Appellant v Respondents

Appellant v Respondents - [2005] VSC 434 - VSC 2005 case summary — Zoe

[41]

33 The scheme of s.68 of the Act is that a development permit will expire if the development is not commenced within a certain time or completed by a certain time. The section does not provide that the permit expires upon completion of the development. The scheme of the Act does not preclude the possibility that a development may be subject to continuing conditions.

34 The plain meaning of Condition 1 is that it is intended to operate prospectively and that it imposes an ongoing limitation upon the alteration or modification of the layout of the site and the size of the proposed buildings and works. In this regard it is directly comparable to Condition 5 which required the external materials and appearance of the building to be maintained.[6] Permit conditions are intended to be read sensibly and in a non-technical manner.[7] There is nothing in the language of Condition 1 to suggest that it was not intended to have an ongoing effect.

35 Conditions in the form of Condition 1 have been understood to have a continuing operation for many years. In City of Brighton v Eura Nominees Pty Ltd[8] Gobbo J addressed the effect of a condition in the form in question which relevantly required the maintenance of the size of buildings and works and the layout of a site in circumstances where use of part of the site for the purpose of car parking changed.[9] It is apparent that his Honour considered the questions before him on the necessary assumption that the condition continued to have effect after a development was completed. Further, it is apparent that the legislative regime affecting the operation of such conditions has been specifically considered and addressed by s.149 of the Planning and Environment Act 1987 since the decision in Eura Nominees. At that time as his Honour observed there was no right of appeal in the event of refusal of secondary consent by a responsible authority. The legislature has since addressed this problem and the legislative review of the adequacy of the relevant controls has not resulted in a stipulation that conditions of the type in issue have no effect upon the completion of the development to which they relate.

36 If Condition 1 were spent upon the completion of the development the physical context in which the building and works were permitted could be radically altered immediately after they were completed. It would be possible as of right to cut away the lower portion of the site so as to make the permitted buildings more visually prominent or to erect additional buildings below six metres in height which materially affected the perceived bulk of the permitted development by emphasising the bulk of the built form culminating in a protrusion above 6 metres. The Tribunal adverted to these considerations in the following passage:

[72]

The submission that Condition 2 is beyond power because it regulates the land as a whole

67 The appellant submitted to the Tribunal that Condition 2 was "ultra vires or beyond power as it attempts to regulate the whole of the use of the land not just as specified in Schedule 1 of Clause 43.02." In submission to this Court it was put that the subject matter of the relevant power was to control the height of buildings over six metres only.

68 For the reasons I have stated it was open to the responsible authority to impose incidental controls upon the site context of the permitted development by way of condition upon that development if it was satisfied in the circumstances of the case that it was reasonable to do so for the purposes of implementing the relevant planning policy. The Tribunal concluded as a fact that the condition implemented such policy and related to the development. It has not been demonstrated that it was not open to the Tribunal to so conclude as a matter of fact.

The submission that major works are not constrained by Condition 2

69 The appellant further submitted that if new works are proposed which could not form the subject of secondary consent pursuant to Condition 2, then such works likewise are not restricted by the condition. It was submitted such works are independently regulated by the planning scheme and new buildings and works less than six metres in height are as of right.

70 In my view there is no logical reason for limiting the primary restriction contained in Condition 2 by reference to the ambit of the facilitative proviso. To the contrary, if works are so major that they exceed what might be permitted by way of secondary consent, such works will alter the context of the permitted buildings and works by so much the more and thereby defeat the purpose of the condition.

Unreasonableness

71 It was also contended that Condition 2 could not reasonably have been imposed by the responsible authority.

72 As I have indicated on its face Condition 2 is both directed to matters within the scope of the relevant planning policy and directly related to the context and net effect of the permitted development.

73 Further the Tribunal held as a matter of fact that Condition 2 related "to both the permission and the planning policy which requires the permission to be obtained".

74 The contrary does not appear to have been argued before the Tribunal[33] and no basis has been established for rejecting the Tribunal's conclusions.

75 Both before the Tribunal and in this Court counsel for the appellant placed considerable reliance upon authority governing the validity of subordinate legislation. In my view such authority cannot be substituted for the authority of the High Court which bears directly on the question of the appropriate test of validity of planning permit conditions.

76 Nevertheless, I accept that the question of whether a permit condition is "reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised as ascertained from a consideration of the scheme and the Act under which it is made", may be regarded as involving an inquiry similar to that required in testing the validity of a regulation at least insofar as the test of reasonableness necessarily embraces considerations of proportionality. In South Australia v Tanner[34] Wilson, Dawson, Toohey and Gaudron JJ said:

[79]

[1] In City of Brighton v Eura Nominees Pty Ltd (1983) 56 LGRA 263 Gobbo J referred to a condition in like terms as being a common condition.

[2] As the Tribunal observed in the present case with respect to a contention not pursued before this Court that the condition should be read as applicable only to amendments to the endorsed plans. "Had that been the meaning of the condition it would have been easy enough for whoever drafted it to direct the restriction to amendments to endorsed plans, however, the condition directs itself to 'the layout of the site and the size of the proposed buildings' as depicted on the endorsed plans." Benedetti v Moonee Valley City Council [2005] VCAT 2227 (2 August 2005) at [23]

[3] (2004) 19 VPR 96

[4] Above at 107 [49]

[5] The appellant's case before me was ultimately argued on a different basis. It was submitted that "except for minor ongoing operational requirements a development permit is 'spent' on completion of the development."

[6] Condition 5 provides: "The materials, colours, decoration and/or finishes to be applied to the exterior of the buildings or works as described on the drawings or schedules endorsed to accompany this permit shall not be altered without the consent of the responsible authority."

[7] Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works [1972] VicRp 93; [1972] VR 781 at 796-797 per Pape J.

[8] Above

[9] Gobbo J stated: "In my view condition 1, which is apparently a common condition in permits, did not effectively embrace every detail noted on the endorsed plan. It was confined to precluding alteration, without consent, of the size of the buildings and works. A notation as to use for parking was not, in my opinion, one relating to buildings and works in the present situation. As to modifications in layout, I am not satisfied that in the present case of an earlier use notation, there is a change in layout where that area has a notation as to works in the latest permit that does not repeat the earlier notation. No doubt there may be some situations where the description of car parking areas in a plan may represent the layout of a site. It will be a question of construction in every case. I am not prepared to find that the permit was in conflict with the 1969 permit." Above at 272-3

[10] Above at [29]. The reference to Cope's case is a reference to the decision of the Tribunal in Cope v Hobsons Bay City Council (2004) 19 VPR 96.

[11] Gobbo J regarded the practical consequences of competing constructions as a significant matter in Eura Nominees: "The alternative view would mean that there could never be any alterations that had the effect of departing from the layout of a previous permit. This would mean on one view that the land would be locked into its development forever. This is an absurd result and one which detracts considerably from the argument of the Council." Above at 272

[12] Above at [24]

[13] Cf Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at 1608 [51]

[14] Planning and Environment Act s.70

[15] Sale of Land Act 1962 s.32(2)(ca)

[16] see eg. Planning and Environment Act 1987 s. 125

[17] Above at 271-2

[18] Ground 5 of the Notice of Appeal is: "The decision of the Tribunal should be set aside as the Tribunal determined that Condition 2 was valid as it related to a planning matter or policy in the permission granted in Permit No. ES7339 issued 10 November 1994 where Condition 2 could not relate to a planning matter or policy as it wholly prohibited (subject to conditional permission) the development of the land."

[19] [1970] HCA 42; (1970) 123 CLR 490

[20] Above at 499-500

[21] [1998] HCA 59; (1998) 195 CLR 566 at 577 [15]

[22] [1975] VicRp 15; [1975] VR 156 at 162

[23] [1992] VicRp 69; (1992) 2 VR 372 at 376

[24] [2004] HCA 63; (2004) 137 LGERA 232 per McHugh J at [56], per Gummow and Hayne JJ at [93]

[25] Cf Temwood above per Gummow and Hayne JJ at [112]

[26] Above at [29]

[27] In 271 William Street (above) Harris J described the test applied by him as "somewhat different and perhaps wider than" this test. Whether the two tests would generally yield a different result in practice is however to be doubted as Ashley J observed in Crichton (above) at 376.

[28] Above at [72]. Cf Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142

[29] Ground 4 of the Notice of Appeal is: "The decision of the Tribunal should be set aside as the Tribunal determined that Condition 2 was valid where it wholly prohibited any use or development under the scheme (subject to conditional permission) contrary to the development of the land otherwise available as of right under the scheme."

[30] Above at [27]-[28]

[31] [1962] HCA 36; (1962) 107 CLR 142

[32] Above at 154

[33] Save on the basis that condition 2 imposed an unauthorised constraint on the exercise of a right.

[34] [1989] HCA 3; (1989) 166 CLR 161

[35] [1983] HCA 21; (1983) 158 CLR 1 at 260

[36] [1933] HCA 56; (1933) 49 CLR 142 at 156

[37] Above at 165

[38] [1993] FCA 366; (1993) 43 FCR 565

[39] (1988) 164 CLR 350

[40] [1933] HCA 56; (1933) 49 CLR 142

[41] [1992] FCA 566; (1992) 37 FCR 298 at 309-311, 327-329

[42] [1993] FCA 45; (1993) 40 FCR 381 at 383-384, per Lockhart J

[43] [1957] HCA 4; (1957) 96 CLR 245 at 250

[44] Above at 577-8

At a glance

Court

Decision date

Before

Source

Judgment (79 paragraphs)

Parties

Cases Cited (11)