Tow v Anodin
[2017] VSC 549
•15 September 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S CI 2016 05326
| KIN TOW and DAVID NEAL | Applicants |
| v | |
| ARMAND ANODIN and PATRICIA ANODIN | Respondents |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 August 2017 |
DATE OF JUDGMENT: | 15 September 2017 |
CASE MAY BE CITED AS: | Tow v Anodin |
MEDIUM NEUTRAL CITATION: | [2017] VSC 549 |
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ADMINISTRATIVE LAW – Application for leave to appeal on questions of law – No grounds of appeal with sufficient prospects of success to warrant the granting of leave to appeal – Victorian Civil and Administrative Tribunal Act 1998 s 148 - Planning and Environment Act 1987 ss 60(1)(a), 84B(2)(a).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr R Watters and Ms K Grinberg | Michael Hammond |
| For the Respondents | Mr M D Townsend | Phillips & Wilkins |
HIS HONOUR:
The applicants are the owners of 13 Rotherwood Road, Ivanhoe. The respondents are the owners of 11 Rotherwood Road. The respondents applied to Banyule City Council (‘the Council’) for a permit to replace the existing dwelling with three new dwellings. One of these dwellings has a primary frontage to Rotherwood Road. The other two have primary frontage to a laneway running between 11 and 13 Rotherwood Road. For all three dwellings, vehicle access will be from the laneway. In April 2016 the Council refused to grant a permit sought by the respondents. The respondents then sought to review that decision in the Victorian Civil and Administrative Tribunal (‘the Tribunal’). On 30 November 2016 the Tribunal set aside the decision of the Council and directed the issue of a permit as sought by the respondents.[1]
[1]Anodin v Banyule City Council [2016] VCAT 1996.
The applicants seek leave to appeal the Tribunal’s orders. The questions of law in respect of which the applicants seek leave to appeal are as follows:
(a) That the Tribunal failed to have regard to relevant considerations, namely:
(i) Clause 22.02 of the Banyule Planning Scheme (‘BPS’); and
(ii) Schedule 3 to the Vegetation Protection Overlay (‘VPO’) of the BPS.
(b) That the Tribunal failed to give adequate reasons for concluding that the proposed development was consistent with cl 22.02 and sch 3 to the VPO.
(c) That the Tribunal asked itself the wrong question in considering whether the design of the proposed building was acceptable.
(d) That the Tribunal failed to give adequate reasons for concluding that the design of the building was acceptable.
(e) That the Tribunal acted unreasonably when it concluded that the height of the roof of the third dwelling to be constructed at 11 Rotherwood Road would be several metres below the dwelling at 13 Rotherwood Road.
(f) That the Tribunal erred in finding that it could not impose a condition requiring the sealing of the whole of the laneway between the dwellings at 11 and 13 Rotherwood Road.[2]
[2]See ‘Proposed Notice of Appeal’ dated 18 March 2017, ‘Questions of Law’, [1]–[9].
I have concluded that none of the grounds of appeal in respect of the questions of law set out above have sufficient prospects of success to warrant the grant of leave to appeal. The applicants’ application for leave to appeal is dismissed.
Failure to take account of relevant considerations: Clause 22.02 and Schedule 3 to the VPO
Section 60(1)(a) of the Planning and Environment Act 1987 (‘the Act’) provides that before deciding on a permit application, a responsible authority must consider the relevant planning scheme. Section 84B(2)(a) provides that in determining an application for review under the Act, the Tribunal must take into account any relevant planning scheme. The effect of these provisions is that the Tribunal was required to take into account the BPS.
The applicants contend that the Tribunal failed to have regard to a number of provisions in cl 22.02: Residential Neighbourhood Character Policy.[3] The applicants contend, without opposition, that the proposed development is within Garden Suburban Precinct 3 and was therefore subject to the following ‘Objective and Design Response’:[4]
[3]‘Submissions on Behalf of the Applicants’ dated 9 June 2017, [11](a).
[4]Ibid [17]; See Banyule Planning Scheme, cl 22.02.
Objective Design Response To ensure new buildings and extensions are sympathetic to the current building form and architectural style [‘the built form objective’].
· Materials should match the predominant wall and roof materials in the street.
…
· Incorporate the main themes, in correct proportions and scale, from the Edwardian, Interwar or Post war or 1960s era as appropriate to the street.
Rotherwood Road is located within a General Residential Zone for the purposes of the BPS. As such, cl 32.08 of the BPS prescribes decision guidelines governing consideration of the permit application. Clause 32.08–12 provides:
Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:
…
·The objectives set out in a schedule to this zone.
·Any other decision guidelines specified in a schedule to this zone.[5]
Further, cl 5 of sch 2 of cl 32.08 provides:
The following decision guidelines apply to an application for a permit under clause 32.08, in addition to those specified in clause 32.08 and elsewhere in the scheme:
…
·Whether the proposal responds to the objectives and design responses in the Residential Neighbourhood Character Policy at clause 22.02.[6]
[5]Banyule Planning Scheme, cl 32.08-12.
[6]Ibid cl 32.08 sch 2 cl 5.
The applicants contend that the combined effect of the provisions referred to above is that the objectives and design responses in cl 22.02 constitute mandatory relevant considerations which the Tribunal was required to give consideration to. The applicants submit:
In making its decision, the Tribunal was specifically required to consider the Objectives and Responses. Clause 5 of schedule 2 to the General Residential Zone (‘GRZ’) provides that, in deciding whether to grant a permit under the GRZ control, the decision-maker must consider, among other things:
Whether the proposal response to the objectives and design responses in the Residential Neighbourhood Character Policy at clause 22.02.
The language of this decision guideline is significant. Had the drafter intended that the decision maker should simply undertake a broad brush assessment against the Policy as a whole, it could have provided for that. Instead, Clause 5 specifically directs the decision maker to consider the objectives and responses contained in the Policy.
Even in the absence of clause 5, however, consideration of the objectives and responses was a necessary part of the evaluation of compliance with the Policy which was required by the GRZ, the Vegetation Protection Overlay, Clause 55 and clause 65 of the Scheme. This is confirmed by the decision of the Supreme Court in Couttie v Bayside CC, where the Court held that a failure to address a particular objective contained in a neighbourhood character policy was an error of law.[7]
[7]‘Submissions on Behalf of the Applicants’ dated 9 June 2017, [18]–[20].
In Love v Victoria,[8] Cavanough J identified three factors which must be established in order to mount a successful challenge to a decision on the grounds of failure to take account of a relevant consideration:
[8][2009] VSC 215.
(iii) that the decision-maker did not take the consideration into account;
(iv)that the consideration was one that the decision-maker was, by law, bound to take into account; and
(v) that the intention of the relevant legislation is that a failure to take the consideration into account will result in invalidity.[9]
[9]Ibid [205]. See also Maddingley Brown Coal Pty Ltd v Environment Protection Authority (2013) 197 LGERA 259, [90]; Sunshine Coast Broadcasters Pty Ltd v Australian Communications and Media Authority (2012) 209 FCR 518, [104]; Pierce v Rockhampton Regional Council (2014) 202 LGERA 61, [33]; Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters Australia, 5th ed, 2013) [5.30].
In the first instance, it is necessary to consider whether, as contended by the applicants, the Tribunal failed to take into account the built form objective and design responses in cl 22.02 set out in [5] of this judgment.
In their written submissions, the applicants set out the relevant objective and design responses from cl 22.02 and then submit:
32.In addressing the issue of the appearance of the building, the Tribunal stated:
Finally in respect of submissions that the appearance of the dwellings comprises poor quality design, the tribunal has repeatedly found that a design is to be acceptable rather than meeting architectural excellence. It has also found that new dwellings do not need to replicate or mimic the design of the existing dwellings.
Clause 55 sets out the criteria that must be applied regarding whether a development fits into an area. It refers to matters such as setbacks to the front street, integration with the street, height, site coverage, roof form, materials and fencing. I concur with the permit applicant that it has a high level of compliance with the standards and objectives that relate to these matters.
I accept the dwellings will appear somewhat different to the Interwar dwellings, and to the newer contemporary dwellings. That does not make them unacceptable. Given their compliance with clause 55 and their use of materials and forms that are visible in the area, I am satisfied that it would be a respectful insertion into a street and neighbourhood where tempered and modest change is occurring and encouraged by the scheme.
33.Again, the process of evaluation set out in the above passages suggests that the Tribunal did not have regard to the built form Objectives and Responses:
a.The Tribunal observes that new dwellings need not replicate or mimic other dwellings. This is correct, but needs to be qualified by reference to the Objectives and Responses which expressly state that development should incorporate the ‘main themes’ of relevant eras of development. The absence of any acknowledgment of this fact suggests that the Tribunal did not turn its mind to the interplay between the Objectives and Responses and more generic planning principles.
b.Further, the Tribunal describes clause 55 as ‘set[ting] out the criteria that must be applied regarding whether development fits within an area’. Clause 55 does set out a range of primarily numerical criteria for assessment, but compliance with those criteria is not determinative of whether a proposal ‘fits within an area’. If that were correct, it would be unnecessary to have the Policy. In fact, clause 55 itself provides the opposite by requiring the Tribunal to consider compliance with the Policy as part of its assessment of compliance with clause 55. As with the vegetation Objectives and Responses, had the Tribunal had regard to the built form Objective and Responses, it is reasonable to expect it would have done so expressly when it was discussing the relevant criteria.
c.Finally, the Tribunal’s assessment is not consistent with the terms of the built form Objective and Responses. There is no consideration of whether the proposal incorporates the main Interwar themes. There is simply an observation that it will look different. Further, while the Objective and Design Responses refer to the use of the ‘predominant’ wall and roof materials, the Tribunal simply refers to materials that are ‘visible’ in the area.
34.For all these reasons, it is respectfully submitted that the Court should infer that the Tribunal did not have regard to the built form Objective and Responses in conducting its assessment and that, as a result, it committed jurisdictional error.[10]
[10]‘Submissions on Behalf of the Applicants’ dated 9 June 2017, [32]–[34] (citations omitted).
In the submissions set out above, the applicants set out [49] to [51] of the Tribunal’s reasons for decision (‘Reasons’). Also relevant for the purpose of determining whether the Tribunal failed to take into consideration the built form objective and design response are [23] to [28], [30] to [32], and [36] to [41] of the Reasons:
Neighbourhood character policy
23.Clause 22.02 Residential Neighbourhood Character policy guides my assessment of the development’s fit into the area. The objectives of the policy include ensuring that development complements and respects the desired future character of the area, and retains and enhances the identified elements that contribute to the character.
24.The site is within the Garden Suburban Precinct 3. The elements of the preferred future neighbourhood character of this precinct include:
· Designing new dwellings in an architectural style and materials that are sympathetic with existing dwellings in the street.
· Encouraging detailed design variations between dwellings to prevent mirror image street presentations.
· Maintaining the overall one or two storey scale of the dwellings in the zone.
· Encouraging new dwellings to follow the natural topography of the land.
· Providing sufficient space for tree planting in the front setback areas.
· Keeping front fencing low and permeable, and
· Designing site layouts, including basements, with spacing around dwellings to allow for the planting and future growth of trees.
25.Clause 22.02 also encourages residential development in the General Residential Zone to protect and enhance the garden suburban character of the precinct by protecting trees and creating opportunities for new vegetation. Development should provide a mix of well-designed single dwellings and medium density dwellings in garden settings, with sufficient space around dwellings to create an attractive, treed landscape setting.
26.Further guidance regarding neighbourhood character is provided by schedule 2 to the General Residential Zone and by clause 55. The schedule to the zone varies Standard B8 (Site coverage) and requires development to be less than 40%. It also varies Standard B13 (Landscaping) and requires a canopy tree to be planted for every 400m² of the site, including one large tree in the front setback.
27.The review site is also affected by the Vegetation Protection Overlay Schedule 3. The purposes of the VPO include protecting significant vegetation and trees, minimise vegetation loss and maintain local habitats.
28.Schedule 3 applies to Eaglemont, Ivanhoe and Ivanhoe East. The Schedule notes that trees are in [sic] integral part of the character of the area and vegetation dominates medium and longer distance views. Taller trees are to be retained. If they are removed, a development should include a comprehensive landscape plan. Under the VPO3, planning permission is required to remove two trees from the review site.
…
30.Including both sides of Rotherwood Road and lots within a short walk from the review site, there is a mix of dwellings in terms of architectural styles, heights, roof forms and materials. Some single dwellings have been replaced by multiple dwellings. Lots that have been redeveloped include the adjoining site to the west that contains 10 dwellings in three two/three storey buildings, and several lots to the west that now comprise multiple two storey dwellings.
31.There are also a number of new single dwellings in Rotherwood Road that comprise two storeys with robust architectural styles comprising square forms, sheer walls, flat roofs and render or brick walls. Landscaping comprises low or medium height vegetation with no taller trees. Fencing along the street largely comprises low or no fencing.
32.I am satisfied that the proposal is acceptable having regard to the policies regarding incremental change, preferred character and replacement landscaping, the eclectic mix of dwelling form and styles.
…
36.I am also not persuaded by the submissions that the dwellings would be discordant or out of place in the streetscape or the wider neighbourhood. The styles of the proposed dwellings are sympathetic to the preferred character. The dwellings would have hipped roofs, and use render and weatherboards that are commonly seen in the area. Door and window dimensions and styles are consistent with nearby dwellings.
37.The dwellings respond to the topography of the site as required by policy. The floor levels step down the site, varying by 2.1 metres and 1.2 metres. Accordingly, the eave and roof heights also step down the site. The roof of dwelling 3 would be a little higher than the ground floor wall of dwelling 1. This is site responsive, and a better response than many of the dwellings in the area that are significantly higher at their rear than their front elevations.
38.All the dwellings would have acceptable articulation on their front and east facades, particularly as they follow the alignment of the side boundary. This means they would not appear in a straight line when viewed from Rotherwood Road. Their articulation would be enhanced by the variations in materials and the setbacks of the first floor within the ground floor envelopes.
39.The ground floors of the dwellings are separated by two and one metres, while the first floors would be separated by 3.6 to 4 metres and 2.7 to 3.6 metres. I think these gaps are typical of multiple dwellings in established areas like Ivanhoe. Notably, together with the varied alignment and articulation, I am satisfied that the development as a whole would comprise separate and discrete smaller elements rather than being one undifferentiated built form extending unbroken into the site.
40.The responsible authority and the respondents say the dwellings would appear to have excessive visual bulk when viewed from the right-of-way and Rotherwood Road.
41.I think they would have a minimal presence in Rotherwood Road. People travelling west to east along Rotherwood Road would see one, two storey dwelling, unremarkable in a streetscape with many two storey dwellings. Its setback, fence, materials and style would be unremarkable.[11]
[11]Anodin v Banyule City Council [2016] VCAT 1996, [23]–[28], [30]–[32], [36]–[41].
I reject the applicants’ contention that the Tribunal failed to consider the built form objective. The passages from the Tribunal’s Reasons set out above disclose that the Tribunal did consider whether the proposed development is sympathetic to the current built form and the existing dwellings in Rotherwood Road. The Tribunal’s Reasons assess the ‘development’s fit into the area’. At [36] the Tribunal concluded that the ‘styles of the proposed dwellings are sympathetic to the preferred character’. The Reasons note that the ‘dwellings would have hipped roofs, and use render and weatherboards that are commonly seen in the area. Door and window dimensions and styles are consistent with nearby dwellings’. Thus, the Tribunal has addressed the design response of whether materials match the predominant wall and roof material on the street.
Further, whether the proposed development is sympathetic to the current built form and architectural style is not confined to consideration of cl 22.02. Clause 55 of the BPS contains provisions specifically directed to developments entailing two or more dwellings on a lot. Clause 55.02 is headed ‘Neighbourhood Character and Infrastructure’. Clause 55.02–1 provides:
Neighbourhood character objectives
To ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character.
To ensure that development responds to the features of the site and the surrounding area.
Standard B1
The design response must be appropriate to the neighbourhood and the site.
The proposed design must respect the existing or preferred neighbourhood character and respond to the features of the site.
Decision guidelines
Before deciding on an application, the responsible authority must consider:
·Any relevant neighbourhood character objective, policy or statement set out in this scheme.
·The neighbourhood and site description.
·The design response.[12]
[12]Banyule Planning Scheme, cl 55.02-1.
Paragraph 51 of the Tribunal’s Reasons expressly records the Tribunal’s finding that the proposed development complied with cl 55. A court should be hesitant to go behind the reasons expressed by a decision-maker. In Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty Ltd,[13] Dawson J stated:
Where reasons are given for a decision, it would be wrong to speculate upon matters, beyond those referred to in the reasons, which may have motivated the decision: See Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663 at 693. The reasons given by the President are those which I must accept and do accept as being his reasons.[14]
[13](1988) 78 ALR 466.
[14]Ibid 467.
Paragraph 51 of the Tribunal’s Reasons contains an express finding that the proposed development complied with cl 55. By necessary implication this is a finding that the proposed development complied with the neighbourhood character objective in cl 55.02–1. Clause 55.02–1 incorporates the neighbourhood character policy in cl 22.02. Thus, acceptance of the applicants’ submission requires the Court to make a finding inconsistent with the Tribunal’s Reasons.
I reject the applicants’ contention that the Tribunal erred in law by failing to take into account a relevant consideration, namely the built form objective and design response.
If I am wrong in reaching the conclusion set out above, the challenge on the ground of failure to take account of a relevant consideration fails because the applicants have not established that the alleged failure would result in invalidity of the permit granted by the Tribunal.
There are a number of provisions in the BPS which state that the responsible authority ‘must consider’ the objective and design responses. However, it does not follow that a failure by the Responsible Authority or the Tribunal to give consideration to an objective/design response necessarily results in invalidity. There are many cases where a failure by a decision-maker to comply with a requirement expressed in mandatory terms has been held not to invalidate a decision.[15] A failure by the Tribunal to have regard to a provision of the BPS will only result in invalidity if the purpose of the BPS is such that the Tribunal’s failure to take account of a particular provision when granting a permit will result in invalidity.[16]
[15]See Brygel v Stewart-Thornton [1992] 2 VR 387, 397–8; Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439, 445–6; Davis (a pseudonym) v The Queen [2016] VSCA 272, [59]–[61]; Tsolacis v McKinnon (2012) 38 VR 260, [62]; Redline Towing and Salvage Pty Ltd v Convenor of Medical Panels [2012] VSC 472, [8]; Ashton Millson Investments Ltd v Colonial Ltd (2001) 162 FLR 145, [38]–[39].
[16]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [93]; Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters Australia, 5th ed, 2013) [5.40].
A failure by the Tribunal to consider an objective/design response in the BPS does not automatically invalidate a decision to grant a permit. The objectives/design responses provide guidance in the decision-making process. This is made explicit by cl 22.02–1 which states, inter alia:
A suite of Design Objectives and Design Responses will be used for each precinct, to guide development outcomes that are aligned with the preferred character of Banyule’s neighbourhoods.[17]
Further, cl 32.08-12 requires the responsible authority to consider ‘as appropriate’ the objectives/decision guidelines in a schedule to the General Residential Zone.[18]
[17]Banyule Planning Scheme, cl 22.02-1.
[18]Ibid cl 32.08-12.
Mr Watters, who appeared with Ms Grinberg for the applicants, correctly conceded that compliance with the neighbourhood character design responses in cl 22.02 is not mandatory. He acknowledged that if there is non-compliance with a design response it may be that the prescribed objective can be achieved in another way.[19]
[19]Transcript of Proceedings, Tow v Anodin (Supreme Court of Victoria, S CI 2016 05326, McDonald J, 22 August 2017) T33 LL3–7.
The applicants cite the judgment of Emerton J in Couttie v Bayside Council[20] in support of the proposition that:
… consideration of the objectives and responses was a necessary part of the evaluation of compliance with the Policy which was required by the GRZ, the Vegetation Protection Overlay, Clause 55 and clause 65 of the Scheme. This is confirmed by the decision of the Supreme Court in Couttie v Bayside CC, where the Court held that a failure to address a particular objective contained in a neighbourhood character policy was an error of law.[21]
[20][2016] VSC 772 (‘Couttie’).
[21]‘Submissions on Behalf of the Applicants’ dated 9 June 2017, [20] (citations omitted).
The applicants in Couttie had sought leave to appeal against orders of the Victorian Civil and Administrative Tribunal (‘VCAT’) setting aside a decision of a responsible authority and granting a permit for the development of land at 14 Normanby Street, Brighton. The proposed development involved the demolition of an existing dwelling and the construction of a building consisting of three apartments with an attic and basement parking. Two apartments were to share the ground floor and a third apartment was located under the roof of the second level, in an attic. The applicants challenged the decision of VCAT on the basis that the Tribunal had failed to give consideration to the application of the neighbourhood character policy. The relevant policy contained an objective of ensuring that ‘new buildings and extensions do not dominate the streetscape’.[22] The related design response stipulated: ‘Recess upper level elements from the front facade’.[23] In addition, there was an avoid statement: ‘High pitched roof forms with dormer windows’.[24] Her Honour observed:
There is therefore a clear guideline to avoid high pitched roof forms with dormer windows in Precinct C1.
The Tribunal considered the roof form by reference to the expert opinion of the heritage witnesses. It did not consider the roof form by reference to neighbourhood policy and gave no consideration to the exhortation in the planning scheme to avoid high pitched roof forms with dormer windows.
In my view, given the importance of the neighbourhood character policy, its specific reference to avoiding a certain roof form, and the fact that the proposed development includes precisely what it is policy to avoid, the ‘avoid statement’ was a relevant consideration that should have received separate consideration in the context of the neighbourhood character policy objective. The Tribunal set out the relevant policy objective and discussed it in the Reasons. However, it neglected to deal with the ‘avoid statement’, while discussing the siting and width of the proposed building, its height and the fact that the design response employed a combination of hard and soft treatments.[25]
[22]Couttie [2016] VSC 772, [74].
[23]Ibid.
[24]Ibid.
[25]Ibid [75]–[77] (citations omitted).
The avoid statement in Couttie is a clear point of distinction between the Bayside Council Planning Scheme and the BPS. A failure to consider an avoid statement in a planning scheme is likely to result in the invalidity of a permit which is granted. If it were otherwise, a development could include precisely that which the planning scheme mandates should be avoided. Emerton J’s judgment is distinguishable. It does, however, reinforce the importance of addressing the particular provision which has not been taken into consideration, when determining whether the failure to do so results in invalidity.
The applicants also contend that the Tribunal erred by failing to take into consideration objectives and design responses relating to vegetation. In this respect, they point to the following objectives and design responses in cl 22.02:[26]
[26]Banyule Planning Scheme, cl 22.02.
Objective Design Response To maintain and strengthen the view of established front gardens, and tree lined streets and to reflect the predominant era of the dwellings.
· Front gardens should contain at least one (1) large tree and understorey landscaping that includes large shrubs.
…
To maintain and strengthen the garden dominated streetscape character and landscaped setting of the precinct.
…
· One (1) medium to large tree should be provided for every 400 sq.m of site area, with a preference for large trees…At least one of the large trees should be provided in the front setback.
As regards the reference in the design response to front gardens containing ‘at least one large tree’ the applicants submit:
27.The terms ‘large tree’, ‘medium tree’, ‘small tree’, although used in the Objectives and Responses cited above and throughout the Policy, are not defined in the Policy. Instead, they are defined in the Banyule City Council Neighbourhood Character Strategy 2012 (‘the Strategy’) as follows,
a. Large trees are trees with a mature height of 13+ metres; and
b.Medium trees are trees with a mature height of eight to 13 metres; and
c.Small trees are trees with a mature height of five to seven metres.
28.A fair reading of the Tribunal’s reasons indicates that it did not have regard to the Objectives and Responses relating to vegetation:
a.First, the Tribunal did not expressly refer to the Objectives and Responses. This is significant because the Tribunal did specifically identify, and quote from, a number of other parts of the Scheme to establish what it considered to [be] the framework for the assessment of compliance with the Policy. In these circumstances, the failure to refer to the Objectives and Responses supports an inference that they were not considered.
b.Second, the Tribunal failed to identify or address clear inconsistencies between the proposed development and the Objectives and Responses identified above:
i.The Objectives and Responses state at least one large tree should be provided in the front setback of each dwelling and indicate that, generally speaking, large trees should be preferred to medium trees.
ii.The proposal before the Tribunal included only two large trees, both contained in the front setback of the dwelling facing Rotherwood Road. Neither of the dwellings fronting the laneway included any large trees in either their front or rear setbacks. Instead, the landscape plan proposes two medium trees in both the front and rear setbacks.
iii.The Objectives and Responses also provide that sufficient space should be provided between the dwellings for the planting of small to medium trees.
iv.In the proposal, the gap between the dwellings is one to two metres and nothing in either the substituted plans or the landscape plans calls for any plantings in those areas.
c.Had the Tribunal considered the Objectives and Responses, it is to be expected that the Tribunal would have identified these discrepancies and considered whether or not they were acceptable. Nowhere in the reasons does it do so, however.[27]
[27]‘Submissions on Behalf of the Applicants’ dated 9 June 2017, [27]–[28] (citations omitted).
No party made any submissions before the Tribunal placing express reliance upon the objective and design responses set out above. However, there was evidence before the Tribunal regarding the existing and proposed landscaping and vegetation. The permit applicants led evidence from Mr Robert Thomson, a landscape architect. The Tribunal decision directly addresses that evidence and the issue of landscaping/vegetation:
15.…The site has some canopy and medium height vegetation along its boundaries, but the parties agree none is of high landscape or heritage value that warrants their retention.
16.…Its existing dwelling and vegetation make limited contribution to the character of the area. Its access to a right-of-way is an opportunity.
…
26.Further guidance regarding neighbourhood character is provided by schedule 2 to the General Residential Zone and by clause 55. The schedule to the zone varies Standard B8 (Site coverage) and requires development to be less than 40%. It also varies Standard B13 (Landscaping) and requires a canopy tree to be planted for every 400 m² of the site, including one large tree in the front setback.
27.The review site is also affected by the Vegetation Protection Overlay Schedule 3. The purposes of the VPO include protecting significant vegetation and trees, minimise vegetation loss and maintain local habitats.
28.Schedule 3 applies to Eaglemont, Ivanhoe and Ivanhoe East. The Schedule notes that trees are an integral part of the character of the area and vegetation dominates medium and longer distance views. Taller trees are to be retained. If they are removed, a development should include a comprehensive landscape plan. Under the VPO3, planning permission is required to remove two trees from the review site.
…
34.The schedule to the zone and clause 55 provide some quantitative guidance as to the meaning of incremental change. The proposal readily complies with the quantitative standards such as site coverage, setbacks to the front boundary and site permeability. It also readily complies with the varied Standard B13, as Mr Thomson proposes to plant eight canopy trees. This greatly exceeds the three trees required by the varied standard.
35.I am satisfied that Mr Thomson’s landscape plan would, in a relatively short period, lead to the three dwellings sitting is [sic] a generous canopy landscape setting consistent with the wider streetscape and the preferred character. I think the spaces around the dwellings provides adequate room for canopy trees, an opportunity that is taken up in Mr Thomson’s landscape plan.[28]
[28]Anodin v Banyule City Council [2016] VCAT 1996, [15]–[16], [26]–[28], [34]–[35].
In addition, the applicants contend that the Tribunal failed to give consideration to sch 3 of the VPO of the BPS. The applicants submit:
39.The proposal required a permit for the removal of two trees under Schedule 3 (‘VPO3’) to the Vegetation Protect Overlay (‘Overlay’). In considering whether to grant a permit for the removal of those trees, the Overlay required the Tribunal had to have regard to:
The statement of the nature and significance of the vegetation to be protected and the vegetation protection objective contained in a schedule to this overlay.
…
Any other matters specified in a schedule to this overlay.
40.Clause 2 of the VPO3 identifies the vegetation protection objectives to be considered. Relevantly, these include:
To ensure that prior to removal of tall trees all alternatives are considered, including redesign of proposed buildings and associated works.
41.This is reflected, in somewhat different terms, in the Decision Guidelines for VPO3 which required the Tribunal to consider whether:
All alternatives for the design of buildings and works that would avoid the need for vegetation removal, destruction or lopping have been considered.
42.The combined effect of the objective and the decision guideline is to create a strong obligation to seek to avoid to remove trees where possible by requiring the consideration of ‘all alternatives’ in the design of buildings and works.[29]
[29]‘Submissions on Behalf of the Applicants’ dated 9 June 2017, [39]–[42].
During the proceedings before the Tribunal, no party advanced any submission which raised any issue of non-compliance with the cl 22 landscape/vegetation objectives and design responses or sch 3 of the VPO. This is so notwithstanding Mr Thomson having been cross-examined by both the Council’s town planner and by Mr Neal. I raised with Mr Watters whether the applicants’ failure to oppose the permit application based on the cl 22 vegetation/landscape objectives and design responses and sch 3 to the VPO, were relevant to the determination of the application for leave to appeal. Mr Watters submitted:
Now, as regards to Vegetation Protection Overlay, the point is perhaps more clearly one where it was not raised by any party, and we’d accept that. And if that’s reason for refusing us leave in respect to the Vegetation Protection Overlay ground, then that’s fair enough.[30]
[30]Transcript of Proceedings, Tow v Anodin (Supreme Court of Victoria, S CI 2016 05326, McDonald J, 22 August 2017) T19 LL23–27.
This concession was properly made. Whether leave to appeal is granted requires consideration of the justice of the particular case.[31] There may be cases where, notwithstanding the failure of a party to advance an argument at first instance, that party should not be precluded from doing so in aid of an application for leave to appeal. In the present case, the permit applicants led evidence from a landscape architect. No party put in issue the decision guidelines under sch 3 of the VPO. It would be unjust for the applicants to be permitted to do so now.
[31]Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, [29]; Secretary to theDepartment of Premier and Cabinet v Hulls [1999] 3 VR 331, [8].
In any event, leave to appeal on this ground should be refused because the applicants’ challenge to the Tribunal’s decision on the basis of a failure to take into account sch 3 of the VPO has insufficient prospects to warrant leave to appeal being granted. The granting of a permit without taking into consideration the decision guidelines under sch 3 of the VPO does not invalidate the permit.
My reasoning in respect of the VPO applies equally to the landscape/vegetation objective and design response under cl 22. Before the Tribunal, no party put in issue compliance with this aspect of cl 22. The applicants should not be permitted to do so now.
Further, on no view could the failure to take into consideration the design responses invalidate the grant of a permit. The design responses express preferred outcomes:
·‘Front gardens should contain at least one large tree’
·‘Retain existing trees wherever possible’[32]
The applicants’ contention that the permit granted by the Tribunal is invalidated by reason of the failure to consider whether the permit applicant should plant one large tree in the front garden of 11 Rotherwood Road, or plant trees between the proposed dwellings,[33] is without merit.
[32]See Banyule Planning Scheme, cl 22.02.
[33]Transcript of Proceedings, Tow v Anodin (Supreme Court of Victoria, S CI 2016 05326, McDonald J, 22 August 2017) T55 LL9–24; ‘Submissions on Behalf of the Applicants’ dated 9 June 2017, [28](d)(vi)– [29].
In their written submissions, the applicants submit that notwithstanding their failure to advance submissions directed to compliance with the VPO, the Tribunal was not excused from having to consider the matters set out in the Overlay.[34] The applicants cite the judgment in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd[35] in support of this submission.
[34]‘Submissions on Behalf of the Applicants’ dated 9 June 2017, [47].
[35](2008) 19 VR 422 (‘Macedon Ranges’).
In Macedon Ranges, the Court of Appeal upheld an appeal from a decision of VCAT which overturned the refusal of the Victorian Commission for Gambling Regulation to grant an application for approval of premises as suitable for gaming. Section 3.3.7 of the Gambling Regulation Act 2003 provided that the Commission was not to grant an application for approval of premises as suitable for gaming unless it was satisfied that the net economic and social impact of approval would not be detrimental to the wellbeing of the community of the municipal district in which the premises are located. The Commission relied upon the results of a community survey conducted by the Macedon Ranges Shire Council as establishing an overwhelming impression that members of the local community found the prospect of gaming at its only hotel so disconcerting that it would have a significant effect on the community. In the proceedings before the Tribunal, the council did not rely upon the survey evidence. The Court of Appeal held that the evidence of community opposition was a relevant consideration that the Tribunal was bound to take into account.[36] The council’s failure to ventilate the issue of community opposition did not relieve the Tribunal of the obligation to decide for itself whether the opposition was a relevant issue and, if so, what weight was to be given to the survey evidence.[37]
[36]Ibid [40].
[37]Ibid [40]–[41].
Macedon Ranges is clearly distinguishable. The Tribunal’s satisfaction that the net economic and social impact of approval would not be detrimental to the wellbeing of the community, was a mandatory relevant consideration. This is because the legislative scheme imposed a positive obligation upon the Commission to refrain from granting approval unless satisfied there would be no detrimental impact on the wellbeing of the community. The failure of the Tribunal to address this issue invalidated the permit which it granted. The survey evidence relied upon by the Commission, but not by the Tribunal, went directly to the question of whether the Tribunal could be satisfied of a mandatory relevant consideration. Section 3.3.7 of the Gambling Regulation Act 2003 stands in stark contrast to the decision guidelines in sch 3 to the VPO.
Design quality
The applicants contend that the Tribunal erred in its approach to the assessment of the design quality of the proposed development.[38] The applicants rely upon the terms of cls 21.06 and 55.06–1 of the BPS. The former provision includes an objective of providing a ‘safe, attractive and high quality built environment’. This is supported by a specific strategy to ‘[e]ncourage high quality architecture and urban design’.[39] Clause 55.06–1 provides that in considering compliance with standard B31, the Tribunal must consider ‘whether the design is innovative and of a high architectural standard’.
[38]‘Submissions on Behalf of the Applicants’ dated 9 June 2017, [50], [59]–[61].
[39]See Banyule Planning Scheme, cl 21.06-1.
The applicants do not challenge the Tribunal’s findings in relation to design quality on the ground of failure to take into account a relevant consideration. Rather, the question of law which underpins the challenge to the Tribunal’s Reasons is:
Further, or alternatively, did the Tribunal ask itself the wrong question in considering whether the design of the building was acceptable?[40]
[40]‘Proposed Notice of Appeal’ dated 18 March 2017, ‘Questions of Law’, [5].
This question of law does not require the Court to determine whether:
(a) the Tribunal was bound to give consideration to cls 21.06 and 55.06-1 of the BPS; and
(b) whether a failure to do so would invalidate the permit granted by the Tribunal.
Rather, the primary question for determination is whether the Tribunal misdirected itself by addressing the issue of design quality in terms of ‘acceptability’.
The applicants focus attention upon [49] of the Tribunal’s Reasons:
Finally in respect of submissions that the appearance of the dwellings comprises poor quality design, the tribunal has repeatedly found that a design is to be acceptable rather than meeting architectural excellence. It has also found that new dwellings to not need to replicate or mimic the design of the existing dwellings.[41]
[41]Anodin v Banyule City Council [2016] VCAT 1996, [49].
The Tribunal’s power to grant a permit was not conditioned upon a conclusion that the proposal achieved high quality architectural design. Rather, the grant of a permit was subject to the Tribunal deciding that the proposal would produce an acceptable outcome in the terms of the decision guidelines in cl 65.01. Clause 65 mandates that the responsible authority ‘…must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause’. Clause 65.01 provides:
Before deciding on an application or approval of a plan, the responsible authority must consider, as appropriate:
·The matters set out in section 60 of the Act.
·The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
·The purpose of the zone, overlay or other provision.
·Any matter required to be considered in the zone, overlay or other provision.
·The orderly planning of the area.
·The effect on the amenity of the area.
·The proximity of the land to any public land.
·Factors likely to cause or contribute to land degradation, salinity or reduce water quality.
·Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site.
·The extent and character of native vegetation and the likelihood of its destruction.
·Whether native vegetation is to be or can be protected, planted or allowed to regenerate.
·The 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.[42]
[42]Banyule Planning Scheme, cl 65.01.
The Tribunal’s statement at [49]: ‘…the Tribunal has repeatedly found that a design is to be acceptable rather than meeting architectural excellence’ is consistent with cl 65. The effect of cl 65 is that a mandatory precondition to the granting of a permit is the Tribunal’s satisfaction that the proposal will produce an acceptable outcome. Put another way, if the Tribunal had not considered the question of whether the proposal produced an acceptable outcome, the decision would have been liable to be set aside.[43]
[43]See Hoskin v Greater Bendigo City Council(2015) 48 VR 715, [49], [50]; Crick v Bunnings Group Ltd (2011) 183 LGERA 274, [37], [42]–[46].
The Tribunal’s statement that a design is to be acceptable rather than meeting architectural excellence does not disclose legal error. Rather, it demonstrates that the Tribunal has addressed the criteria of acceptability which it was required to do pursuant to cl 65. The Tribunal did not misdirect itself by addressing the issue of design quality in terms of whether the design was acceptable. The Tribunal’s finding that the design of the proposed development was acceptable was a finding of fact which cannot be challenged in the current proceedings confined to an appeal on a question of law.
Adequacy of reasons
The applicants contend that the Tribunal failed to give adequate reasons for concluding that the proposed development is consistent with cl 22.02 sch 3 of the VPO and also for concluding that the design of the building was acceptable.[44] In Pham v Legal Services Commissioner,[45] the Court of Appeal considered the principles relating to the obligations of a judge or a judicial officer to provide adequate reasons for a decision:
[44]‘Submissions on Behalf of the Applicants’ dated 9 June 2017, [37]–[38].
[45][2016] VSCA 256.
The principles relating to the obligation of a judge, or judicial officer, to provide adequate reasons for a decision, are well established and are not in dispute. In essence, the reasons must be sufficient to enable the parties to understand the extent to which their arguments have been understood, and either accepted or rejected, and to understand the basis of the judge’s decision. In addition the reasons must be sufficient to enable an appeal court to ascertain the reasoning upon which the decision has been made. However, that obligation does not require the judge to expressly deal with each and every argument that might have arisen in the course of the case. In Hunter v Transport Accident Commission & Anor, Nettle JA (in an appeal arising out of an application under s 93(4)(d) of the Transport Accident Act 1986), stated:
... Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; ... while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue.
The adequacy of the reasons must depend upon the issues, and the nature of the proceeding, in any particular case. In an appropriate case, the reasons may be adequate by a combination of what is expressly stated, in conjunction with the inferences that necessarily arise from what is expressly stated. In Murray Goulburn Co-op Co Ltd v Fillipino, Neave JA and Beach AJA stated:
In some cases, the path of reasoning which led to the ultimate conclusion is necessarily implicit in a sufficiently detailed recitation of the relevant material upon which the decision was based.[46]
[46]Ibid [88]–[89] (citations omitted). See also Octopus Media Pty Ltd v Melbourne City Council [2017] VSC 429, [80]; Walia v Staycool Heating & Air Conditioning [2010] VSC 565, [6]–[8].
In Paul & Paul Pty Ltd v Business Licensing Authority,[47] Kyrou J (as his Honour then was) stated:
In determining whether the VCAT’s reasons are adequate, the Court does not scrutinise those reasons over-zealously with a view to finding error. Nor does the Court expect the VCAT to address every issue raised in the proceeding. It is enough for the VCAT to make findings on the material facts on which its decision turns and to explain the logic of the decision. Its reasons must also be intelligible. Reasons are not intelligible if they leave the reader to wonder about the process of reasoning which has been followed.[48]
[47][2010] VSC 460.
[48]Ibid [69] (citations omitted).
Applying the principles set out above, I have no hesitation in concluding that the Tribunal’s Reasons are adequate. First, the decision addresses the substantial points which were raised in the proceeding. There is no legitimate basis for finding that the Tribunal’s Reasons are inadequate for a failure to address issues which were not raised during the proceeding. The objectives and design responses relating to vegetation under cl 22 were not the subject of submissions before the Tribunal. The same observation may be made in respect of sch 3 of the VPO. No criticism can be levelled at the Tribunal for a failure to address matters which were not the subject of submissions.
The Tribunal identified three key issues which fell for determination:
·Does the development respect its built form and policy contexts?
·Would the development impose unacceptable amenity impacts on its neighbours?
·Would the development provide acceptable amenity for its future residents?[49]
[49]Anodin v Banyule City Council [2016] VCAT 1996, [5].
Based on the submissions and evidence before the Tribunal, the three issues identified by the Tribunal were properly identified as being the key issues which fell for determination.
I reject the applicants’ contention that the Tribunal failed to give adequate reasons for its conclusion that a design is to be acceptable rather than meeting architectural excellence.[50] The phrase ‘architectural excellence’ does not appear in the BPS. There was no express requirement under the BPS for the Tribunal to consider whether the proposal achieved architectural excellence. No party advanced any submission before the Tribunal that a finding of design excellence was a condition precedent to the granting of a permit.
[50]‘Submissions on Behalf of the Applicants’ dated 9 June 2017, [52].
The Tribunal’s assessment of the design quality by reference to whether the design was acceptable is consistent with the obligations imposed upon the Tribunal by cl 65. The terms of cl 65 have the effect that consideration of a planning permit application is:
…multi-factorial. It will require not only a predictive judgment as to potential factual consequences of the proposed use or development but also an evaluation of the weight to be given to individual matters in the context of the case as a whole.[51]
The Tribunal’s Reasons are consistent with this approach.
[51]Hoskin v Greater Bendigo City Council(2015) 48 VR 715, [54]. See also Zumpano v Banyule City Council [2016] VSC 420, [11], [14]; Knox City Council v Tulcany Pty Ltd [2004] VSC 375, [13].
In their written submissions, the applicants place particular reliance upon a decision of the Tribunal in Richmond Icon Pty Ltd v Yarra City Council.[52] The decision is readily distinguishable. Richmond Icon involved a proposal to redevelop the Dimmey’s building in Richmond. The proposal included a new glass residential tower ten storeys in height. Clause 21.05–2 of the Yarra Planning Scheme provides a non-exhaustive list of ‘benefits’ that may justify taller buildings. One benefit is ‘architectural design excellence’. Whether the proposed ten storey glass tower was of architectural excellence was a key issue in the proceeding before the Tribunal. Opposing evidence was given by two architectural experts. At [46] of its reasons, the Tribunal stated:
Whether the proposed glass tower meets the criterion of architectural excellence and what weight we should give this, if it does, is a more difficult question. There is a philosophical question as to whether such descriptions of architectural excellence should be contained within a planning scheme at all, particularly given we highlighted earlier the test of achieving an acceptable outcome and the underlying task of the Tribunal to reach the ‘correct or preferable’ decision. Nevertheless, the term architectural excellence is contained in the local planning policy framework and formed a significant component of the Council’s concern with this proposal, so we have considered this.[53]
[52][2011] VCAT 2175 (‘Richmond Icon’).
[53]Ibid [46].
Earlier in its decision, the Tribunal considered the test for whether a proposal achieves an acceptable outcome. The Tribunal stated:
An Acceptable or Ideal Outcome
15.Clause 65 requires us to consider whether the proposal will achieve acceptable outcomes. Clause 10.04 of the planning scheme contains the oft-quoted direction to responsible authorities and, upon review, the tribunal to balance competing and conflicting policies to achieve the most appropriate outcome for the community. We acknowledge ‘the community’ is a broad term and, as is the case here, a proposal may have some impacts upon parts of a community and it may also have benefits for a broader community.
16.The Supreme Court has recently considered the meaning of ‘acceptable outcomes’ within the terms of clause 65 in Rozen v Macedon Ranges SC. After referring to the provisions of what is now clause 10.04 and clause 65, Osborn J said:
[174] In Knox City Council v Tulcany Pty Ltd, I observed:
The planning scheme does not require an ideal outcome as a prerequisite to a permit. If it did, very few, if any, permits for development would ever be granted and there would be difficult differences of opinion as to whether the outcomes were in fact ideal. The Tribunal is entitled to grant a permit where it is satisfied that the permit will result in a reasonably acceptable outcome having regard to the matters relevant to its decision under the planning controls.
[175]For these reasons I accept the appellants’ submission that the test which the Planning Scheme requires to be applied is one of acceptable and not ideal outcomes.
[176]The question in the present case is whether the Tribunal’s reasons read in context demonstrate that it has failed to apply the correct test. The underlying task of the Tribunal is after all to reach the ‘correct or preferable’ decision on the material before it.
[177]In this sense the preferable outcome is not to be equated with the ‘ideal’ outcome.
17. In reference to the above, the Tribunal recently found:
[78]As the Supreme Court observed, the test of acceptable outcomes is informed by the notions of net community benefit and sustainable development. An outcome may be acceptable despite some negative characteristics. …
18.Hence, this proposal can be acceptable even if, in the eyes of some of the community, it has some negative characteristics or outcomes. A planning outcome that is ‘Pareto optimal’, i.e. a change that offers the greatest benefits for some individuals without making anyone else worse off than they were in the first instance, would be ideal. However, the complexities of cities are such that outcomes of this nature are rarely possible. Hence, the correct or preferable outcome should not be equated with an ideal outcome.[54]
[54]Ibid [15]–[18] (citations omitted).
The observations of the Tribunal regarding cls 65 and 10.04 of the Yarra Planning Scheme are directly relevant to the current proceeding. The BPS contains identical provisions. Neither the terms of the BPS nor the manner in which the proceedings were conducted required the Tribunal to provide reasons addressing the issue of design excellence.
In the present proceeding, when the Tribunal’s Reasons are read as a whole, the Tribunal concluded as a matter of fact that the proposed development achieved an acceptable standard of design in the context of both its type and location. That conclusion is a matter of fact not appellable to this Court.
The sealing of the right of way
A laneway runs between numbers 11 and 13 Rotherwood Road. The Council proposed a permit condition that would require the permit applicants to seal the right of way for the length of the development site plus three metres to the north to accommodate vehicles turning into the garage of dwelling three.[55] Mr Neal and Ms Tow proposed that the permit applicants should seal the right of way for its entire length.[56] As to whether the right of way should be sealed for its entire length, the Tribunal concluded:
I accept that two different surfaces may appear somewhat discordant. However, I have no reasonable basis to require the permit applicant to reconstruct and seal all the right-of-way. Permit conditions must relate to, and have a clear nexus with the permission being granted. The requirement to reconstruct and seal the right-of-way arises from the need to provide trafficable and safe vehicle access to and from the review site. This can be achieved by sealing the right-of-way adjacent to the property. Sealing all the right-of-way is unnecessary to meet the outcome.[57]
[55]Anodin v Banyule City Council [2016] VCAT 1996, [75].
[56]Ibid [76].
[57]Ibid [77].
In the current proceeding, the applicants submit:
A fair reading of the reasoning here is that the Tribunal concluded that it could not impose a condition because it was not strictly necessary for the development to proceed, given that safe access from Rotherwood Road (but not Townsend Street) could be provided by partial sealing.[58]
[58]‘Submissions on Behalf of the Applicants’ dated 9 June 2017, [66].
No question of law is raised by the applicants’ challenge to the Tribunal’s reasoning. The Tribunal concluded that there was no reasonable basis to require the permit applicant to re-seal all of the right of way. To have done so would have required the permit applicant to fund the re-sealing of the laneway well beyond the third dwelling to be constructed. Contrary to the applicants’ submission, the Tribunal’s finding does not involve any misapprehension of its powers. It simply reflects the Tribunal’s assessment of what was and was not reasonable. This was a finding which was open to the Tribunal. It does not involve any error of law.
Irrationality
The applicants contend that the Tribunal’s finding: ‘The roof of dwelling 3 is likely to be several metres lower than the dwelling of number 13 Rotherwood Road’, is irrational. The applicants contend that there was no evident and intelligible justification for making that finding.[59]
[59]Ibid [75]–[76].
In order to address the applicants’ contention, it is necessary to set out the section of the Tribunal’s Reasons which contains the finding which is challenged on the grounds of irrationality:
52.Mr Neal and Ms Tow reside at no.13 Rotherwood Road, on the east side of the right-of-way, opposite the review site. They have an outdoor terrace and kitchen/living room at the first floor rear of their dwelling. They say the development would adversely affect the amenity of their dwelling through its unbroken visual bulk that would be visible from their first floor terrace and adjacent family room.
53.I accept that Mr Neal and Ms Tow enjoy expansive views to the north and west from their terrace and kitchen. I also accept that the height of the terrace, the slope of the land downward from their terrace and the open vegetation provide long distance views in which nearby built form is relatively muted in a generous landscape setting.
54.Dwelling 1 would not be visible from the terrace. I accept that dwellings 2 and 3 would be readily visible in their views. However, while visible, I am not persuaded that they would not be unreasonably imposing or overbearing for the following reasons.
55.Firstly, I think their views of a landscaped setting would not be greatly changed. Unlike their dwelling, the floor levels and roofs of dwellings 2 and 3 follow the topography. The roof of dwelling 3 is likely to be several metres lower than the dwelling of No.13 Rotherwood Road. This would enable views from their terrace over that dwelling.[60]
[60]Anodin v Banyule City Council [2016] VCAT 1996, [52]–[55].
The assumption underpinning the applicants’ challenge to the findings set out above is that [55] refers to the roof line of dwelling three being likely to be several metres lower than the first floor terrace at the rear of the applicants’ home at number 13 Rotherwood Road. The flaw in this assumption is that it requires words to be read into [55]. At face value, the Tribunal has compared the roof level of proposed dwelling three with the roof level of number 13 Rotherwood Road. The conclusion that the roof level of dwelling three would be likely to be several metres lower than the roof level of number 13 is consistent with the fact that the roof of dwelling three follows the sloping topography of the land at number 11 Rotherwood Road. So read, the challenge to the finding at [55] on the grounds of irrationality must be rejected.
Conclusion
None of the proposed grounds of appeal have sufficient prospects of success to warrant the grant of leave to appeal. The application for leave to appeal is dismissed. I will provide the parties with an opportunity to make submissions on the question of costs.
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