Appellant v Respondents

Appellant v Respondents - [2005] VSC 422 - VSC 2005 case summary — Zoe

[5]

4 The appellant wishes to develop its land for the purposes of shops, a convenience restaurant and associated car parking. The complex is intended to be anchored by a 2,160 square metre supermarket, with up to six specialty shops having a combined floor area of 760 square metres alongside the supermarket and the convenience restaurant standing alone in a 174 car space car park.

5 Both "shop" and "convenience restaurant" are as of right uses within the Business 1 zone.

6 The appellant requires a permit for the construction of the proposed buildings and the carrying out of the proposed works comprised in the development.

7 The appellant's proposal is opposed by the first respondent ("the Council") on strategic planning grounds. The Council contends that the development should not be permitted because it would interfere with the establishment of a village centre at a preferred location some 700 metres to the north of the appeal land.

8 The appeal land contains some valuable remnant vegetation which the appellant proposes to substantially retain on a rear section of the site directly behind the proposed supermarket.

9 Initially both the Department of Sustainability and Environment (being charged with responsibility in connection with the native vegetation) and VicRoads (being charged with responsibility for the Midland Highway) objected to the permit. The appellant has, however, been able to reach an accommodation with both these referral authorities on the basis of proposed permit conditions.

10 The Council failed to make a decision in relation to the appellant's development application within the prescribed time and in December 2004 the appellant applied to the Victorian Civil and Administrative Tribunal ("the Tribunal") for a review of the Council's failure to make a decision.

11 The application for review was heard by a senior member of the Tribunal in April 2005, and in June the Tribunal directed that the development permit not be granted. The Tribunal gave written reasons for its decision and it is apparent from these reasons that the Tribunal so directed on the basis of its conclusions concerning the broader strategic and site specific context of the proposed development.[1]

12 If shop were a section 2 use and a permit were required for that use, it is clear that the Tribunal could have held that a permit for that use was inappropriate on the basis of the principles stated in Kentucky Fried Chicken Pty Ltd v Gantides[2]:

[43]

"In that case the applicant sought a permit to develop and use an industrial estate upon land currently zoned rural. The permit was refused on the grounds that the development would be premature and that the grant of a permit would prejudice the future planning of the area. The then Town Planning Appeals Tribunal accepted the responsible authority's contention that the land which was currently zoned rural would probably come within one of the "Green Wedges" proposed in the strategy document published by the responsible authority entitled The Future Growth of Melbourne. Smith J (with whom Adam J agreed) observed:

'... in the view of the Tribunal, the proposals referred to would probably be brought into force and the subject land included within one of the green wedges. And as the effect of the proposals was that the lands within the green wedges were to be kept as open space between corridors of development, the conclusion so stated by the Tribunal negatived the appellant's first argument. Far from the appropriate use having ceased to be rural and become industrial, the probable future course of development of the locality made a strict confinement to use as open space the appropriate form of use for this land.'

After further considering the Tribunal's reasons Smith J concluded:

'... I consider that it was open to the Tribunal, on the material before it, to hold that the proposed use was premature; and I consider that, having regard to the way the case was conducted before it, the Tribunal was entitled to take into account the proposed green wedges and the proposals relating to them which were contained in the publication The Future Growth of Melbourne. Those matters, in my view, were relevant to a consideration of the appellant's contention that the appropriate use of the land had ceased to be rural and had become industrial.'

In our view it is clear that the majority of the Court accepted that it was open to regard the strategic plan for metropolitan Melbourne including green wedges as both relevant and potentially determinative of the case before the Tribunal."

[44]

44 It can be seen that in the Portland Properties case Smith J expressed his conclusion specifically by approving the Tribunal's reliance on the concept of prematurity. Likewise, as noted above, the Tribunal has subsequently applied this specific concept in other circumstances such as the TEAC case. In my view it is clear that in the present case the Tribunal deliberately applied this concept of prematurity to the facts before it. It ultimately concluded that the strategic planning circumstances rendered the grant of a permit "premature." It did not reject the proposal outright. Insofar as it considered the relevance of land use considerations to a permit application for development approval, it ultimately applied such considerations specifically within the context of asking itself whether the proposal should be regarded as "premature."

45 Mr Pizer submitted that the Portland Properties case can be relevantly distinguished because it involved an application for both development and use permission. I do not accept that this is so. The case was centrally concerned with development questions. Self-evidently development independently of use was inimical to the proposed green wedge. It was "the probable future course of development of the locality" which made confinement of the use to open space appropriate. Such confinement constituted a confinement of development. The principle stated by the Full Court is potentially applicable to both development and use permit applications it turns upon the material inconsistencies of the permit application and the relevant strategic plan.

46 In the present case the Tribunal considered whether "the proposal referred to would probably be brought into force" a matter likewise specifically considered in the Portland Properties case[18].

47 The Tribunal expressly concluded[19] that there is a "reasonable prospect" the planning process currently underway will support the Council's strategic position. This conclusion was directly parallel to that reached by the Tribunal's predecessor at first instance in the Portland Properties case. Accordingly, the ultimate decision in that case should be regarded as direct authority permitting the Tribunal in the present case to reason and conclude as it did.

48 If the Council's structure plan and the planning scheme amendments currently sought to be introduced are assessed against the considerations stated in Lyndale & Black Pty Ltd v MMBW[20] and approved in Whitehorse City Council v Golden Ridge[21], then it was open to the Tribunal to regard the planning proposal as decisive because although the relevant planning scheme amendments were at an "embryonic" stage:

[47]

"In relation to the application under CL24(4) of the Planning Scheme the argument was to the effect that having regard to the provision in CL5A of the Planning Scheme it was a consideration relevant to the grant or refusal of a permit under that sub-clause to exceed the stipulated height that the orderly and proper planning of the area within which the land was situate and the amenity of the neighbourhood would or could be adversely affected by the demolition of an historic building to make way for the projected building of the height sought.

The latter part of this argument meets immediately with difficulty. For the purpose of the grant of the discretion is to control the height of buildings in a particular area. Notwithstanding the general words of clause 5A the responsible authority is not entitled 'to introduce into the considerations affecting the grant of a licence an element foreign to the duties' of the authority in that regard, or to engage 'in a consideration of matters extraneous to the application for a licence', or matter which is 'too remote' therefrom. (Victorian Railways Commissioners v McCartney and Nicholson[23].) 'The discretion must be used and the power exercised bona fide and with the view of achieving ends or objects not outside the purposes for which the discretion or power is conferred.' (Shrimpton v The Commonwealth[24]). The discretion conferred by clause 24(4) is one conferred for the purpose of controlling the height of buildings. In that connection it is proper to have regard to what is prescribed by clause 5A. But to use that discretion for the purpose of endeavouring to ensure the conservation of an historic building and to regulate the orderly and proper planning of the area in which it is situate and the amenity of the neighbourhood, in other respects than with regard to the height of the building, is to endeavour to achieve ends outside the purpose for which the power is conferred and to intrude into the exercise of the discretion matters which are extraneous to it. The responsible authority could not properly refuse the permit under the Planning Scheme on such considerations and could not properly have regard to them in determining whether to grant a permit or not."[25] (References taken to foot.)

At a glance

Court

Decision date

Before

Source

Judgment (51 paragraphs)

Parties

Cases Cited (1)