express words, but is stated by necessary implication? Must it be explicit, or can it be implicit?’[48] To this, he responded by accepting that the general discretionary power to grant a permit may be displaced by a schedule that implicitly ‘specifies otherwise’ providing the implication is necessary, definite and precise and not ambiguous or uncertain:

Most English words have several meanings, and some of them have many meanings. The meaning or meanings intended in a particular usage normally has to be interpreted in terms of the context in which it is used and, if it can be discerned, its purpose or intended meaning.
Here ‘specifies’ means that it must be stated clearly and with precision, not vaguely or in general or uncertain terms. However, I consider that, providing the usage is sufficiently definite and precise an implicit statement may serve as well as an explicit one. An implication that is necessary, definite and precise can be sufficient although one that is ambiguous or uncertain would not suffice.[49]

[48]Ibid [27].

[49]Ibid [28]–[29] (emphasis added).

Thus, a permit-granting power can be displaced not only by express words but by implication, although the implication must be a necessary one. The senior member ultimately concluded that schedule 20 did not necessarily imply that the general discretionary power to grant a permit was displaced. It is instructive to examine the reasoning.

The critical clause was clause 3 of schedule 20 which reads:

Clause 3 of schedule 20 appears under a heading that reads ‘Decision Guidelines’. The text reads:
In Area 43, before deciding on an application, the responsible authority must be satisfied that the building or works would not protrude above a plane elevated from the same point to the highest southern parapet of a building fronting Victoria Parade to the north of the site.[50]

[50]Ibid [46].

The general formula for deriving the applicable maximum height meant that the maximum height limit was a 22 degree plane from point X. Of clause 3, he said:

This formulation involves an inclined plane springing from the same point X on the southern side of Albert Street. However, this plane will not necessarily rise at an angle of 22 degrees from that point. In fact, clause 3 will have no application if it happens to be that the angle was 22 degrees from point X, as that would mean that its formula gave the same result as the 22-degree formula in the table.
In fact, that clause 3 plane may be at a greater angle of incline, or a lesser angle of incline, than 22 degrees. It all depends, not on any buildings on the review site, but on a building to the north of the review site fronting Victoria Parade. If there was a single storey building with a height of 4 metres on the northern site the clause 3 plane would be at a lesser angle than 22 degrees. If, on the [other] hand, there was a skyscraper on that northern site the angle of the lane rising from point X would considerably exceed 22 degrees.[51]

[51]Ibid [47]–[48].

He held that it was not a necessary implication of clause 3 that it imposed a mandatory maximum height limit. He considered two alternative interpretations, one by the responsible authority to the effect that a proper understanding of clause 3 meant that no permission could be granted to exceed a mandatory maximum height limit and one by the applicant to the effect that clause 3 does not impose a mandatory limit that cannot be exceeded with permission. He said:

What then is the effect of clause 3? I am offered two interpretations, both of which appear to have some logical merit, up to a point; but neither of which sit altogether happily with the wording employed.
The version adopted by the responsible authority is that clause 3 imposes a mandatory limit that can apply in some circumstances above the 22-degree limit. It contends that the 22-degree plane imposes what might be described as the standard maximum height limit. If the highest southern parapet of the building to the north is low so that the clause 3 plane is at an angle of less than 22 degrees, then the 22-degree plane specifies the height limit for all points on the review site. If, on the other hand, there is a high building on the northern site so that the angle of the clause 3 plane between point X and the point of the highest parapet of the northern building is greater than 22 degrees, then it is the clause 3 plane that prescribes an absolute maximum or mandatory maximum building height for the site which cannot be exceeded. No permission can be granted to exceed that plane, or so it is contended. If the northern building is high enough, the angle might be 35 degrees, 50 degrees, or more. Whatever it is, according to the responsible authority, permission can be granted pursuant to an application of the sort referred to in clause 2.1 to exceed the 22-degree plane as long as the mandatory maximum is not exceeded.
There is some appeal in this argument. It seems to make sense. It means that the new building on the review site, or an extension of it, can exceed the 22 degree plane, but only if there is, and to the extent that there is, some other higher building forming a backdrop to it when looked at from the point X viewpoint.
...
Although this explanation might make sense, is it what clause 3 actually says? The applicant contends no. The submission for Mr Stokes is that nothing in schedule 20 imposes a mandatory limit that cannot be exceeded with permission and that there is nothing in schedule 20 that specifies, in terms of the last paragraph of the permit requirement provisions in clause 43.02-1, that a permit cannot be given to vary the height requirements of schedule 20.[52]

[52]Ibid [49]–[51], [53].

He considered and applied general principles of statutory interpretation, noting the express manner in which it can be stated that a permit cannot be granted to exceed a requirement :

It is a principle of statutory interpretation that effect should be given to words in the statutory provision if that is possible, and that they should be interpreted in accordance with the purpose of the provision, where that can be discerned. While it is true that the responsible authority’s interpretation of clause 3 imposing a mandatory height limit does give effect to the words and might be said to be consistent with their purpose, the same can be said of the alternative interpretation namely that clause 3 does not impose a mandatory limit but provides a guideline to inform decision-making.
There are several important considerations in favour of the interpretation advocated by the applicant, even if that interpretation is not a perfect fit at all points. One of these is the heading of clause 3. It reads: ‘Decision Guidelines’. That is what clause 3 purports to be, rather than a mandatory limitation. ...
Furthermore, although clause 3 contains the mandatory word ‘must’ it does not use it in relation to height limit, but rather as to the state of mind that must be attained by the responsible authority.
The language used is by no means in the form normally adopted where a mandatory limit is imposed or, for that matter, where it is intended to specify that permission cannot be granted to exceed a requirement.
Ms Cincotta, on behalf of the applicant, referred to other schedules to the design and development overlay in the Melbourne Planning Scheme which contain the more usual form of words. For example, bearing in mind that clause 43.02-2 says that a permit can be granted for a building that does not accord with the requirements ‘unless the schedule specifies otherwise’, schedule 2 in its second clause specifies, ‘a permit cannot be granted to vary this requirement’. That is a perfectly clear and sensible way of saying that the particular requirement is mandatory and permission to vary it cannot be given.
A similar example occurs in schedule 15 where its clause 2 contains a sentence that reads:
A permit cannot be granted to vary the Maximum Building Height specified in Table 1 to this schedule.

It is contended for the applicant, that this is how it should be done and how it is done.
On the other hand ... other schedules lack that prohibition but are worded in terms similar to those that appear in schedule 20. In relation to building height clause 2.1 of schedule 6 provides:
Buildings or works should not exceed the Maximum Building Height specified in the Table to this schedule.

That clause goes on in somewhat similar terms to schedule 20 to talk about an application to exceed the Maximum Building Height that must demonstrate how the development will continue to achieve the design objectives and built form outcomes of the schedule and any local planning policy requirements.[53]

[53]Ibid [59]– [66] (emphasis added).

He observed that the express exclusion of a permit-granting power is the clearest and preferable way to indicate that a requirement (including a maximum height requirement) cannot be exceeded. However, as mentioned, he accepted that an implied exclusion is sufficient providing that it meets the threshold of being a necessary implication. He said:

These comparisons with the form of words used in other schedules are not always conclusive, notwithstanding that they may be relevant and carry some weight. Schedules are not always drafted at the same time or in the same drafting style, one with another. Nevertheless, I think these references to other schedules do demonstrate a clearer and preferable way of saying that it is intended to deny the power to grant permission to exceed requirements.
I think the argument of the responsible authority in relation to the interpretation of clause 3 relies on an implication rather than an express prohibition. Because of the interpretation I have applied to the word ‘specifies’ I do not think that reliance on implication is excluded. However, I do not think that the implication … the responsible authority seeks to rely upon is a ‘necessary’ implication. I think the alternative interpretation is open.
I have said that I do not think the words employed fit perfectly for either interpretation. Nevertheless, I think that advocated on behalf of the applicant is the preferable one, and I adopt it. If something different is intended it would be an advantage to everyone concerned if the real intention was expressed in clear, explicit and unambiguous terms.
In the meantime I accept that neither clause 3 nor schedule 20 specify that permission cannot be granted to exceed the height limit requirement for area 43 appearing in the table namely the formula involving the 22 degree plane. Permission can be granted to exceed that limit. It is common ground that, in those circumstances, such permission should be given.[54]

[54]Ibid [68]–[71] (emphasis added).

He held that permission could be granted to exceed the height limit because it was not a necessary implication of clause 3 of schedule 20 that the power to grant a permit was excluded. His reasoning suggests that the threshold for such necessity is stringent; indeed, it suggests that providing an interpretation which does not displace a general discretionary power to grant a permit is ‘open’ then, other things being equal, it ought be preferred.

The primary judge was referred to Stokes and she accepted that a schedule may ‘specify otherwise’ by implication:

It is common ground that the requirement that the Schedule ‘specify otherwise’ in cl 43.02-2 requires that which is ‘otherwise’ specified to be clearly and precisely stated. In this case, the Schedule does not expressly state that a permit may not be granted to vary the requirements in the Schedule. However, I accept that specification otherwise may occur by implication, as was submitted by the applicant, with the caveat that any such implication must be ‘necessary, definite and precise’.
The question is whether the Schedule specifies by ‘necessary, definite and precise’ implication that the maximum building height may not be varied.[55]

[55]Reasons [64]–[65] (emphasis in original) (citation omitted).

Her Honour rejected the view that Schedule 1 necessarily implied that a permit could not be granted to increase building height:

The fact that the Schedule expressly states that minimum setbacks and maximum site coverage requirements may be varied, but does not expressly state that maximum height requirements may be varied, does not — in and of itself — amount to specifying by ‘necessary, definite and precise’ implication that the maximum height requirement cannot be varied and is mandatory.
The applicant submits, in effect, that the words, ‘A permit may be granted to increase the height of any roof structure or chimney …’ stand in the place of words stating that a permit may be granted to vary the building maximum height. By this means, the Schedule specifies ‘otherwise’ for the purposes of the parent provision, that is, it specifies that the maximum height may not be varied.
I reject this analysis. The Schedule specifies a maximum building height and a maximum height for ‘roof structures’ and ‘chimneys’. The latter may exceed the former by 1.5 metres, subject to the limitation on roof area. In my view, the Schedule makes separate provision for roof structures and chimneys, rather than providing for roof structures and chimneys to be the only permissible extension to the height limit for buildings. Seen in this way, in combination with the word ‘should’ at the beginning of cl 2.1 and the clear intention in the parent clause that the height restriction be discretionary unless clearly specified to the contrary, the Schedule stipulates a discretionary height limit for buildings, and a discretionary height limit for roof structures and chimneys. The maximum building height may be varied and the maximum height of roof structures and chimneys may be varied.
I also reject the argument that it is necessary to imply a mandatory limit on building height in order to give meaning to the words permitting variation of set back and site coverage requirements. It is true that in the light of the provision in cl 43.02-2 for requirements to be varied, there was no need for the Schedule to state that requirements could be varied. But it does not deprive those words of meaning: they mean what they say. Their absence from the section spelling out maximum heights is, as I have held, insufficient to create a necessary, definite and precise implication that maximum heights may not be varied and, as I have also held, their absence in combination with inclusion of the words pertaining to height limits for roof structures and chimneys does not give rise to a necessary, definite and precise implication that height limits may not be varied.

I have had regard to the remainder of the Schedule and have formed the view that no statutory intention can be gleaned from its text supporting an implication that the maximum height requirements must be construed as mandatory. I see no necessary, definite and precise implication in the Schedule that the maximum height of a building cannot be varied.[56]

[56]Ibid [66]–[70].

In applying for leave to appeal from the decision of the primary judge, the applicant submitted that the judge ought to have construed Schedule 1 as in effect imposing a mandatory height limit by significantly constraining the circumstances in which a permit could be granted to exceed the height limit. She submitted that there were three alternative interpretations of the requirement governing maximum height. For convenience I set out the requirement again:

The development of the land should meet the following requirements:
...
The maximum height of any part of a building is 4 storeys or 15 metres above natural ground level, whichever is the lesser height. A permit may be granted to increase the height of any roof structure or chimney by 1.5 metres provided no more than 20% of the roof area exceeds 15 metres in height.

The applicant submitted that the words in the second sentence have the effect of ‘specifying otherwise’ by restricting the circumstances where a permit might be granted to increase the building height limit, namely, by increasing the height of any roof structure or chimney by the permissible limit (1.5 metres) providing that this does not result in 20 per cent of the roof area exceeding 15 metres in height. On this view, the general permit-granting power under clause 43.02-2 is subject to a significantly constrained discretion with respect to increases in building height, namely, the only permissible increase in building height is one that allows for the height of roof structures or chimneys to be increased by 1.5 metres. No permit can otherwise be granted for an increase in the overall building height. This is the first interpretation which the applicant submitted was the correct one.

On this basis the applicant submitted that the use of the word ‘should’ rather than ‘must’ was irrelevant because she acknowledged that the maximum building height in the requirement was not mandatory in the sense of being absolute and without a discretion to vary.[57] Rather, her submission was that there was a discretion to vary building height but it was a constrained discretion, namely, it could not be exercised with respect to the overall building height but only with respect to roof structures and chimneys. Construed in this way the use of the discretionary language ‘should’ and not the mandatory language ‘must’ was appropriate but did not assist in determining which alternative construction was correct.
[57]The applicant’s oral submissions departed somewhat from the strict terms of her first ground of appeal.

The second interpretation is that adopted by the Tribunal, described above,[58] to the effect that Schedule 1 did not ‘specify otherwise’ because there was no express provision stating that a permit could not be granted. This left the parent or leading clause conferring the permit-granting power as a general and open-ended discretion. As mentioned, the Tribunal was not referred to Stokes.[59] Moreover, the applicant submitted, the second interpretation suffers from the defect that the second sentence of the requirement is rendered otiose because if there is a general discretion to vary the maximum height requirement it would extend to roof structures and chimneys and the specifications in the second sentence would have no work to do. The second interpretation thus contravenes the presumption that ‘words are used in a statute [or legislative instrument] for a reason; they should be given their meaning and effect’.[60]
[58]See [108] above.
[59]See [109] above.
[60]Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 266 [39] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) applying Commonwealth v Baume (1905) 2 CLR 405, 414 (Griffith CJ).

The third interpretation is that adopted by the primary judge, namely, that Schedule 1 makes separate provision for the maximum height of buildings, on the one hand, and the maximum height for roof structures and chimneys, on the other. There is a discretionary height limit for buildings and a separate discretionary height limit for roof structures and chimneys. The effect of this third interpretation is that the maximum building height, and the maximum height of roof structures and chimneys, may be varied independently of each other.

The applicant submitted that it is consistent with the scheme of Schedule 1 that it identify the relevant requirement with particularity and then set out the discretionary means for departing from that requirement. Understood in this way the conditions governing the grant of a permit with respect to an increase in roof structure or chimney provide the only discretionary means by which the height limit of a building, or any part of a building, can be exceeded. She submitted that the judge’s interpretation construed the second sentence as in effect imposing a second and independent requirement, one specifically addressing roof structures and chimneys (a requirement that their maximum height can exceed the maximum height of the building by 1.5 metres provided that no more than 20 per cent of the roof area exceed 15 metres in height), which is curious given that the second sentence begins with the words ‘[a] permit may be granted’. She submitted that the third interpretation is untenable and distorted the second sentence; she asked, rhetorically, why would Schedule 1 refer to roof structures and chimneys if there was a complete discretion to vary the maximum height, as would follow if the first sentence was independent of the second? While the third interpretation attributes a meaning to each word (unlike the interpretation adopted by the Tribunal) it is artificial and fails to reflect the connection between the two sentences. The only adequate interpretation, the applicant submitted, is the first interpretation which means that the parent or leading provision permitting the grant of a permit does not apply because the requirement ‘specifies otherwise’. On this view, the Tribunal was bound to refuse the permit sought. Alternatively, the Tribunal could impose a condition to effect compliance with the requirement, for which purpose the proceeding would need to be remitted.

The applicant invited close attention to the language of clause 2.1. She emphasised that the first sentence was concerned not only with the maximum height of a building but with the maximum height of ‘any part of a building’. She submitted that ‘any part of a building’ would include roof structures and chimneys supporting the view that the restrictions in the second sentence related back to the subject matter of the first sentence and identified the only permissible exception. She also submitted that the meaning of ’roof structure’ would include the structure of the roof itself to allow, for example, for pitched roofs, thus supporting the view that the two sentences were addressing the same subject-matter, the second sentence imposing a restriction on the general discretionary power to vary the limit identified in the first sentence.

Some significance was also placed on the qualification as to roof area contained in the second sentence because it returns to the maximum height specified for buildings, namely, ’15 metres in height’. On one view, if there is an open-ended discretionary power to grant a permit to exceed the maximum building height of 4 storeys or 15 metres, this must include a power to increase the maximum height of the roof area which is subject to the 20 per cent restriction. For example, if a permit can be granted under the parent clause for the maximum height of a building to increase to, say, 16 metres, this would suggest that, under the second sentence, a permit to increase the height of a chimney or roof structure by 1.5 metres is restricted so that no more than 20 per cent of the roof area exceeds 16 metres in height. The qualification at the end of the second sentence becomes, as the Minister described it, ‘provided no more than 20 per cent of the roof area exceeds [the permitted maximum building height].’

The applicant submitted that this showed that accepting the proposition that there was an open-ended general discretionary power to increase the height limit of a building involved re-writing the requirement.

The applicant further submitted that the presence of the qualification on roof area in the second sentence, and the reference back to the maximum building height, supported the inter-connection of the two sentences in the requirement and the view that the second sentence described the only form of permissible variation to building height that could be granted; that is, the second sentence described a highly qualified discretionary power as the only discretionary power available to increase the maximum building height.

I consider that the applicant’s interpretation is open, and has some force. However, I do not consider that the language of the requirement unequivocally points in that direction. Nor do I consider that the first interpretation, that supported by the applicant, is the only tenable interpretation. In my view, the first interpretation does not satisfy the stringent threshold, as applied in Stokes, for finding that there is a necessary implication that the general permit-granting power has been displaced, or denied, or significantly constrained in respect of building height.

In my opinion, there is a connection between the first and second sentences of the requirement comprised in clause 2.1 but it is not as proposed by the applicant. If the first sentence stood alone there would be no doubt that the parent clause would support the grant of a permit to exceed the maximum building height. As Salter submitted, it is not necessary to construe the second sentence as amounting to a prohibition on permitting increases to building height except where the increase arises from the construction of roof structures or chimneys within specified limits. Rather, the two sentences in the maximum height requirement are reconcilable because they deal with different but related subjects. I agree.

In my view, the first sentence specifies the maximum building height and this is subject to the parent clause which confers a general open-ended discretionary power to grant permits to exceed that limit. The second sentence relates to a different but related subject matter. It does not impose a separate requirement. Rather, as the Minister submitted, it constrains the discretionary power conferred under the parent clause but specifically with respect to roof structures and chimneys, to allow a permit to be granted for those identified items, only to the limit of an additional 1.5 metres subject to the qualification with respect to roof area.

To this extent the applicant is correct in her submission that the second sentence constrains the general discretionary power conferred by the parent clause. But it is not a constraint on the height limit of a building. It does not mean that the only permissible extension of the height of a building is by means of extending roof structures or chimneys. It is a targeted constraint on the discretion under the parent clause; the discretion is confined where a permit is sought to exceed the height limit in respect of the construction of roof structures and chimneys. I accept that the second sentence ‘otherwise specifies’ and displaces the general discretionary power but this is only so with respect to the limited circumstance of the grant of a permit to exceed the maximum building height in respect of a chimney or roof structure. This limited constraint is what the Minister described as ‘the chimney constraint’. The second sentence does not constrain the general discretionary power to grant a permit to exceed the height limits of a building. I accept the Minister’s submission that the second sentence says nothing about the otherwise unconstrained power to grant a permit to depart from the building height requirement.

The subject-matter of the two sentences is related, both being concerned with height and pursuing the design objectives in clause 1.0 of Schedule 1, namely that:

To ensure that development within the Mt Buller Village creates and enhances the identifiable individual resort character by:
...
·Not being visually intrusive above the tree canopy or on the skyline when viewed from key public vantage points within the Village and adjoining ski fields.

reflecting the obligation on responsible authorities to take into account:

...
·The overall bulk and massing of the proposed development and its relationship to adjacent development and the streetscape and landscape setting.

...
·The intrusion into the skyline.[61]

[61]Schedule 1 clause 4.0 ‘Decision guidelines’.

However the subject-matter of the sentences are also different, one being concerned with the overall height of a building, or part of a building, and the other specifically concerned with roof structures and chimneys, and thus separately addressed. The two sentences are different in character; the first sentence imposing a requirement and the second sentence constraining the power to vary the height limit of roof structures and chimneys. As the Minister submitted, the chimney constraint is not superfluous or functionally irrelevant because it creates a constraint in specific instances. Absent that constraint, the power to grant a permit would be unconstrained in all instances; thus, the words in the second sentence have work to do.

I do not accept that the reference in the first sentence to ‘part of a building’ includes roof structures and chimneys. I accept Salter’s submission that ‘roof structures’ are air conditioners and the like. It is necessary to read ‘roof structures’ in its context. Aligned with the specific term ‘chimneys’, it indicates that it is to be understood as referring to things of the same category as chimneys; that is, structures added to the roof.[62] By singling out ‘roof structures and chimneys’ the second sentence expressly treats those items differently from ‘parts of a building’ that are not roof structures or chimneys.
[62]Ejusdem generis.

I do not accept that ‘roof structure’ includes the roof. If ‘roof structure’ included the structure of the roof itself, it would be difficult to make sense of the proviso in the second sentence that no more than 20 per cent of the ‘roof area’ was to exceed the additional 1.5 metres. The second sentence could have said that no more than 20 per cent of the ‘roof structure’ was to exceed the additional 1.5 metres.

Furthermore, I reject the view that any re-writing is involved in acknowledging that the general open-ended discretionary power will enable the roof area qualification to be varied to no more than 20 per cent of the roof area exceeding the permitted maximum building height. In my view, this is no more than a consequence of accepting that there is a connection between the power to grant a permit to vary building height and the power to vary the height of roof structures and chimneys.

I accept the approach adopted by Salter, and the Minister, of emphasising the different but related subject-matter of the two sentences. I consider the interpretation, whereby the second sentence operates as a targeted constraint on the general discretionary permit-granting power, in the identified instances of roof structures and chimneys, to be open. I consider it to be preferable to that proffered by the applicant because it preserves the general discretionary-power conferred by the parent clause. The language of the requirement does not support a constraint on the general discretionary permit-granting power beyond what the Minister described as ‘the chimney constraint’.

For these reasons, I reject the view that the power to grant a permit, pursuant to clause 43.02-2, to exceed the maximum height of a building specified in clause 2.1 of Schedule 1, is denied, displaced, or significantly constrained by the second sentence of that requirement. There is neither an express nor a necessary implication in the maximum building height requirement that denies the power to grant a permit to vary or exceed the height limit of a building or mandates that the power can only be exercised in a particular way. Clause 2.1 of Schedule 1 does not restrict the power to grant a permit for buildings to exceed the height limit. The second sentence of the requirement reflects no more than a limited and targeted constraint on the general permit-granting discretionary power, a constraint limited to the exercise of discretion in the identified instances of roof structures and chimneys. This constraint does not apply in the circumstances of the permit sought here.

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[2018] VSCA 74

28 March 2018