Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal
[2001] VSC 426
•9 November 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6062 of 2001
| SWEETVALE PTY LTD (ACN 006 852 544) | Applicants |
| JGL INVESTMENTS PTY LTD (ACN 004 756 085) | |
| V | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | |
| DENTON CORKER MARSHALL PTY LTD | Respondents |
| MINISTER FOR PLANNING MELBOURNE CITY COUNCIL |
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JUDGE: | Ashley J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 September 2001 | |
DATE OF JUDGMENT: | 9 November 2001 | |
CASE MAY BE CITED AS: | Sweetvale Pty Ltd and Anor v VCAT and Ors | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 426 | |
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Planning – decision of Victorian Civil and Administrative Tribunal that objectors’ rights of review under s. 82(1), Planning and Environment Act 1987 were limited by operation of exemptions – whether Tribunal misconstrued the Act – application of provisions of the Act and Planning Scheme in the particular circumstances – Planning and Environment Act 1987, ss. 47, 52, 64, 82.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr M. Wright, QC with Mr C. Townshend | Clayton Utz |
| For the 3rd Respondent | The Solicitor General, | Victorian Government Solicitor |
HIS HONOUR:
The Application
The question which arises in this proceeding is whether the breadth of the jurisdiction of the Victorian Civil and Administration Tribunal (“the Tribunal”) to entertain an application for review pursuant to s. 82 of the Planning and Environment Act 1987 (“the Act”) against the grant of a planning permit was as restricted as the Tribunal decided in a ruling made on 30 May 2001.
The applicants in this proceeding, Sweetvale Pty Ltd and JGL Investments Pty Ltd, are the owner and a tenant respectively of the well-known T&G building situate at 161 Collins Street, Melbourne.
The respondents to the proceeding are the Tribunal, Denton Corker Marshall Pty Ltd, the Minister for Planning and the Melbourne City Council.
The first, second and fourth respondents have indicated that they will abide the decision of the court. The second respondent, it is convenient to note, was the successful applicant for a planning permit, the relevant planning scheme was that made by the fourth respondent, and the third respondent was the responsible authority for purposes of considering and determining the fate of the application for a permit.
The permit was granted in connection with land at 167-173 Collins Street and 172-184 Flinders Lane. That land adjoins the T&G building on its Collins Street frontage. It runs further south than the T&G building – as far south as Flinders Lane.
The permit was sought by application dated 28 July 2000. The present applicants lodged objection on 13 October 2000. Notice of decision to grant a permit was dated 18 December 2000. The applicants sought a review by the Tribunal on 8 January 2001. The review was fixed for hearing on the merits for 28 May 2001. It was so fixed despite the Tribunal being alerted to the fact that there was a jurisdictional question whether the applicants could agitate all the matters which they wished to raise.
When the matter came on for hearing on 28 May 2001 the solicitor who appeared for the Minister raised the jurisdictional issue. The Tribunal resolved it in favour of the Minister. An order was made on 30 May by which the Tribunal declared which matters (I deliberately use a neutral term) the applicants were able to agitate on the review. The applicants’ application for an adjournment of the hearing of what remained of the merits of the proceeding was refused.
The orders made by the Tribunal on 30 May were the subject of application to this Court on 31 May. Master Wheeler then granted an order nisi under s. 3 of the Administrative Law Act 1978. The order nisi framed two issues – one pertaining to the jurisdiction of the Tribunal; the other to the refusal of adjournment. The Tribunal was enjoined, in substance, against further proceeding with the hearing for a certain period.
From time to time since 31 May 2001, though not in every case so as to produce a continuous impediment, the Tribunal has been prevented from further dealing with the review. In consequence, save possibly as to the question of costs in the present application, the ground of the order nisi pertaining to adjournment is not of significance. Before me, argument proceeded only upon the jurisdictional issue. There was no suggestion, I pause to say, that the applicants were not entitled to bring this proceeding under the provisions of the Administrative Law Act – whether or not they might have proceeded in reliance upon s. 148(1) of the Victorian Civil and Administrative Tribunal Act 1998.
The Planning Application, Objection, and Notice of Decision to Grant a Permit
In order to understand the argument it is necessary to briefly sketch the steps that preceded the making of the application for a review to the Tribunal (“the Tribunal application”).
Application for a Planning Permit was made by the second respondent. Use was made of a pro forma which might or might not have then been current. Whatever be the position in that respect, the application evidently complied with the requirement of Reg. 16 of the Planning and Environment Regulations 1998.
The application, involving a project the cost of which was estimated at $50M, described the way in which it was proposed the land be used or developed as follows:
“Demolition of existing 3 and 4 storey buildings and basement car parking, refurbishment and extension (including 5 levels above the top level) of the existing 9 storey Mayfair Building, and construction of a new 23 storey apartment (and some office) tower building and 2-3 storey loft style apartments above a ground level podium, for retail (including through block arcade), residential and commercial office uses together with dedicated 6 level basement car parking and loading facilities.”
No doubt the application was accompanied by detailed plans. But this at least was clear from the description: that the proposed new building was in part to be 23 storeys high – unarguably well beyond the maximum height recommended by the pertinent building control; and that the building was to incorporate a large car park, which might well not be simply an ancillary use of the land.
In the period between 28 July and 11 December 2000 there were evidently discussions between the permit applicant and the Minister as responsible authority. Amended plans were lodged by which the height of the proposed building would be a maximum of about 60 metres. The applicant also sought a permit to demolish and construct from the Heritage Council with respect to that part of the existing premises which was included in the Heritage Register.
In September 2000, on the direction of the Minister, the permit applicant was directed to give notice of the application under s. 52 of the Act. The detail of the requirement for giving notice is not clear, but it included advertising and letters. Each of the present applicants received notice by letter. As I understand it the letters said in part:
“Under the Melbourne Planning Scheme part of this application is exempt from the giving of notice and subsequent review rights. Those aspects that are not exempt form (sic) notification relate to the demolition of part of the existing building and heritage issues surrounding the proposal.”
By letter dated 13 October 2000 the present applicants objected to grant of a permit on a considerable number of grounds, reserving their rights to amplify, add to or amend those grounds.
On 18 December 2000 the Minister as responsible authority issued a Notice of Decision to Grant a Permit. It was said in the submission for the Minister in the Tribunal proceeding[1] to have been sent to “the applicant (for the permit), all objectors, and the MCC, National Trust and Heritage, who supported the development”. The Notice said that the permit would allow “development and use for the purpose of dwellings, shop, food and drink premises, office and associated car parking in accordance with the endorsed plans”. It said nothing about demolition, but really assumed that demolition would take place.
[1]Exhibit BMP5 to the affidavit of Bridget Phelan sworn 31 May 2001.
The Notice specified a number of conditions that were to attach to a permit. They included the following:
“13.The area(s) set aside for parking on the endorsed plans shall be used in connection with the lawful uses carried out on the site and must not be operated as a public car-parking facility.”
It is not clear to me whether the reference to the “area(s) set aside for parking” were one and the same as the basement car park referred to in proposed conditions 8 to 10.
On 8 January 2001 the present applicants initiated what I have called the Tribunal application.
It remains to say that on 23 February 2001 a permit for the proposed development in its amended form issued under the provisions of the Heritage Act 1995. There had been intimation by letter dated 12 December 2000 of intention to issue a conditional permit under that Act.
The Tribunal Application
The actual application is not before the court. All that is known about it is set out in paragraph 9 of Bridget Phelan’s affidavit sworn 31 May 2001. It is there deposed that the grounds of the application were that:
“The proposal is contrary to the purposes of Clause 43.01 of the Melbourne Planning Scheme because, by virtue of the design, height and setbacks of the proposed development:
¨it fails to conserve and enhance the significance of an individually listed building under the scheme, namely 167-173 Collins Street.
¨it fails to conserve and enhance the significance and the heritage character of the Collins East precinct.
¨it fails to conserve and enhance the significance and the heritage character of the Flinders Lane precinct.
¨it fails to conserve and enhance, and detracts from, the heritage character, amenity, sense of place and historic integrity of the adjacent building at 161 Collins Street.
The proposal will adversely affect the amenity of the neighbourhood, and in particular the amenity of the occupants of the adjacent building at 161 Collins Street.
The proposal is contrary to the orderly and proper planning of the area.
In determining to grant a permit to (sic) the Responsible Authority took into account extraneous considerations and failed to take into account correct considerations.
The consideration of the application for permit failed to have any, or any proper regard to the various heritage overlays affecting the site.
The consideration of the application for permit failed to have any, or any proper regard to the fact that all or part of the subject site is a heritage place under the Heritage Act and a permit for the development has not been issued under that Act.”
The last part of that paragraph was literally correct; but any impact that it might have had was, I think, overtaken by the circumstance that on 23 February 2001 a permit did issue under the Heritage Act.
The Scheme of the Act
Further in order to understand the jurisdictional issue it is necessary to refer to some of the provisions of the Act.
The Act, obviously enough, establishes a planning framework. The objectives of that framework are set out in s. 4(2). Mr Wright, for the applicants, emphasised objectives (i) and (j). They deal with ensuring that reasonable notice is given to persons affected by proposals, and with providing a suitable review process.
Planning schemes are central to the regime established by the Act. Section 6 sets out a long list of matters in respect of which a planning scheme may make provision. It is characteristic of such schemes that they make elaborate provisions for the use and development of land within the area to which the scheme applies; and that they set up a regime whereby in some circumstances a permit for use or development is required. In that context I refer to s. 6(2)(kc) and (kd). They provide that a planning scheme may:
“(kc)set out classes of applications for permits exempted wholly or in part from section 52(1) and set out notice requirements (if any) to apply in place of the requirements of that sub-section;”
and
“(kd)set out classes of applications the decisions on which are exempted from the requirements of section 64(1), (2) and (3) and section 82(1);”
Here is the starting point, so far as the Act is concerned, for the jurisdictional argument.
I go next to s. 47. It deals with applications for permits under planning schemes. Its effect is summarised, I think accurately, by the authors of Butterworths Planning and Environment Service (Victoria) this way:
“A permit is required where the planning scheme specifies that planning permission, under one or more of the provisions of the scheme, is needed to allow the proposal to succeed. Although a permit application can describe the proposal in lay terms, it will be necessary for the responsible authority to determine what particular planning permission or permissions are required for the proposal put forward in the application. Where necessary more than one permission can be sought and granted in relation to a proposal in an application.”
I next refer to s. 52. It has to do with the giving of notice to certain persons who might be expected to be affected by a permit application. By sub-s. (4) a scheme may exempt any class or classes of applications from some but not all of the notification requirements. It thus ties in with s. 6(2)(kc), though it is not identical in content. If a scheme creates some such exemption it does not operate to preclude objections being made by persons with a relevant interest – as to which see s. 57. It simply renders it more difficult for such persons to ascertain the existence of the application.
The responsible authority must consider all applications. The types of decision which it may make are set out by s. 61. If there are objectors to an application, and the responsible authority decides to grant a permit, the course it must take is set out by s. 64. By sub-s. (1) the responsible authority must notify its decision to the applicant and all objectors. By sub-s. (3) it must not issue a permit until the end of the period within which an objector may apply for a review by the Tribunal; or, if application is made, then until the application is determined or withdrawn.
It is necessary to notice s. 64(4) and (5). By sub-s. (4) a scheme may set out classes of applications the decisions on which are exempted from the requirements of sub-s. (1), (2) and (3). The difficulties that such exemptions could create for objectors are somewhat ameliorated by sub-s. (5). It provides that objectors in such a case are to receive a copy of the decision – that is, as contrasted with notice in the prescribed form.
Thus far it can be seen that the provisions of the Act concerning exemptions, if implemented in a scheme, will tend to limit the opportunities for objectors to learn of an application, and to bring an application for review before a permit has in fact issued.
Applications to the Tribunal for review of decisions made by a responsible authority may be made, inter alia, where an authority has refused to grant a permit and where it has done the converse[2]. In the latter case an objector, by sub-s. (1):
“…may apply to the Tribunal for review of a decision … to grant a permit.”
There is a difference between an unsuccessful applicant’s application for review and an application for review brought by an objector. The former can always address the entire subject matter of the original application. But that may not be so in the case of an objector’s review application. Section 82(2) and (3) provide:
“(2)A planning scheme may set out classes of applications for permits the decisions on which are exempted from sub-section (1).
(3)If a planning scheme exempts a decision of an application for a permit from sub-section (1), an application for review cannot be made under that sub-section in respect of that decision.”
[2]Sections 77 and 82.
The Melbourne Planning Scheme
That is all that need be presently said about the Act. I turn to the relevant scheme, the Melbourne Planning Scheme. Thankfully I need only refer to a limited number of its provisions. In part the document consists of the State Planning Policy Framework. Mr Wright QC, for the applicants, referred me to cl. 11, which he told me provides the framework according to which responsible authorities approach their task. In particular, he submitted, there is to be a balancing of “conflicting objectives in favour of net community benefit and sustainable development”.
The land the subject of permit application was in the Scheme’s Capital City Zone, dealt with by cl. 37.04.
The first aspect of the clause to be noted concerns the Table of Uses. A permit is required for a Section 2 use, but not for a Section 1 use. In the present case it was common ground that the uses proposed by the applicant for the permit were all Section 1 uses with the exception of proposed use as a car park. That is a Section 2 use. Assuming that use as a car park was not ancillary to a Section 1 use[3], then a permit was required in order to undertake a proposal for such a use.
[3]The matter was conducted before me on the basis that it was not ancillary, though whether such an assumption was justified is unclear. Perhaps proposed condition 13 casts some light on the matter.
It is next convenient to refer to what are called “decision guidelines”. When any application falls for decision, consideration must be given to such guidelines. They vary from one case to another. Commonly, if not always, they include criteria set out in cl. 65 of the Scheme. In the case of an application for a permit concerning the use of land, cl. 37.04-2 prescribes additional guidelines. I need not set them out.
Further concerning applications for a permit concerning the use of land, cl. 37.04-2 provides that the schedule to the Capital City Zone may specify that an application is exempt from, inter alia, “the review rights of s. 82(1) of the Act”.
I go to cl. 37.04-4. It concerns construction of a building or the construction and carrying out of works, and the demolition of buildings. A permit to construct is required unless the schedule to the zone specifies otherwise. A permit to demolish is required if the schedule so specifies. Again decision guidelines are set out. Again there is provision for exemption. The schedule to the zone may exempt an application from, inter alia, s. 82 review rights.
Next consider the schedule to the zone. It outlines, by paragraph 2.0, the circumstances in which a permit for construction or demolition is required. It sets out an exemption. The latter pertains to an application to construct a building or construct or carry out works for a Section 1 use.
The consequence of cl. 37.04 in the present case is that an application for a permit was required in respect of:
¨ use of the proposed premises as, in part, a car park;
¨ demolition of the existing building;
¨ construction of a building or the carrying out of works.
Insofar as there was application for a permit to construct a Section 1 building, an exemption applied.
It was further said to be the case that by reason of cl. 52.06 circumstances arose which required the making of a permit application. There are a number of situations in which, under that clause, a permit may be required. The matter was referred to but not much developed in argument. I will put it to one side.
The basic provisions of the Scheme – to call them basic requires a redefinition of the word – are subject to what are called overlays. The first of them that is pertinent is the Heritage overlay provided for by cl. 43.01.
As I understand it, the land and buildings at 167-173 Collins Street are a Heritage place specified in the schedule to the overlay. One of the buildings on the site is included on what is called the Victorian Heritage Register.
In such a case the clause works this way: By cl. 43.01-1 a permit is required to demolish a building, construct a building, and construct or carry out works. But no permit is required to develop a Heritage place where it is included on the Victorian Heritage Register and a permit for the development has been granted under the Heritage Act. Where a permit is required, an application for the same is exempt from s. 82 review rights in some cases. None of them were relevant here.
In the event, it was necessary that an application be made for a permit to demolish and to construct insofar as those matters were not the subject of a Heritage Act permit. That application was not subject to the exemption. At the time when the application was made no permit for development had been granted under the Heritage Act. Later such a permit was granted. The timing issue was not raised in argument before me.
It remains to say, concerning the Heritage overlay, that there are detailed decision guidelines pertaining to consideration of an application for a permit. They are not identical to the guidelines variably set out in cl. 37.04, which should not be surprising.
Finally I must refer to what are called the Design and Development overlays. They are contained in cl. 43.02.
By cl. 43.02-2 a permit is required to construct a building or carry out works, save if a schedule to the clause provides otherwise.
The same sub-clause provides that a schedule to the clause may specify that an application is exempt from, inter alia, s. 82(1) review rights.
Clause 43.02-5 sets out decision guidelines for considering an application. They are supplemented by additional guidelines specified in schedules to the overlay. Without comparing them line by line it can be said that the guidelines variously specified in cl. 43.02 are not identical either with the guidelines specified in cl. 37.04 or with the guidelines specified in the Heritage overlay, cl. 43.01.
There are 22 schedules to cl. 43.02. Four pertain to the Capital City Zone. They relate respectively to “Active Street Frontages”, “Height Controls”, “Traffic Conflict Frontage” and “Weather Protection”.
The second of the schedules specifies, inter alia, certain recommended maximum heights for buildings in different areas. A permit may be granted to construct a building not complying with such prescription. In the present case the maximum specified height was 40 metres[4]. The proposed development in part exceeded that height.
[4]Area HC5.
The fourth of the pertinent schedules requires provision of a verandah for a building with a street frontage. But there is provision for dispensation from this requirement. In the case of the proposed development, as I understand it, no provision was made for a verandah.
None of the four pertinent schedules states that a permit is not required.
Each of those schedules contains, as cl. 43.02-2 authorises, an exemption. In each case the exemption is expressed identically. Thus:
“An application to construct a building or construct or carry out works is exempt from… the review rights of s. 82(1) of the Act.”
The impact of the scheme may be summarised this way:
Application was required to be made for a permit:
(1) to use the land for a car park (on the assumption previously mentioned);
(2) to demolish the existing building, under the Capital City Zone prescription;
(3)to construct a building or carry out works, under the Capital City Zone prescription;
(4)to demolish a building, construct a building or carry out works, under the Heritage overlay, to the extent that such obligation was not the subject of a Heritage Act permit;
(5)to construct a building or carry out works under the Design and Development overlays.
There may also have been need to obtain a permit in connection with car parking, see cl. 52.06. Certainly the Tribunal considered that to have been the case. But the reason why that should be so was not made clear to me. In the circumstances, as I said earlier, I put the matter to one side.
Exemptions from the review provisions of s. 82(1) are provided for in the case of (3) and (5) above.
I consider, with respect, that the Tribunal accurately summarised the situation at paragraph 7 of its Reasons dated 7 June 2001, save that it seems to be the case that the exemption conferred in the case of (3) above only extends to Section 1 uses – and therefore not to the construction insofar as it related to a car park.
What the Tribunal Decided
It was contended for the present applicants before the Tribunal that they were entitled, in the s. 82(1) proceeding, to pursue each of the grounds specified in their application for review. Those grounds effectively opened up for debate all aspects of the development proposal, including matters requiring application for a permit in respect of the decision concerning which an exemption from review arguably applied.
The Tribunal decided that the possible reach of the review was confined by the various exemptions. Its key to its decision is found at paragraphs 54 and 55 of its reasons:
“54.Whilst the notice of decision on its face appears to be a single decision, the Tribunal considers it is not indivisible. It represents the outcome of a number of decisions made by the Responsible Authority under a number of planning controls some of which are subject to exemption provisions and some of which are not. The exemption provisions should be given force and effect in respect of the planning controls to which they apply. It is not relevant to the Tribunal’s consideration that the Respondent/Permit Applicant has chosen to make a single permit application to the Responsible Authority or that the Responsible Authority has chosen to issue a single notice of decision. This course of action does not in the Tribunal’s view operate to exclude the operation of the exemption provisions.
55.To conclude that once a party is permitted to bring an application for review under a planning control which is not subject to an exemption provision entitles that party to contest decisions made under planning controls which are subject to an exemption provision in the Tribunal’s view negates the exemption provisions and is contrary to the purpose, clear meaning and intent of the planning scheme. The intent of the planning scheme is demonstrated by Clause 37.04-4 which in one part exempts buildings and works from applications for review but in the immediately following paragraphs require a permit for demolition without exemption provisions.”
I should refer also to paragraphs 57 to 59.
“57.In the Capital city Zone it would be most unusual to find a situation where the construction of buildings and works did not involve some demolition requiring a permit. If Mr Wright is correct, then in all cases where demolition is necessary, an objector using his or her right to bring an application for review in respect of the demolition permit decision is also entitled in that application to contest all aspects of the building and works permit decision, notwithstanding however small the demolition required and the differences between the issues of demolition on the one hand and the buildings and works on the other.
58.However if there was a case where no demolition permit was required, e.g., in the Queen Victoria Hospital site, the exemption provision would exclude an objector’s application for review against the building and works permit decision.
59.The Tribunal does not accept that such an anomalous situation is intended.”
The consequence in practical terms of the Tribunal’s decision was that on the review certain matters of particular concern to the present applicants could not be challenged; in particular, as I understand it, the matter of the maximum permissible height of any building constructed on the land adjoining the T & G building.
The Applicants’ Submissions
The threads to the applicants’ submissions, as developed in argument, and subject to a matter to which I shall later refer, may be stated as a series of contentions as follows:
(1)Decisions upon particular classes of applications are exempt from review, see s. 82(2)(3).
(2)The focus must therefore be upon the application which the responsible authority decided.
(3)In the present case there was but one application for a permit.
(4)It was an application to use land in particular ways, to demolish an existing building and to construct a building or construct or carry out works.
(5)The application required consideration of a series of planning controls, each of which required permission before the responsible authority could decide to grant a permit.
(6)There was nothing wrong in a single application being made which required consideration of a number of planning controls. Indeed, that was made permissible by s. 47(1) of the Acts. Further, it was consistent with the principle that piecemeal applications should not be made with respect to use of land[5] that a single application for use and development be made.
[5]Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council and Ors (1980) 28 ALR 1 per Stephen J particularly at 13-16.
(7)In the present case, with respect to individual required permissions, there were some exemptions from review. Nonetheless, the Tribunal’s review jurisdiction was a jurisdiction to consider all aspects of the application for use and development. That was so because:
(A)The exemptions each applied in the case of an application to construct a building or construct or carry out works[6]. Here the application, viewed as it must be singly – “disaggregation” was impermissible – did not meet that description. In addition to being an application to construct a building or construct or carry out works it was an application to demolish, and for a section 2 use.
(B)Even if individual exemptions applied, they did not extend to every planning control which the application required to be considered. In those circumstances, the decision to grant a permit was properly before the Tribunal and its jurisdiction was a jurisdiction to consider all relevant town planning arguments – regardless whether such arguments pertained to a permission the application with respect to which was exempt from review.
(8)To understand the operation of the Act in such a way was consistent with a purposive approach to construction. The Second Reading Speech[7] showed that the purpose of the 1993 amendment to ss. 52, 64 and 82 of the Act was to avoid delay and expense, not to limit review rights once a matter was properly before the Tribunal.
(9)To understand the operation of the Act in the manner contended for was consistent with dicta in National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd and Anor[8]. The ambit of the Tribunal’s enquiry was to be determined by the purposes or objects of the discretion to be exercised under the planning scheme.
(10)If the review was limited by quarantining from consideration decisions pertinent to particular planning controls, it was likely to produce a distorted decision not reflecting all relevant planning considerations.
(11)The areas of exemption from review should be strictly construed and confined. Objectives of the legislation are to provide third parties with an opportunity to have input into the decision of the responsible authority and also to provide a mechanism for review. Section 82(1) is remedial in character.
(12)Decisions of the Tribunal denying a right in an applicant to challenge decisions of a responsible authority to the extent that the same were decisions upon applications subject to exemption were wrong.
[6]In the case of cl. 37.04-4, the exemption was more confined – referring to an application to construct a building or construct or carry out works for a use in section 1 of cl.37.04-1.
[7]Hansard, Assembly, 11 November 1993, p. 1695.
[8][1976] VR 592 at 606.
I said concerning the applicants’ contentions that there was a matter to which I needed to refer. It is this: at the end of the oral submissions of senior counsel for the applicants, I understood his seventh contention to be the argument set out in (A). But I am not confident that he did not advance argument (B). Moreover, having regard to the Tribunal’s reasons, and to the affidavit of Bridget Phelan[9] I think it is more probable than not that the argument advanced on 30 May was that which I have called (B) – or a variant thereof, focussing more upon the decision of the Minister than upon the application. That said, each argument ends up by a different route at the same result – that is, that on the review in this case all planning matters were open for consideration. In the circumstances, I shall deal with each of the arguments.
[9]Sworn 31 May 2001, see particularly paragraphs 12 (referring to a directions hearing held on 2 March 2001) and 30 (referring to the jurisdictional argument conducted on 30 May).
The Applicants’ Arguments Considered
I can and do accept some of the applicants’ submissions. But I do not accept their centrepiece, that is, that in determining the operation of exemptions the Tribunal was bound to treat the application for grant of a permit as being for all relevant purposes singular. In my opinion, correctly understood, although the application was singular in form, it embodied a series of applications with respect to particular building controls. That this was the fact of the matter could not be doubted. Further, although the decision to grant a permit was singular in form, it represented a discrete decision favourable to the applicant in respect of each of those building controls which required grant of a permit. That this was the fact of the matter again could not be doubted. It is true that in deciding to grant a permit it was necessary for the responsible authority to consider the matter overall, as well as or in the course of considering the individual permissions which the permit applicant had to obtain. But that does not mean that the applications made with respect to each of those controls did not have to be the subject of individual determination. Indeed, the decision guidelines, which varied from one control to the other, dictated that an individual determination did have to be made in the case of each control.
In submitting that there was only one application for a permit, then, in respect of which “disaggregation” was impermissible, the applicants’ argument was confronted by the fact that it was necessary for the responsible authority, at least, to deal with the application as a series of applications addressing particular controls. Whether that be treated as “disaggregation”, or simply as reflecting the fact that an application singular in form is not necessarily an application singular in substance, the necessary approach of the responsible authority is opposed to the notion that the application must be treated as single and compendious for the purposes of ss. 52, 64 and 82. That “disaggregation” is for some purposes necessary, even though an application is singular in form is, I add, also made clear by s. 52(4) and (6).
There having been “disaggregation” by the responsible authority so that the application single in form was necessarily determined in part as determination of a series of applications, to some of which exemptions applied, I should think it would be strange indeed if the application must thereafter be treated as one and indivisible, this rendering exemptions from review nugatory in the particular case.
In my opinion the key proposition advanced for the applicants would be apt to produce anomalous results. That provides another reason why it ought be rejected. [10]
[10]The same conclusion applies with respect to submissions 7 (A) and (B)..
Suppose that in the present case the land the subject of the application had been bare. Suppose that the permit application had applied to use the land for a section 1 use, and to construct a building where the only pertinent control was subject to an exemption from review, the exemption referring to an application to construct a building or construct or carry out works. According to the present applicants’ case, a decision to grant a permit would be unreviewable.
Next consider a case in which the only variation from the situation just described was that there were a number of controls, each subject to an exemption from review similarly worded. According to the applicants’ case a decision to grant a permit would be unreviewable.
Next suppose a case in which the only variant from the second postulated situation was that the applicant applied to use the land for a Section 2 as well as for a Section 1 use, and that one of the exemptions was confined by reference to Section 1 uses. According to the applicants’ case, the entire subject matter of the application would then be reviewable by the Tribunal. That would also be the situation (according to contention 7(B)) if one only of a series of controls was not subject to exemption from review. It would be the situation, again, if the application involved a proposed demolition as well as construction, and if there were multiple controls all subject to exemption framed by reference to an application to construct.
I accept the applicants’ argument that it is desirable, or at least not wrong, for a single application to be made which requires a responsible authority to consider a number of planning controls. I accept the submission that an application in such form may better enable a responsible authority to consider the overall planning merits of the proposal. But I do not consider that it follows that the Act and Scheme should be read so that in some cases where an application single in form is made and granted exemptions from review will operate but in other cases the same exemptions will not operate.
I should next say that in my opinion the applicants get no assistance from the Second Reading Speech. Certainly the Minister spoke of the then existing development system being cumbersome, expensive and slow; and of the need for a system that could deliver inexpensive, speedy decisions with people genuinely affected by a development being able to have their views considered. So also the Minister referred to excessive delay by reason of extensive rights of third persons to object and appeal. Counsel argued that delay would not be reduced by giving effect to exemptions so as to limit the scope of review. All that would happen is that the length of hearings would or might be reduced. I consider that is too simplistic. Delay is not exhaustively defined by reference to the period between the decision of a responsible authority and the hearing of a review.
I turn to the applicants’ argument founded on dicta in the National Trust case. In my opinion the dicta neither support the breadth of the principle formulated by the applicants nor require that in a case such as the present all possible planning issues must be ventilated on review by the Tribunal. Indeed, I consider National Trust is relevantly opposed to the applicants’ case.
I must next refer to the applicants’ submission that if decisions on certain applications were quarantined against review it was likely that the review process would produce a distorted decision not reflecting all relevant planning considerations. In this connection counsel contended that the balancing exercise required by cl. 11 of the Scheme would be prejudiced, if not rendered impossible.
I accept that, in consequence of the view I take as to the application of the exemptions, the ambit of permissible enquiry on review in a case such as the present will be confined. The Tribunal will be obliged to take certain matters as having been established. But that does not mean that remaining planning issues cannot be fully explored. It does not mean that in such exploration evidence will not be receivable which is pertinent to such issues because it would also be relevant to a matter which must be taken to be established. Finally, if and insofar as the view I take would have a tendency to produce a decision not reflecting all relevant planning considerations, that is what, in my opinion, is plainly dictated by the legislation.
I turn to counsel’s submission that provisions for exemption should be strictly construed. Section 4(2) specifies objectives of the planning framework established by the Act. Of particular relevance are the objectives set up by sub-s. (2)(i) and (j), that is, of ensuring that those affected by proposals receive appropriate notice, and that there is an accessible process for just and timely review of decisions conducted without unnecessary formality.
It is the case that ss. 6(2)(kc) and (kd) were inserted, and that amendments to ss. 52, 64 and 82 were made, subsequent to the enactment of s. 4(2); and that they reveal a plain intent to limit the scope of notice and review. Nonetheless, they do – when applied in a planning scheme – inhibit what are otherwise significant declared objectives of the planning framework set up by the Act. I would not read those amendments any more widely than their language necessitates. I accept the contention that s. 82(1) is remedial in nature. Those things said, in my opinion it avails the applicants not at all. I consider that the language of the statute and, for that matter, of the relevant parts of the planning scheme, is clear, and to the effect I have stated.
I mentioned that there were earlier relevant decisions of the Tribunal which counsel for the applicants submitted were wrongly decided. The principal decision is Oakford Australia Pty Ltd v Robert J Carrick and Associates Pty Ltd[11] which was followed in TBT Vic Pty Ltd v Melbourne City Council[12] and by the Tribunal in the present case[13]. In my opinion there is no occasion to conclude that Oakford was wrongly decided; rather the contrary.
[11]Deputy President Bruce, decision 11 February 2000, unreported.
[12][2000] VCAT 1358.
[13]Reasons at [52].
I must refer to two further matters. First, although it is implicit in what I have said already, I should make it clear that I reject a contention that the language of s. 82(1) compels a conclusion that there was for relevant purposes a single application; that reference to “a decision of a responsible authority to grant a permit” means that there must be a single and indivisible decision founded upon a single and indivisible application.
It is the fact that s 82(1) refers to “a decision” to grant “a permit”. But that does not compel a conclusion that s 82(1) operates only upon a single decision to grant a permit, this implying that there is a single and indivisible application to which the decision relates. Use of the singular does not as a matter of statutory construction necessarily exclude the plural[14]. Further, the Act contemplates the making of an application by which a number of applications requiring a permit under different planning controls are at the one time made. It would sit uneasily with that regime and with the regime of exempting applications with respect to certain planning controls from review if, even assuming that the decision to grant a permit in s 82(1) must be read in the singular, it must be read as relating to a single and indivisible application. There is no reason in logic why a decision to grant a permit should not be understood to be a decision upon applications – that is, in the plural – for grant of a permit in respect of multiple planning controls, reflecting an outcome favourable to the applicant in each instance. There is no reason in logic, to the contrary, to treat the decision to grant a permit as having been made upon a single indivisible application.
[14]Interpretation of Legislation Act 1984, s. 37(c).
Second, the Tribunal mentioned in its reasons submissions for the Minister[15] and the present applicants[16] referring to a past practice of making separate applications in respect of exempt and non exempt planning controls and of issuing separate permits or notices of decision. It seems to have been assumed that adoption of this practice, described in the Minister’s submissions as “expensive and confusing”, would have resulted in review being limited by operation of the exemptions. If that was so, and assuming that there was no other reason why separate applications could not have been made, there would seem to me to be further reason to reject the applicant’s contentions. Such a possible outcome would reinforce a perception that acceptance of the applicants’ argument would elevate form over substance.
[15]At [46].
[16]At [29].
Conclusions
The Tribunal’s orders numbered 1 and 2, made on 30 May 2001 and set out in written reasons dated 7 June 2001 were correct in principle.[17] It does not follow, as I noted earlier, that evidence would not be receivable in connection with a matter which could be the subject of review only because it would also be relevant to a decision exempt from review. Whether evidence relevant to a decision quarantined from review would be receivable in any particular instance cannot, of course, be determined in advance.
[17]That is subject, as to detail, to my observation at [56].
The Tribunal hearing not having in fact proceeded, it is unnecessary to consider the second main ground stated in the Master’s order of 31 May 2001.
I will hear the parties as to the appropriate orders.
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