Vasiliou v Claremont Street Pty Ltd

[2007] VSC 333

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST

No. 6686 of 2007

ANDREW VASILIOU	Plaintiff
v
CLAREMONT STREET PTY LTD	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 SEPTEMBER 2007
DATE OF JUDGMENT:	7 SEPTEMBER 2007
CASE MAY BE CITED AS:	VASILIOU v CLAREMONT STREET PTY LTD
MEDIUM NEUTRAL CITATION:	[2007] VSC 333

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PLANNING APPEAL – application for leave to appeal decision of Victorian Civil and Administrative Tribunal – s 148 Victorian Civil and Administrative Tribunal Act 1998 – prima facie argument regarding Tribunal’s consideration of prior development permit on adjacent land – applicant undischarged bankrupt – Business 2 zone – Clause 32.02-4 – limited third party review rights before Tribunal – no right to appeal decision on matters where no third party rights initially existed – application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Vasiliou appeared on his own behalf
For the Defendants	Mr A.G. Southall QC
For the Trustee of Mr Vasiliou’s Bankrupt Estate	Mr M. Lhuede

HIS HONOUR:

1. In this matter, Mr Vasiliou seeks leave to appeal a decision of the planning division of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) to grant a permit for a multi-storey development in Claremont Street, South Yarra. Mr Vasiliou's application is made under s.148 of the Victorian Civil and Administrative Tribunal Act 1998, and the relevant principles governing it are well known and are stated in the decision of the Court of Appeal in Secretary to the Department of Premier and Cabinet vHulls [1999] 3 VR 331.

1. Mr Vasiliou is the proprietor of an adjacent site to that forming the subject matter of the permit in issue.  Mr Vasiliou's site also enjoys a permit for multi-storey development for the purpose of serviced apartments.  Ownership of that site is now vested in Mr Vasiliou's trustee in bankruptcy, who neither opposes nor consents to the current application.  Mr Lhuede, the solicitor for the trustee, very helpfully appeared in the role of amicus curiae, to clarify the trustee's position before me this morning.

1. Mr Vasiliou has asserted enthusiastically that the proposed development for which a permit has been granted, adjacent to his own property, is "mad".  On analysis, his essential complaint is that the proposal for the neighbouring development does not take proper account of the built form of the permitted proposal for Mr Vasiliou's land.

1. First, the podium element will directly adjoin the common boundary of the two properties in circumstances where the proposed podium of Mr Vasiliou's development includes a series of balconies and windows directly abutting the same boundary.  Secondly, the tower element of the new proposal, which is some 12 storeys high, is proposed to be set back only 3 metres from the boundary, and for a short section, will have no setback whatsoever.  This has been permitted by the Tribunal in circumstances where the Council of the City of Stonnington had taken the position that the setback should be 6 metres.

1. Thirdly, it is contended that in approving the adjoining development in the form I have summarised, the Tribunal erred in law and it is also contended that it failed to accord Mr Vasiliou natural justice in that the hearing conducted by Member Quirk was not a fair one.

1. I should immediately say that I do not regard the second and third of Mr Vasiliou's main contentions as seriously arguable.

1. Although I understand what he says concerning the merits of the general set back of the tower of three metres, it seems to me that the adequacy of a generally three metre set back for a commercial tower in a Business 2 zone, ultimately turns on the exercise of the Tribunal's judgment as a matter of fact as to its appropriateness in the location having regard to the relevant planning policies and planning scheme provisions.  The Tribunal's decision does not disclose any arguable error of law in respect of the conclusion it reached, which is not of course to say that another Tribunal of fact may not have reached a different view.

1. Likewise, despite Mr Vasiliou's assertions as to the fairness of the hearing before Mr Quirk there is no credible evidence of conduct which would found a case of lack of procedural fairness.

1. Indeed, it is apparent that Mr Quirk gave Mr Vasiliou a hearing on all the issues which Mr Vasiliou wished to raise, including some which as I shall shortly demonstrate Mr Vasiliou had no right to ventilate.  In turn, Mr Quirk expressed reasons for rejecting these contentions. 

1. It can thus be said that in fact Mr Quirk gave Mr Vasiliou a fuller hearing than that to which he was strictly speaking entitled and the bald assertions of unfairness found in the affidavit of Mr Vasiliou are not sufficient to persuade me that there is an arguable case the hearing miscarried, particularly when regard is had to the account of the hearing given in the affidavit material filed on behalf of the respondent.

1. I turn then to the third matter that I have identified as being comprised in Mr Vasiliou's main contentions.  This gives rise to a much more difficult situation.  The effect of the permit granted by the Tribunal is that hypothetically Mr Vasiliou's land could be sold with the benefit of his existing permit to someone who did not have his knowledge of the respondent's proposal.

1. Whilst I accept Mr Southall's submission that one would expect full disclosure of the neighbour's proposal if Mr Vasiliou's land were sold, the fact of the matter is that the current situation gives rise to two fundamentally incompatible forms of permitted development.

1. This is most dramatically illustrated by the situation with respect to certain balconies.  If one takes the first floor of Mr Vasiliou's proposal the consequence of also allowing the development to proceed which has now been permitted by the Tribunal would be to potentially close off entirely, not only the boundary windows of Mr. Vasiliou’s development but also the balconies abutting the boundary and thereby create entirely enclosed boxes for some of the proposed units.

1. This is a sufficiently stark scenario to raise doubt as to whether the Tribunal's reasons for allowing it to arise are adequate.  Mr Quirk stated with respect to this situation as follows:

[27] In relation to Mr Vasiliou's northern wall, again I agree with Mr Gobbo and Mr Small that the northern side of this building can be redesigned so as to provide light courts and windows to rooms on boundaries and balconies for those floors from one to three that will be affected by the podium height of the proposal.  It is an unfortunate consequence of building on boundaries people have no rights to retain windows on boundaries.

1. It is arguable that the Tribunal's decision raises the question of what weight, if any, should as a matter of law be given to the existence of a prior permit for development on adjacent land when considering a permit application for land such as the subject land. It is arguable the matter does not fall simply to be decided by reference to the rules governing easements of light.

1. It seems clear that in granting and on two occasions amending a permit with respect to Mr Vasiliou's land, other divisions of the Tribunal did anticipate further development on adjacent land would take account of that permitted on Vasiliou's land (at least if development on Mr Vasiliou's land proceeded).  This is exemplified by the statement of Member Rickards with respect to one of the amendment applications relating to Mr Vasiliou's permit:

[20] All apartments have access to natural daylight. Although some have windows on the boundary which could be impacted upon if there was any new development constructed on adjoining lots.  Any such new development would still be required to take such windows into account whether they are to a serviced apartment or to a residential dwelling.  All apartments are provided with approximately 5m² terraces, either facing north or south.  Given that the apartments are either one or two bedroom the provision of this external space is considered acceptable.

1. It appears that a like view was also taken by another division of the Tribunal in respect of another version of Mr Vasiliou’s proposal.  These circumstances are such that I would have hesitation in rejecting Mr Vasiliou's arguments with respect to the podium at the leave to appeal stage.  It seems to me that if there were nothing further to consider in this case, the point raised does give rise to sufficient doubt to mean that he would ordinarily be entitled to agitate it further on appeal before this court.

1. In the event however, Mr Vasiliou faces two other threshold problems.  The first is that he is an undischarged bankrupt and the beneficial interest in the land in Claremont Street constituting the basis of his objection, is now vested in his trustee in bankruptcy.  See Marchesi v Apostolou[1]. 

   [1][2007] FCA 986.

1. The trustee has declined to participate in this appeal.  In these circumstances, there is a serious question whether Mr Vasiliou has standing to appeal, because such an appeal constitutes proceedings to protect or enhance property of which he has been divested on bankruptcy. 

1. He would face the same problem if the matter were remitted for re-hearing before the Tribunal.[2]  

   [2]See Stubberfield v Paradise Grove P/L [2000] QCA 299 and Cummings v Claremont Petroleum NL (1995) 185 CLR 124.

1. I should, however, refer to two other factual matters relating to the bankruptcy situation.  The first is that Mr Vasiliou has appealed the decision of the Federal Court, vesting the land in the trustee. It appears, having read the Federal Court decision, that such appeal is relevantly directed to findings of fact.  Having read the decision of Justice Jessup, I am satisfied it has little practical prospects of success.

1. The other matter, which on one view, is more relevant, is that the solicitor appearing to assist the Court on behalf of the trustee has advised me that it is likely there will be a surplus, and indeed, potentially a substantial surplus, upon the completion of administration of Mr Vasiliou's bankrupt estate.  This gives rise to the possibility that he may have a residual right to the Claremont Street property.

1. Partly having regard to the last matter I have referred to, and despite the serious question I have identified, I do not decide this case on the basis that the property is no longer vested in Mr Vasiliou.  There is a more fundamental problem facing Mr Vasiliou, however, which means that in my view, his application for leave to appeal must fail.

1. I am bound by the decision of the Court of Appeal in Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal[3], a matter in which the objectors were represented by Mr Wright QC and Ms Brennan, who it is apparent, ventilated all that could be put in favour of the position, which was ultimately rejected by the Court of Appeal.

   [3][2003] VSCA 83.

1. In that case, it was held that in circumstances of the type of business zone with which I am concerned, being circumstances which deliberately constrain third party objection rights, objectors have no consequential right to review a responsible authority’s decision before the Tribunal, with respect to built form issues of the type founding Mr Vasiliou's application.

1. So much flows, firstly, from the provisions of the planning scheme, which exempt buildings and work permits from third party objection rights, and in turn, s.60(3) of the Planning & Environment Act 1987.

1. This provides despite sub-s.(1)(c) (which I interpolate prima facie requires the responsible authority to consider all objections and other submissions which it receives with respect to a permit application) that if no notice is required to be given under ss. 52(1) or 57B or the planning scheme of an application, the responsible authority is not required to consider any objection or submission received in respect of the application before deciding the application.

1. In this case, both properties are in a Business 2 zone.  Under the Business 2 zone, Clause 32.02-4 requires a permit for buildings and works but exempts such applications from third party notice and review rights.[4]

   [4]Clause 32.02-4 provides under the heading Exemption from notice and review “An application is exempt from the notice requirements of Section 52(1)(a), (b), and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act”.

1. As Deputy President Gibson concluded when dismissing a stay application in respect of the permit with which I am concerned:

[12] … Therefore, Mr Vasiliou has no rights of review in respect of the permit for buildings and works at 12-14 Claremont Street.  He has rights of review in respect of the components of the permits which waive or reduce car parking spaces and the requirement for loading and unloading of vehicles, and for buildings and works under the Land Subject to Inundation Overlay, which also affects the subject land.  However, Mr Vasiliou's primary concerns do not relate to the permissions required under these provisions. (footnote omitted)

1. The difficulty which confronts Mr Vasiliou is thus that the fount of his right to appeal has been removed by the planning scheme. Whereas ordinarily as the owner of neighbouring property, he would have a right to object with respect to the permit for building and works on land directly adjoining his, the planning scheme has expressly provided that in this business zone he has no such right. In turn he had no right to agitate objections to the form of the building and works before the Tribunal and if he had no right to agitate these matters before the Tribunal, he cannot come to this Court complaining of the manner in which the Tribunal dealt with his submissions in respect of these matters.

1. Indeed it can be said that to allow an appeal to this Court on these issues would be contrary to the plain intent of the planning scheme, which it is apparent, deliberately seeks to facilitate commercial development in zones of this type and to prevent review by the Tribunal in this class of cases.

1. It follows that although I have accepted that Mr Vasiliou has at least prima facie an argument with respect to the terms in which the Tribunal dismissed his submissions relating to the podium of the proposed building, he cannot come to this court to pursue the point further and the application for leave will be dismissed.

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