Shalit v Jackson Clement Burrows Architects Pty Ltd
[2002] VSC 528
•2 December 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
No. 6321 of 2002
| GREGORY SHALIT and MIRIAM FAINE | Appellants |
| v | |
| JACKSON CLEMENT BURROWS ARCHITECTS PTY LTD | First Respondent |
| and | |
| BOROONDARA CITY COUNCIL | Second Respondent |
| and | |
| MELBOURNE WATER | Third Respondent |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 November 2002 | |
DATE OF JUDGMENT: | 2 December 2002 | |
CASE MAY BE CITED AS: | Shalit and Faine v Jackson Clement Burrows | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 528 | |
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PLANNING LAW – appeal from the Victorian Civil and Administrative Tribunal – construction of a new dwelling – inappropriate to control the development with criteria unrelated to the planning scheme control – appeal dismissed
Planning and Environment Act 1987 – sections 4, 60, 84B.
Bropho v Western Australia (1990) 171 CLR 1
Glen Eira City Council v Gory (2001) 9 VPR 101
Klein v Domus (1963) 109 CLR 467
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592
RSL Glenroy Sub-branch v Moreland City Council [1998] 2 VR 406
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APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr M Dreyfus QC with Ms A Johns | Minter Ellison |
| For the First Respondent | Mr S R Morris QC | Best Hooper |
HER HONOUR:
This is an appeal on a question of law under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 against a decision made on 12 June 2002 by the Victorian Civil and Administrative Tribunal (“the Tribunal”) constituted by Member Baird, varying a decision of the second respondent (“the Council”) as responsible authority under the Boroondara Planning Scheme (“the planning scheme”) and directing the Council to issue a permit, subject to certain conditions not here significant, for the construction of a dwelling on the subject land. Leave to appeal was granted by this Court on 30 August 2002. There was no appearance by the Council or by the third respondent, Melbourne Water.
On or about 2 July 2001 the first respondent applied to the Council for a planning permit to develop the subject land, known as 28 Creswick Street Hawthorn, by the demolition of the existing dwelling and the construction of a new two storey dwelling. A notice of decision to grant a permit was issued by the Council. The appellants, who own and occupy 30 Creswick Street, the adjoining property to the south, applied to the Tribunal for review of that decision, and it is the decision of the Tribunal on that application which is here under appeal.
The subject land is located on the west side of Creswick Street falling to the west, towards the Yarra River, and abutting on the west a park forming part of the Yarra River corridor.
Under the planning scheme the subject land is zoned Residential 1, and is affected by an Environmental Significance Overlay and a Significant Landscape Overlay. No permit is required for the proposed development under any of these controls. However, the western end of the property is also affected by a Land Subject to Inundation Overlay (“the inundation overlay”), under which a permit is required to construct a building. That is the only provision under which a permit is required for the proposed development.
Clause 44.04 of the planning scheme, dealing with the inundation overlay, reads as follows, so far as relevant:
44.04 Land Subject To Inundation Overlay
Purpose
To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
To identify land in a flood storage or flood fringe area affected by the 1 to 100 year flood or any other area determined by the floodplain management authority.
To ensure that development maintains the free passage and temporary storage of floodwaters, minimises flood damage, is compatible with the flood hazard and local drainage conditions and will not cause any significant rise in flood level or flow velocity.
To reflect any declaration under Division 4 of Part 10 of the Water Act, 1989 where a declaration has been made.
To protect water quality in accordance with the provisions of relevant State Environment Protection Policies, particularly in accordance with Clauses 33 and 35 of the State Environment Protection Policy (Waters of Victoria).
44.04-1 Buildings and works
A permit is required to construct a building or to construct or carry out works, including a fence and roadworks.
[Exceptions listed which are not here relevant]
. . .
44.04-5 Decision guidelines
Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:
vThe State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
vAny local floodplain development plan.
vAny comments from the relevant floodplain management authority.
vThe existing use and development of the land.
vWhether the proposed use [or] development could be located on flood-free land or land with a lesser flood hazard outside this overlay.
vThe susceptibility of the development to flooding and flood damage.
vThe potential flood risk to life, health and safety associated with the development. Flood risk factors to consider include:
·The frequency, duration, extent, depth and velocity of flooding of the site and accessway.
·The flood warning time available.
·The danger to the occupants of the development, other floodplain residents and emergency personnel if the site or accessway is flooded.
vThe effect of the development on redirecting or obstructing floodwater, stormwater or drainage water and the effect of the development on reducing flood storage and increasing flood levels and flow velocities.
vThe effect of the development on environmental values such as natural habitat, stream stability, erosion, water quality and sites of scientific significance.
The Tribunal found that its discretion was to be exercised by reference only to matters arising under the inundation overlay, namely flooding, the impact of the proposed dwelling on the passage and storage of floodwaters, and the capacity of the floodplain. By virtue of the first of the decision guidelines in clause 44.04-5 of the planning scheme, it considered the relevance of the decision guidelines in clause 22.07, dealing with Neighbourhood Character Policy and clause 22.13, dealing with Yarra Valley Environs Policy. However, it found only one of those guidelines to be relevant to floodplain management.
Having reached that conclusion, the Tribunal was satisfied by the evidence of Dr McCowan, a water engineer, and the submissions put forward on behalf of Melbourne Water that, subject to certain conditions, the proposed development was acceptable in terms of the purposes and decision guidelines of the inundation overlay. Accordingly, it made the decision described in [1] above directing that the permit issue, subject to those conditions.
Counsel for the appellants had submitted to the Tribunal that the proposed dwelling would affect his clients’ property in terms of scale, visual bulk and overshadowing. As to this submission, the Tribunal said:
. . . while the applicants for Review may well have valid concerns in relation to the impact of the proposed development on their amenity, such as visual bulk, there is clearly no basis within any of the relevant [planning scheme] provisions to give any latitude to the Tribunal to take those direct amenity impacts into consideration. No permit is required pursuant to the Residential 1 Zone and nothing within the state or local policies validly raises off-site amenity impacts into consideration as part of this Application. I consequently make no further comment on issues such as overshadowing, visual bulk and loss of views.
The principle on which the Tribunal relied is conveniently set out in the following passage cited by the Tribunal from the editors of the Victorian Planning Reports, referring to [1] :
. . . the long held principle that where the need for a permit is triggered by a planning scheme control imposed for a specific purpose, then it is inappropriate to seek to control any aspect of the development or use which is unrelated to the control itself.
In this case, as has been said, the need for a permit is triggered only by the inundation overlay, a control imposed for the specific purposes set out in clause 44.04 of the planning scheme.
[1](2001) 8 VPR 122. Mr Dreyfus disclaimed any editorial responsibility for that passage.
Mr Dreyfus, for the appellants, referred to section 84B of the Planning and Environment Act 1987 (“the Act”), which reads, in summary:
84B.Matters which Tribunal may take into account
(1)In determining an application for review under this Act, the Tribunal -
(a)must take into account any relevant planning scheme;
(b)must have regard to the objectives of planning in Victoria;
(c) to (ha)[a number of other specific matters, all but one of which is introduced by the words “must (where appropriate”);
(i)must take account of any other matter which the Tribunal is required by the provisions of this Act or any other Act to take account of in determining the application for review.
(2)The matters set out in sub-section (1) are in addition to any other matters which the person or body in respect of whose decision the application for review is made could properly take account of or have regard to or is required to take account of or have regard to in making its decision.
The “objectives of planning in Victoria”, referred to in section 84B(1)(b), are set out in section 4(1) of the Act, which reads:
4.Objectives
(1)The objectives of planning in Victoria are -
(a)to provide for the fair, orderly, economic and sustainable use, and development of land;
(b)to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;
(c)to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;
(d)to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;
(e)to protect public utilities and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community;
(f)to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e);
(g)to balance the present and future interests of all Victorians.
Mr Dreyfus submitted that section 84B(2) required the Tribunal, standing in the shoes of the responsible authority to consider, for example, the matters set out in section 60 of the Act and in clauses 41 and 65 of the planning scheme. Section 60(1) reads:
60.What matters must a responsible authority consider?
(1)Before deciding on an application, the responsible authority -
(a)must consider -
(i)all objections and other submissions which it has received and which have not been withdrawn; and
(ii)any decision and comments of a referral authority which it has received; and
(iii)any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development; and
(b)if the circumstances appear to so require, may consider -
(i)any significant social and economic effects of the use or development for which the application is made; and
(ii)any strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council; and
(iia)any amendment to the planning scheme which has been adopted by a planning authority; and
(iii)any other relevant matter.
Clause 41 of the planning scheme deals with the operation of overlays. That clause provides that the provisions of an overlay apply in addition to the provisions of the zone and any other provision of the planning scheme, and requires the responsible authority to decide whether the proposal would produce acceptable outcomes in terms of the State Planning Policy Framework, the Local Planning Policy Framework, the purpose and decision guidelines of the overlay and any of the other decision guidelines in Clause 65 of the planning scheme.
Clause 65 provides:
Before deciding on an application or approval of a plan, the responsible authority must consider, as appropriate:
vThe matters set out in Section 60 of the Act.
vThe State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
vThe purpose of the zone, overlay or other provision.
vAny matter required to be considered in the zone, overlay or other provision.
vThe orderly planning of the area.
vThe proximity of the land to any public land.
vFactors likely to cause or contribute to land degradation, salinity or reduce water quality.
vWhether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site.
vThe extent and character of native vegetation and the likelihood of its destruction.
vWhether native vegetation is to be or can be protected, planted or allowed to regenerate.
vThe degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.
Mr Dreyfus then referred to other provisions of the planning scheme. Clause 19.03 of the State Planning Policy Framework, relating to Design and Built Form, contains sixteen “design principles” under ten different headings. It includes a statement that:
Development should achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties.
The Overview of the Urban Character of Boroondara in clause 21.05-1, forms part of the Municipal Strategic Statement. It refers to “a need to manage development on privately owned land to protect views from the river (both foreground and skyline) as well as to provide views towards the river”. Clause 22.07, containing the Neighbourhood Character Policy, is part of the Local Planning Policy Framework. The contents of the policy are set out as fifteen and potentially twenty-four points. Clause 22.13, the Yarra Valley Environs Policy, to which the Tribunal referred [2] , lists policy in three points and contains six “decision guidelines”.
[2]See [6] above.
The issue between the parties is whether the passage cited in [9] above is a correct statement of the law.
Mr Dreyfus submitted that the Tribunal’s finding as to the ambit of its discretion was incorrect, and had led to its failing to take into account considerations which were relevant to the exercise of its discretion under the inundation overlay. It should have considered the requirements of all of the provisions of the Act and the planning scheme which are set out or described in [10] to [16] above (“criteria”). Those provisions required it to consider such matters as overshadowing, visual bulk and loss of views, which were the matters which concerned the appellants.
Mr Morris, for the first respondent, relied on the decision of the Full Court (Gowans, Menhennitt and Newton JJ) in National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Limited[3] . The Court was concerned with an application under clause 24(4) of the Melbourne Metropolitan Planning Scheme for a permit to erect a building in excess of the height permitted by that clause in the relevant area. Clause 5A of that planning scheme required the responsible authority, when considering an application for a permit, to consider the primary purpose for which the land was zoned, the orderly and proper planning of the area, the proximity of the land to any reservation, and the amenity of the neighbourhood. The Court said [4] :
The ground of the order nisi which encompasses all the aspects of the appellant's case and expresses it with most precision is that set out in ground 3A in the order nisi (as now amended)-- "The Tribunal was wrong in law in holding that it was irrelevant to consider (i) that the building and gardens existing on the property had historical and architectural significance; and/or (ii) that the proposed development would adversely affect the character and amenity of the area because it would involve the demolition of the existing building." . . .
In relation to the application under clause 24(4) of the Planning Scheme the argument was to the effect that having regard to the provision in clause 5A of the Planning Scheme it was a consideration relevant to the grant or refusal of a permit under that sub-clause to exceed the stipulated height that the orderly and proper planning of the area within which the land was situate and the amenity of the neighbourhood would or could be adversely affected by the demolition of an historic building to make way for the projected building of the height sought.
The latter part of this argument meets immediately with difficulty. For the purpose of the grant of the discretion is to control the height of buildings in a particular area. Notwithstanding the general words of clause 5A the responsible authority is not entitled "to introduce into the considerations affecting the grant of a licence an element foreign to the duties" of the authority in that regard, or to engage "in a consideration of matters extraneous to the application for a licence", or matter which is "too remote" therefrom. (Victorian Railways Commissioners v McCartney and Nicholson (1934), 52 CLR, at pp. 390, 395, 398.) "The discretion must be used and the power exercised bona fide and with the view of achieving ends or objects not outside the purposes for which the discretion or power is conferred." (Shrimpton v The Commonwealth (1945), 69 CLR, at pp. 620, 627, 631, and 632). The discretion conferred by clause 24(4) is one conferred for the purpose of controlling the height of buildings. In that connection it is proper to have regard to what is prescribed by clause 5A. But to use that discretion for the purpose of endeavouring to ensure the conservation of an historic building and to regulate the orderly and proper planning of the area in which it is situate and the amenity of the neighbourhood, in other respects than with regard to the height of the building, is to endeavour to achieve ends outside the purpose for which the power is conferred and to intrude into the exercise of the discretion matters which are extraneous to it. The responsible authority could not properly refuse the permit under the Planning Scheme on such considerations and could not properly have regard to them in determining whether to grant a permit or not.
[3][1976] VR 592
[4]at 605-6
Applying that passage to the facts of the instant case, Mr Morris submitted that the discretion conferred on the Council as responsible authority by the inundation overlay – that is, the discretion whether or not to grant a permit for the construction of a dwelling on land part of which was subject to that overlay – could not be used to regulate such matters as overshadowing, visual bulk and loss of views. The purposes of the discretion were those set out in clause 44.04 of the planning scheme, and the exercise of the power was limited by reference to those purposes.
Mr Dreyfus submitted that the National Trust case did not establish that the Tribunal was required in every case to determine the purpose for which the discretion was conferred, and by reference to that purpose to confine the matters to be taken into account. That case was authority for the proposition that where the relevant statute was silent as to whether a particular matter was to be considered, a consideration of the purpose of the statute might disclose some implied limitation which excludes consideration of that matter.
He referred to RSL Glenroy Sub-branch v Moreland City Council[5] and Glen Eira City Council v Gory [6] as examples of cases where the Court had considered matters other than the requirements of the specific provision under which a permit was required for a particular use or development, namely legislative directions to the Tribunal as to the matters which it was to consider.
[5][1998] 2 VR 406
[6](2001) 9 VPR 101
In the RSL case the Full Court found that the Tribunal should have allowed the appellant, opposing the grant of a permit for a development, to put forward evidence in support of its contention that, in terms of section 60(1)(b)(i) of the Act, the circumstances appeared to require the consideration of significant social and economic effects of the development in question. However, it is not apparent from the report what was the specific control under which the permit was required, or what was the purpose of that control, and the case does not appear to me to be of assistance in the determination of the issue before me. Similarly, in Glen Eira v Gory, the specific control under which a permit was required does not appear from the report. In that case the Court found merely that the Tribunal had not failed to “consider, as appropriate” a particular policy contained in the Municipal Strategic Statement of the Local Planning Policy Framework of the Glen Eira Planning Scheme.
Mr Dreyfus relied on the well-known passage from the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend[7] where His Honour said:
The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s 5(2)(b) of the [Administrative Decisions (Judicial Review) Act 1977] which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:
(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision . . .
(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors — and in this context I use this expression to refer to the factors which the decision-maker is bound to consider — are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard. . . . By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.
(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision . . .
[7](1986) 162 CLR 24 at 39
Mr Dreyfus submitted that the effect of paragraph (b) of that passage is that it is only where the legislation in question (in this case the Act and the planning scheme) does not specify the matters to be taken into account in the exercise of a particular discretion, that it is necessary to look to the purpose of the conferral of the discretion in order to determine what those matters are. This was the position in National Trust. However, he submitted, given that the Act as it now stands, and the provisions of the planning schemes, set out a number of matters to be taken into account by the decision-maker, whether the responsible authority or the Tribunal, on an application for a planning permit, the decision-maker does not have power to determine an application for a permit solely on the basis of the purpose of a specific provision; all of the matters set out must be taken into account.
The exercise of a wide discretion of the kind described by Mason J was considered by Dixon CJ in Klein v Domus[8] in the following terms:
This Court has in many and diverse connexions dealt with discretions which are given by legislation to bodies, sometimes judicial, sometimes administrative, without defining the grounds on which the discretion is to be exercised and in a sense this is one such case. We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and at what is its real object. If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.
[8](1963) 109 CLR 467 at 473
However, both of those authorities are concerned specifically with the position where the legislation gives no guidance as to the matters to be taken into account, and accordingly guidance may be sought from the purpose of the enactment. If the Full Court in National Trust had seen themselves as applying that principle, they would have said so. They were not in that position; criteria were provided by clause 5A of the Melbourne Metropolitan Planning Scheme. The criteria were expressed in broad terms; and the court in effect found that they were to be interpreted by reference to the purpose for which the discretion was conferred. The cases do not say that where criteria are provided by the legislation, the decision is not to be guided by the purpose for which the discretion was conferred.
The number of different and potentially conflicting criteria in the legislation (including both the Act and the planning scheme) is such that it is necessary to find some guiding principle to enable decisions to be made. It will be noticed that many of the criteria are prefaced by some phrase such as “consider, as appropriate”, which of itself confers a wide discretion to decide what is appropriate to be considered, without specific criteria to guide the exercise of that discretion.
The solution found by the Full Court in 1976, considering the application of four widely drafted criteria, was to find that the discretion of the decision-maker should be exercised in accordance with the purpose for which that discretion had been conferred. Subsequently, statutes and planning schemes have been prepared in the light of an awareness of that decision and its implications. The planning scheme was prepared and was approved by the relevant Minister pursuant to the Victoria Planning Provisions (“VPP”) appearing in Part 1A of the Act, which was introduced into the Act in 1996, twenty years after the decision in National Trust. Other amendments were made to the Act at the same time. Had it been intended that, in the operation of the VPP planning schemes, the principle for which National Trust has been consistently cited should no longer apply, it would have been very easy for Parliament to enact a provision to that effect.
In Bropho v Western Australia[9] the High Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ), referring to rules of construction requiring clear and unambiguous words before a statutory provision will be construed as displaying a legislative intent to achieve a particular result, said:
Examples of such “rules” are those relating to the construction of a statute which would abolish or modify fundamental common law principles or rights. . . . The rational of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear. Thus, the rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that it is “in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used” (Potter v Minahan (1908) CLR 277, at p.304)
It cannot be assumed that by including so many criteria in the legislation which relate to the exercise of discretions to grant planning permits, Parliament, or the Minister in approving the planning scheme, can be said to have intended to override the principle in National Trust [10] .
[9](1990) 171 CLR 1 at 17-18
[10]I leave on one side the fact that they would have been well aware that had they done so, and required all possibly relevant criteria to be taken into account on the making of every decision on an application for a planning permit, the system of planning created by the VPP schemes would have been unworkable.
For the reasons given, I find no error of law in the decision of the Tribunal. The appeal will be dismissed. Counsel may wish to make submissions as to costs.
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