Applicant v First Respondent

Supreme Court of Victoria|2013-08-26|Before: EMERTON J

PLANNING AND ENVIRONEMENT - Application for Leave to Appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Application for a permit for a child care centre in a Residential 1 Zone - Whether Tribunal decision attended by sufficient doubt to justify grant of leave - Whether grounds relied upon by applicant disclose legal deficiencies in Tribunal's reasons - Consideration of the nature of Tribunal's power under s 84B of the Planning & Environment Act 1987 (Vic) - Whether applicant was denied procedural fairness by the Tribunal - Whether Tribunal manipulated facts to arrive at a predetermined conclusion - Tribunal decision not affected by an error of law - Leave to Appeal refused - Victorian Civil and Administrative Tribunal Act 1998 (Vic) - (Vic) ;

**1 On 31 May 2013, the Victorian Civil and Administrative Tribunal (the 'Tribunal') set aside the decision of the second respondent (the 'Council') to refuse a permit for the development and use of land on the corner of Glen Eira Road and Morrice Street in North Caulfield as a child care centre and directed the Council to issue a permit in accordance with attached conditions.

2 The child care centre in question is a large one, in that it will accommodate up to 120 children with 22 full time and three part time staff at any time. It will be located in a 'Residential 1' zone and, in that zone, within an area designated as a 'Minimal Change Area' (as defined in clause 22.08 of the Glen Eira Planning Scheme).

3 The applicant, Mr Mond, objected to the grant of the permit and was a respondent to the Tribunal proceeding. He now seeks leave to appeal against the Tribunal's decision pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the 'VCAT Act').

4 Mr Mond has put forward a notice of appeal that does not identify the questions of law that he wishes to agitate. However, it raises no less than fourteen proposed grounds of appeal, many of them with what might be described as 'sub-grounds'. Many of the proposed grounds are general in character and do not expressly identify the error said to have been made by the Tribunal.[1] Mr Mond's written submissions, while lengthy, were not tailored to his proposed grounds of appeal and seemed to stray beyond them, although it is difficult to be sure given the general nature of many of the proposed grounds.

5 Having regard to the expansive nature of the material filed by Mr Mond, his application for leave to appeal from the Tribunal's decision was given a special fixture rather than being dealt within the usual way on the regular directions day in the Valuation Compensation and Planning List. Mr Mond was given the best part of a day in which to make his submissions and was asked at the outset to identify his complaints about the processes and reasoning of the Tribunal with specificity. Notwithstanding this request, Mr Mond made submissions of a general nature going in large part to the merits of the Tribunal's decision. It would be fair to say that Mr Mond vehemently disagrees with the Tribunal's decision to grant the permit and that he has deployed something of a scattergun approach to attacking it.

6 As a result, the Court has struggled to identify with precision the questions of law that Mr Mond seeks to agitate on appeal. The process of attempting to reconcile the grounds of appeal with the arguments ventilated in the written and oral submissions has been time-consuming and in some respects futile. I have therefore concluded that the best way in which to approach the application for leave to appeal is to consider the grounds by reference to the categories identified by Mr Mond in his opening statement to the Court.

7 Mr Mond told the Court that he makes three types of complaint in relation to the Tribunal's decision:**

(a) The Tribunal did not carry out the exercise required by s 84B of the Planning & Environment Act 1987 (Vic) (the 'Act') to review the Council's decision;

8 I take this last category to be directed at the Tribunal's construction of the relevant policies in the Glen Eira Planning Scheme, having regard to the need to consider such matters as whether the proposed child care centre would have a 'minimal impact ' on adjoining properties and whether the site conformed with the policy for the preferred location of child care centres.

The nature of the Tribunal's function on review (grounds 11 and 3)

**9 The first of the categories identified by Mr Mond reflects a misunderstanding of the nature of the review carried out by the Tribunal under the Act. Section 84B(1) of the Act provides that the Tribunal, in determining an application for review, must take account of[2] any matter which the person or body in respect of whose decision the application for review is made (here, the Council) properly took into account or was required to take into account in making its decision.

10 The Tribunal does not sit as an appellate tribunal in judgment on the findings and conclusions reached by the original decision-maker. Its function on a review of an administrative decision is not to sit in appeal from the decision, but to re-exercise the function of the original decision maker [3] When exercising its review jurisdiction, the Tribunal reviews decisions on the merits. Its task is to 'stand in the shoes' of the original decision-maker and make the 'correct' or 'preferable' decision having regard to the material before it.[4] The Tribunal's review must take place without any presumption as to the correctness of the decision under review and it must conduct its own independent assessment and determination of the matters necessary to be addressed.[5] While the Tribunal may have to consider the factual findings upon which the decision under review was based in order to decide whether that decision was the correct or preferable one, it must make its own findings of fact and is not bound by the original decision-maker's findings of fact.

11 It is therefore not the case, as Mr Mond contended in his written submissions, that the Tribunal was required to assess the way in which the Council approached the permit application or consider whether the Council actually had regard to the matters it was required to take into account under the Act,[6] including the matters listed in paragraph 56 of Mr Mond's written submission. The Tribunal must decide whether or not a permit should issue and, if so, on what conditions. It makes the decision afresh, having regard to the material before it. Section 84B(1) of the Act, in requiring the Tribunal to take into account[7] the matters properly taken into account or required to be taken into account by the original decision-maker, focuses attention on the matters to be considered by the Tribunal, not on whether they were actually or properly taken into account by the original decision-maker.

12 I see no error in the way in which the Tribunal approached the task of conducting a hearing de novo and considering the permit application on its merits, having regard to the material before it, including the officers' report to the Council.

13 Ground 3 also concerns the nature of the review undertaken by the Tribunal under the Act. Mr Mond alleges that the Tribunal erred in failing to require the first respondent to discharge the burden of proof 'that the application complies with the State Planning Policy framework for non-residential use in a Residential zone 1 area and/or in failing to reject the permit application on the ground that the development was a detriment to amenity'. Mr Mond refers specifically to the first respondent's failure to provide expert evidence of acoustic compliance.

14 Again, this misunderstands the nature of the review carried out by the Tribunal. It is well established that when the Tribunal is exercising its review jurisdiction, it is usually not appropriate to speak in terms of onus of proof.[8] In Transport Accident Commission v Bausch,[9] the Court of Appeal held that, at least in relation to the jurisdiction of the former AAT to review decisions of the Transport Accident Commission, the review was not to be treated as an adversarial proceeding.[10] Section 84B of the Act sets out a number of matters that the Tribunal must take into account, whether or not the parties raise or make submissions about these matters. These include the objectives of planning in Victoria and relevant planning scheme, which in this case included policies for allowing non-residential uses in residential areas and specifically for the location of child care centres in the City of Glen Eira. Pursuant to s 98 of the VCAT Act, the Tribunal was not bound by the rules of evidence or any practices or procedures applicable to courts of record[11] and could inform itself on any matter as it saw fit. It is problematic to speak of the imposition of a burden of proof in this context.

15 In my view, there was no error in the Tribunal not requiring the first respondent to discharge a burden of proof in respect of the matters identified by Mr Mond.**

**16 The Tribunal is bound by the rules of natural justice: s 98(1)(a) of the VCAT Act. Mr Mond alleges breaches of both the hearing rule and the rule against bias.

17 Mr Mond submits that he was denied the opportunity of a full and fair hearing, first because the Tribunal refused his requests for an adjournment, with the result that he did not attend two of the three days of the hearing and, secondly, because when he notified the Tribunal that he would be able to attend the third day of hearing and sought confirmation that he would be allowed to make a submission on that day the Tribunal did not provide confirmation but left him to make an application on the day itself with no guarantee that he would be heard. Mr Mond makes an ancillary complaint that the Tribunal ought to have convened a compulsory conference before fixing a date for hearing in order to ensure that the hearing was fixed on a day or days that were convenient for all of the parties and objectors who wished to be heard.

18 Mr Mond also submits that he was denied procedural fairness because he was refused access to the audio tapes of the hearing.

19 Furthermore, Mr Mond alleges that the Tribunal member was biased in that he was not open to the possibility that the permit might be refused. He says that as a result of the conduct of the Tribunal member, a fair-minded lay observer might apprehend that the Tribunal might not have brought an independent and impartial mind to the question it was required to determine.

20 The background to these allegations is as follows.

21 The first respondent lodged its application for review in the Tribunal on 3 April 2012. However, it was not until 28 November 2012 that the Tribunal sent out a notice advising that the application would be heard on 31 January and 1 February 2013. On 5 December 2012, Mr Mond wrote to the Tribunal requesting an adjournment of the hearing because he and his wife were travelling overseas until 11 January 2013 and he would be unable to prepare for the hearing. He also called for a compulsory conference to determine the questions of fact and law to be decided by the Tribunal.

22 The Tribunal refused Mr Mond's request for an adjournment, stating that the matter had been in the Tribunal's Planning and Environment List since April 2012 and there had been ample opportunity to prepare for the hearing, that Mr Mond would not be overseas on the hearing dates and that the grounds for the adjournment were not sustained. By a further letter dated 13 December 2012, the Tribunal advised Mr Mond that the consent to the adjournment given by two of 29 parties to the proceeding was insufficient to change the original decision to refuse the adjournment.

23 The Tribunal hearing went ahead on 31 January and 1 February 2013. Mr Mond was not present. However, a group of respondent objectors, including Mr Mond, were represented at the hearing by counsel, Mr Paul Chiappi. Mr Chiappi presented written and oral submissions and adduced expert evidence from a town planner and a traffic engineer, each of whom gave oral evidence and adopted written reports.

24 The hearing was not completed on the allocated days and was adjourned to 28 March 2013. Mr Mond wrote to the Tribunal on 8 February 2013 requesting to be given time to 'participate in the hearing and be heard and possibly cross-examine expert witnesses of the Applicant'. He referred to his previous request for an adjournment and explained that he had been unable to attend the hearing on 31 January and 1 February because his father had passed away a few days earlier. On 19 February 2013, the Tribunal informed Mr Mond that whether and to what extent he would be permitted to participate on the third day of the hearing would be a matter for the presiding member upon resumption of the hearing.

25 Mr Mond attended the resumed hearing on 28 March 2013 and was given leave to make an additional submission. I have reviewed the transcript of that day. Mr Mond made a detailed submission and it is apparent that he was given the time that he needed for this purpose.

26 Whether there has been a breach of the requirement to afford Mr Mond procedural fairness will depend on all of the circumstances. Mr Mond was denied the adjournment that he requested because of his plans to travel overseas with his wife prior to the scheduled hearing dates. He states that both the developer and the Council consented to the adjournment and contends that there was therefore no reason to deny his request for an adjournment. However, this ignores other considerations, such as the number of other objectors involved in the proceeding and the imperative for the Tribunal to manage its lists efficiently.

27 Mr Mond was ably represented by counsel at the hearing. He was given an opportunity to be heard in the conventional manner in courts and tribunals, that is, through counsel retained on his behalf. He was subsequently given a further opportunity to make a submission on his own.

28 When pressed about how the events in question prejudiced his right to a fair hearing, Mr Mond said that he was denied an opportunity to cross-examine expert witnesses and to lead expert evidence of his own. He told the Court that he would have adduced expert evidence as to the social and economic impacts of the proposal, particularly regarding the diminution in property values in the vicinity of the proposed child care centre as a result of the grant of the permit.

29 However, in his later submission to the Tribunal [TAB C] Mr Mond raised four specific issues that he said were 'intended to address a gap in submissions presented before this Tribunal'. Mr Mond was given an opportunity to address each of these additional matters on 28 March 2013. As to additional expert evidence, insofar as it would have addressed the effects of the proposal on property values in the neighbourhood, that issue is, as Mr Morris submitted, an issue that is usually approached through the prism of amenity, which was a matter fully canvassed by Mr Chiappi and again by Mr Mond. I note further that Mr Mond's supplementary statement of grounds [TAB C], which he says were not the matters addressed by Mr Chiappi, does not raise the issue of property values, but focuses on the Child Care Centre policy in the Glen Eira Planning Scheme, the certainty that he contends has been given to residents by the designation of the area as a Minimal Change Area and the definition of Glen Eira Road as a main road. As a result, I am not persuaded that Mr Mond was denied the opportunity to present his case to the Tribunal.

30 Furthermore, I see nothing untoward or unfair in the Tribunal's failure to confirm in writing in advance that Mr Mond would be able to make a submission on the third hearing day. The Tribunal was well entitled and probably bound to hear from the other parties before granting Mr Mond the indulgence of making a further submission, as he had already had the opportunity to make submissions, adduce evidence and cross-examine witnesses through his counsel, Mr Chiappi.

31 The fact that the proceeding was not the subject of a compulsory conference did not deny Mr Mond procedural fairness. He was given a proper opportunity to be heard. The proceeding may not have been managed in the manner Mr Mond thought most efficient, but that does not amount to a denial of procedural fairness.

32 In my view, Mr Mond was not denied his right to be heard by the Tribunal. To the contrary, after counsel retained by him had adduced evidence, cross-examined witnesses and made submissions, the Tribunal afforded Mr Mond considerable latitude to further explain why the permit should not issue.

33 Mr Mond alleges that the Tribunal failed to retain a recording of the hearing and submits that this amounted a breach of natural justice. However, it appears that the Tribunal did not fail to retain a recording of the hearing but has decided not to release audio recordings directly to parties.

34 Mr Mond did not explain to the Court how he was prevented from obtaining a fair hearing before the Tribunal by being denied access to the audio recording. His letter to the President of the Tribunal dated 11 April 2013 complaining about his treatment by the Tribunal requests the audio tapes and gives as 'one reason' for the request the Tribunal member's denial that 'a word that appeared in the transcript was not the word that he stated'. The other reasons are not stated. However, it is clear that Mr Mond did not seek recourse to the tapes for the purposes of preparing for the third day of the hearing but rather for the purpose of subsequently analysing what went on at the hearing. Mr Mond's letter to the Tribunal dated 25 February 2013 focuses on access to the transcript for the purpose of his preparation for the third hearing day and makes no reference to the audio tapes. In these circumstances, Mr Mond's right to be heard before the Tribunal could not have been affected by the Tribunal's decision to deny him access to the audio tapes.

35 The Tribunal explained its decision not to release the audio recordings on the basis that the practice had been discontinued because of issues 'from both a technology and a privacy perspective'. Having regard to all of the circumstances, the Tribunal's decision not to release the recording to Mr Mond, does not, in my view, constitute a failure to observe the rules of natural justice in the conduct of the Tribunal hearing.

36 As to the allegation of prejudgment by the Tribunal, Mr Mond points to the following statement made by the Tribunal member on the first day of the hearing:**

Now, this land is in a Residential 1 zone and is adjacent to a road zone category 1 - a fancy name, but anyway, that refers to Glen Eira Road. So it will be necessary to consider the purposes of that zone and other relevant provisions in the planning scheme to make a decision on whether or not this proposal ought to have planning conditions or not.[12]

**37 According to Mr Mond, the Tribunal's reference to planning 'conditions' in that passage shows that it did not give consideration to whether the permit ought to be refused outright.

38 Mr Mond's written submission refers to the Tribunal member having further said that 'not everyone is going to be equally pleased with the result'. This, so Mr Mond contends, constituted 'a clear warning to the objectors that he [the Tribunal member] would be granting a permit under conditions', which was a 'flagrant act of bias conduct'.

39 I disagree that either statement is evidence of bias or could give rise to an apprehension of bias in the fair-minded observer. The Tribunal's statements must be read in context. Immediately after the passage relied on by Mr Mond, the Tribunal framed the question before it as whether or not the proposal was justified. The Tribunal said:**

Now, I think it's important to appreciate that it's not a matter of how many people support or oppose the proposal, but whether the proposal is justified or not justified, whether the refusal is justified or not justified, having regard to the planning merits of the proposal.[13]

**40 In my view, in framing the question in this way, the Tribunal indicated its preparedness to refuse the permit application, having regard to the planning merits of the proposal. Moreover, in observing that not everyone would be equally pleased with the result of the review application, the Tribunal member did no more than state the obvious. The developers sought the grant of a permit; the Council and objectors sought the refusal of the permit. One side was bound not to be pleased with the Tribunal's decision.

41 Most importantly, the Tribunal's reasons for decision make it clear that the Tribunal considered the possibility of refusing the permit. The Tribunal identified the main issue in the case to be whether the site was suitable for the proposed use and stated that its suitability had to be viewed in terms of the actual physical situation, the planning scheme policies and the planning purposes, including those relating to the Residential 1 zone and local planning policies.[14] It went on to consider those matters. In its conclusion, the Tribunal expressed itself to be satisfied, among other things, that the Council's grounds of refusal had not been substantiated and that the additional matters raised by the objectors did not give rise to a situation where, on the merits, the proposal should be rejected.[15] An outright refusal to grant a permit was clearly considered by the Tribunal.

42 The Tribunal's reference to 'conditions' in the passage of transcript highlighted by Mr Mond is an error. I do not know whether it involves an error in the transcription of what was said or whether it was a misstatement by the Tribunal member. However, having regard to the manner in which the Tribunal identified the issues and approached the question before it, I do not consider that a fair minded lay observer might apprehend that the Tribunal might already have decided to grant the permit and that the only outstanding issue was what conditions should be imposed.

43 Paragraphs 74 and 75 of the written submission raise a plethora of other matters said to be evidence of bias or apprehended bias, which are too numerous to list. Many of them concern or arise from the decision made by the Tribunal to grant the permit. The Tribunal is said to have given rise to a perception of bias because it did not accept some of Mr Mond's submissions or did not give them the attention that Mr Mond felt that they deserved. In my view, this is insufficient to make out bias or apprehended bias.

44 Mr Mond has taken particular offence at the Tribunal's comment in paragraph 126 of its reasons that he was a 'layman' who purported to raise questions of law that were in truth questions of fact. I have carefully considered paragraph 126 of the Tribunal's reasons. It seems to me that the Tribunal was endeavouring to explain that some of the matters that Mr Mond put forward as hard and fast rules or 'laws' were policies that operated as guidelines rather than as prohibitions or mandatory requirements. So much is unexceptionable. In my view, the reference to Mr Mond being a layman was not pejorative and the Tribunal was not 'dismissive' of him. The statements in paragraph 126 of the Tribunal's reasons are innocuous and could not give rise to an apprehension by a fair-minded lay observer that the Tribunal might not have brought an independent and impartial mind to the question that it was required to determine.**

Construction of Planning Scheme provisions (grounds 2, 4, 6, 7, 8, 10 and 14 )

**45 A number of proposed grounds are based on the contention that the Tribunal misconstrued and/or misapplied the Glen Eira Planning Scheme, in particular, clause 32.01, which provides for the Residential 1 zone, and clause 22.11, which is the Child Care Centres policy in the local planning provisions.

46 Mr Mond submits that the Tribunal misconstrued clauses 32.01 and 22.11 so as to undermine the protection of residential character that designation of an area as a Minimal Change Area is supposed to ensure. He submits specifically that the Tribunal erred in the manner in which it interpreted the words 'minimal impact' in the objectives of the Child Care Centres policy in clause 22.11-1 of the planning scheme.[16]

47 The Tribunal approached the question of the suitability of the proposed location, as it said, 'in terms of the actual physical situation, in terms of the planning scheme policies, and in terms of planning purposes including those relating to the Residential 1 Zone and those relating to local planning policies'.[17] Having observed that a child care centre requires a permit under clause 32.01-1, the Tribunal referred to the purposes of the Residential 1 zone, which includes allowing educational, recreational, religious, community and a limited range of other non-residential uses in appropriate locations to serve local community needs.

48 From this, the Tribunal extracted what it described as 'the principle of the accommodation of non-residential uses within a Residential 1 Zone provided that they meet local community needs.' According to the Tribunal, churches, schools, local convenience shops, medical centres and child care centres fall within this concept. [18] The Tribunal therefore concluded that it was appropriate to locate child care centres in Residential 1 zones.[19]

49 The Tribunal recognised, however, that it was necessary to ensure that non-residential uses were integrated into residential areas with a minimum impact or loss of residential amenity. [20] While the Non-residential Uses in Residential Zones policy did not apply to child care centres, there was a specific Child Care Centres policy in clause 22.11 of the Planning Scheme dealing, among other things, with the integration of child care centres in residential areas. The bulk of the Tribunal's reasons therefore addressed the question of whether the proposed child care centre satisfied the Child Care Centres policy in clause 22.11.

50 Before going to Mr Mond's grounds arising from the Tribunal's application of the Child Care Centres policy, it is convenient to set out some of its terms.

51 The Child Care Centres policy is expressed to provide guidance on the preferred location and design of child care centres within the municipality. It records that the Municipal Strategic Statement recognises that the development and expansion of non-residential uses such as child care centres in residential areas is an issue that warrants further recognition and policy direction. It states that, where possible, child care facilities should be integrated into residential areas with minimum impact or loss of residential amenity and that they should aim to protect the surrounding neighbourhood character of an area.

52 The objectives of the Child Care Centres policy are expressed in clause 22.11-1 as follows:

• To encourage child care centres to locate in strategic locations that have good access to public transport, commercial, community, educational and recreational facilities.

• To ensure child care centres have minimal impact on adjoining properties.

• To encourage the design, location and form of child care centres which are compatible with the surrounding built form environment.

• To ensure adequate provision for on-site car parking and drop-off areas.

• To ensure that traffic generated by the use is appropriate to the street and locality.

• To minimise the impacts of noise, overlooking, overshadowing, car parking and traffic on the surrounding neighbourhood.

• To maintain the garden character of the neighbourhood.

53 Clause 22.11-2 then sets out a range of policies to meet those objectives. The policies in question deal, inter alia, with the preferred location of child care centres, traffic and car parking, siting and built form, general amenity, and landscaping.

54 Relevantly, the policy in respect of the preferred location of child care centres provides as follows:

• Encourage the location of child care centres in Housing Diversity Areas (as defined in clause 22.07 of the Planning Scheme) and/or on main and secondary roads and preferably on corner sites.

• Encourage the location of child care centres near schools and pre-schools in Housing Diversity Areas and along main and secondary roads.

• Discourage the location of child care centres on local streets within Minimal Change Areas (as defined in clause 22.08 of the Planning Scheme).

55 Mr Mond contends that when the Tribunal considered the objective of ensuring that child care centres have 'minimal impact' on adjoining properties, it misinterpreted the word 'minimal' and effectively re-drafted the objective so as to facilitate the grant of the permit.

56 In considering the objective of ensuring that child care centres have 'minimal impact' on adjoining properties, the Tribunal referred to dictionary definitions of 'minimum' and 'minimal', which included 'the least quality or a jot of anything', 'something very small or insignificant', 'smallest; very small', 'pertaining to or being a minimum', 'least possible' and 'smallest; very small, least'. The Tribunal observed that while the word 'minimal' was sometimes taken to mean trifling or insignificant, it had to be understood in the context in which it was used. According to the Tribunal, if the word 'minimal' were to be taken to mean trifling or insignificant, there might be no locations where the impact was so tiny. As a result, the Tribunal said:**

To interpret minimal in this context as meaning trifling, insignificant or a mere jot would be to render the policy impractical. I think it here must mean minor and so as not to have any unreasonable adverse impact on adjoining properties. My assessment is that this proposal meets that objective.[21]

**57 There was some debate before the Tribunal and before the Court about whether the Tribunal's conclusion as to the meaning of 'minimal' was a question of fact or a question of law. I am prepared to accept for the sake of argument that the proper construction of the Child Care Centres policy is a question of law and that, whether the Tribunal misinterpreted the word 'minimal' in the context in which it appears, can be characterised as a legal question.

58 However, I consider that the Tribunal was correct to say that the word 'minimal' must be understood in the context in which it appears, which is in an objective of a policy concerning the location of a non-residential development, namely a child care centre, in areas that may include residential areas.

59 The Child Care Centres policy contemplates that child care centres will be located in residential areas adjoining residential properties in appropriate cases. It contains a range of policies aimed at ensuring that child care centres are suitably located and that potentially problematic issues such as car parking, traffic and noise are controlled so as to secure the objectives of the policy, including ensuring that child care centres have a 'minimal impact' on adjoining properties. The objective of ensuring that child care centres have minimal impact on adjoining properties is to be given effect by the policies that follow, which, as will be seen, contemplate that child care centres may be located on sites such as the one in question.

60 This is not to say that conformity with policies directed to protecting residential amenity will always be sufficient to ensure that the 'minimal impact' objective can be satisfied. However, the Child Care Centres policy evinces an intention that the impact on residential amenity be managed, where possible, by the application of policies concerning such matters as traffic and car parking, siting and built form, landscaping and control of hours of operation. In my view, therefore, the Child Care Centres policy contemplates that there may be a discernable impact on adjoining properties, consistently with the objective that impacts be 'minimal'.

61 Having regard to this context, I am not persuaded that the Tribunal erred in declining to adopt the dictionary definition of 'minimal' as meaning trifling, insignificant or a mere jot. It was necessary to consider what would constitute a 'minimal impact' in the context of the Child Care Centres policy and the Glen Eira planning scheme as a whole. In my view, read in context, the word 'minimal' is a relative term that means something like 'the least possible', having regard to what is generating the impact and what is impacted. The objective of ensuring that a child care centre will have a 'minimal impact' on adjoining properties cannot be based on the impact being imperceptible or almost imperceptible, given that child care centres are places that attract quite large numbers of people and are apt to generate both noise and traffic movements.

62 The Tribunal's construction of the 'minimal impact' objective and the meaning attributed to the word 'minimal' as 'minor and not so as to have any unreasonable adverse impact on adjoining properties' is consistent with the Child Care Centres policy as a whole. The Tribunal was not bound to accept a dictionary definition of 'minimal', let alone any particular dictionary definition. It was not the case, as Mr Mond appeared to contend, that the Tribunal 'changed' the meaning of the word so as to define the word as something that it was clearly not, such as defining a mouse as an elephant. Nor was it the case, as Mr Mond did contend, that the context in which the meaning of the word 'minimal' was to be determined was simply the physical reality of a '120 place 27 space underground car park CCC in a minimal change area and local street location'. The relevant context is the Child Care Centres policy and the Glen Eira Planning Scheme. The Child Care Centres policy, properly construed, must be taken into account when considering the reality that Mr Mond describes. However, that reality does not determine the meaning of the objective, which is of a broad character and is intended to be applicable in a variety of circumstances and to a variety of 'realities'.

63 Mr Mond also contended that the Tribunal failed to conduct the review on the basis that minimal change and amenity is to be assessed under two specific limbs. In argument, Mr Mond conceded that these two limbs were formulated by him. It is not an error of law to fail to consider minimal change and amenity on the basis contended for by Mr Mond. This ground (ground 10) is without merit.

64 Mr Mond further submits that the Tribunal erred in finding that the proposal was a 'community development', rather than a business enterprise. The Tribunal did not find that the proposal was a community development. However, it referred to one of the purposes of the Residential 1 zone as recognising the principle of the accommodation of non-residential uses within such a zone 'provided that they meet local community needs'. By inference, it might be said that the Tribunal found that the proposed child care centre met local community needs. This is not the finding alleged by Mr Mond. However, even if it were, it would be a finding of fact and would not amount to an error of law.

65 Mr Mond castigated the Tribunal generally for failing to find that areas other than Minimal Change Areas, such as Priority Development or Housing Diversity Areas, would be more appropriate locations for a large child care centre such as the proposal.

66 It may well be that a child care centre of the size in question would be more suitably located in a Priority Development or Housing Diversity Area. However, the Tribunal was concerned with the proposal before it, not a proposal in another location. It had to decide whether the proposal before it would produce an acceptable outcome. The Tribunal paid careful attention to the policy in the Child Care Centres policy concerning the preferred location of child care centres (clause 22.11-2). This policy discourages the location of child care centres on local streets within Minimal Change Areas. It also encourages the location of child care centres in Housing Diversity Areas and/or on main and secondary roads, and preferably on corner sites. The Tribunal recognised that the preference in the policy for child care centres to be located in Housing Diversity Areas was not met. However, it held that 'other equal preferences' were expressed in the policy and that a site not in a Housing Diversity Area could still be a preferred location if it was on a main or secondary road. Glen Eira Road was a main road and, as a result, that preference was satisfied by the proposal. I see no error in this reasoning.

67 In my view, the Tribunal was also correct to reject the submission that for locations outside Housing Diversity Areas, there must be frontages on two roads, each of which must be either a main or a secondary road. There is no such requirement in the policy concerning the preferred location of child care centres (clause 22.11-2).

68 The Tribunal went on to consider the policy to discourage the location of child care centres on local streets within Minimal Change Areas and concluded that, reading the policies as a whole, this meant that child care centres were discouraged mid block in Minimal Change Areas, or on corners in such areas between local streets. The Tribunal held that it did not cancel the preference already given to locations in Minimal Change Areas on main or secondary roads, especially on corner sites involving main or secondary roads.

69 Again, I am not satisfied that the Tribunal erred in construing this policy.

70 Furthermore, the Tribunal was correct to observe that the words 'encourage' and 'preferred' in the Child Care Centres policy guide, rather than dictate.[22] The Tribunal is not bound to refuse a permit for a child care centre that is not in an area that is encouraged or preferred, just as it is not bound to grant a permit if the proposed child care centre is in such an area. It is a question of identifying and weighing the competing policies in the Planning Scheme to determine whether the proposal produces an acceptable outcome. In this case, that process involved the Tribunal considering whether the site was a suitable for the proposed use and development having regard to the relevant planning policies. The question for the Tribunal was not whether there might be more suitable sites, but whether the proposal should be permitted on the site in question, having regard to the matters in s 84B of the Planning & Environment Act and any other relevant considerations. The Tribunal was taken to the matters that the parties and objectors considered to be relevant to the Tribunal's assessment, it evaluated the proposal against the relevant policies and concluded that the site could accommodate the proposal.

71 In reaching this conclusion, the Tribunal carried out the evaluative task vested in it by the Planning & Environment Act. It is not for the Court, in an appeal under s 148 of the VCAT Act, to set the decision aside unless the Tribunal has made an error of law. While an error of law may arise upon a misconstruction of the statute or the relevant planning provisions, or by reason of a failure to take into account a relevant consideration or because the Tribunal has taken account of an irrelevant matter,[23] the Court will not otherwise interfere in the exercise of the planning discretion by the Tribunal.

72 I am not persuaded that the Tribunal's construction and application of the Child Care Centres policy and cl 32.01 of the Glen Eira Planning Scheme involved an error or errors of law. I have concluded that Grounds 2, 4, 6, 7, 8, 10 and 14 have poor prospects of success.[24]**

Failure to take into account relevant considerations (grounds 13 and 9)

**73 Mr Mond submitted - in a rather fragmented manner - that a number of matters required to be taken into account by the Tribunal were not. These included amenity, net community benefit and social and economic impacts.

74 I reject the submission that the Tribunal failed to consider amenity. It did so by considering the purposes of the Residential 1 zone and by carefully analysing the objectives and policies of the Child Care Centres policy.

75 Furthermore, consideration of net community benefit was implicit in the Tribunal's analysis of the planning policies and the competing submissions made by the parties. Thus, the purpose of including in a residential zone non-residential uses that meet local community needs and the recognition in the Municipal Strategic Statement that such facilities 'quite clearly' have a place within residential areas was weighed against the matters said by the Council and the objectors to militate against the siting of a large child care centre in the location in question.

76 Mr Mond referred to impact of the proposal on property values in the neighbourhood. He submitted that this was an 'economic impact' for the purposes of s 60(1A)(a) of the Planning & Environment Act and was therefore a relevant consideration that the Tribunal failed to take into account.

77 The first thing to be said about this submission is that no party led any such evidence.[25] The Tribunal did not have the benefit of expert evidence on the effect of the proposal on residential property values in the neighbourhood. Of course, Mr Mond says that, had he been given an opportunity to properly present his case, he would have led such evidence. I have already dealt with Mr Mond's argument that he was denied procedural fairness. Mr Chiappi could have led such evidence, but apparently chose not to. It was also open to Mr Mond, on the third day of hearing, to adduce such evidence. He chose not to, he says, because he had not been assured that he would be given an opportunity to speak. That was his decision.

78 In any event, I query the relevance of such evidence. As Senior Counsel for the respondent submitted, the effect of a development on individual property values is not usually considered directly but, rather, indirectly through consideration of impacts on amenity. Although there will be circumstances in which the Tribunal must consider significant social and economic impacts under s 60(1A)(a) of the Planning & Environment Act, most usually these will be impacts felt by the community as a whole rather than individually.

79 It is unnecessary on an application for leave to appeal to consider this question fully. The Court did not have the advantage of developed submissions on this point and it was, in any event, hypothetical, given the absence of admissible evidence of economic impacts before the Tribunal.

80 By Ground 9, Mr Mond alleges that the Tribunal erred, among other reasons, in dismissing or ignoring the expert opinion of Planning Panels Victoria and the Municipal Association of Victoria, along with the strategic objective of delivering greater certainty to developers and the general public. It is not clear which particular views or opinions Mr Mond is referring to, but, in any event, those opinions or views are not matters that the Tribunal was bound to take into account, and its failure to do so does not constitute an error of law.

81 I have concluded that Grounds 9 and 13 have poor prospects of success.**

**82 By Ground 12, Mr Mond contends that the Tribunal erred in failing to exercise its power to overrule VicRoads for the location of the entrance of the underground car-park from Glen Eira Road or by failing to deny the application on the basis that the car-park entrance could not emanate from Glen Eira Road, and by misinterpreting the Preferred Location policy under 22.02-3 of the Planning Scheme.

83 Mr Mond could not point to any power in the Tribunal to overrule VicRoads in relation to a power that was presumably exercised by VicRoads under the Road Management Act. Furthermore, the Preferred Location policy in clause 22.02-3 forms part of the Non Residential Uses in Residential Zones policy which is expressed not to apply to child care centres. In any event, Mr Mond has not specified how he says the Tribunal misinterpreted the Preferred Location policy. In my view, Ground 12 has very poor prospects of success.**

**84 The criteria for the grant of leave to appeal are set out in Department of Premier and Cabinet v Hulls.[26] Relevantly, the applicant must identify a question of law arising out of the Tribunal's decision, but need not establish that the Tribunal erred. Rather, the applicant must establish that the Tribunal's decision is attended by sufficient doubt to justify the grant of leave. The public or general importance of a question may also be a relevant consideration. However, whether leave should be granted must always depend on the justice of the particular case.

85 In this case, leave should be refused. The proposed notice of appeal is defective in many respects, including because it fails to set out the questions of law as required by Rule 4.11 of Chapter 2 of the Supreme Court (General Civil Procedure) Rules 2005. More importantly, however, it is very difficult to distil from the notice precisely what are the complaints made by Mr Mond, let alone what the question or questions of law might be. The notice of appeal could not go forward in its current form.

86 Mr Mond was given ample opportunity to explain to the Court how, specifically, he contends the Tribunal has erred. He was repeatedly invited to refer to the Tribunal's reasons for decision for this purpose. While that exercise resulted in some elucidation, the precise basis for many of the grounds remains obscure.

87 Based on the grounds put forward by Mr Mond as I understand them, and having had the benefit of lengthy oral submissions, I have formed the view that there is no real or significant argument to be made that the Tribunal made an error of law. The Tribunal's decision is not, in my view, attended by sufficient doubt to justify the grant of leave.

[1] The first respondent correctly described the gravamen of a number of grounds as being 'difficult to discern' and other grounds as comprising 'general, sweeping allegations of a rolled up character'.

[3] Victorian Workcover Authority v AB Oxford Cold Storage Co Pty Ltd (Unreported, Victorian Court of Appeal, Nettle and Ashley JJA, 1 September 2006).

[4] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419.

[5] Thirteenth Beach Coast Watch Inc v The Environment Protection Authority (2009) 29 VR 1, 16.

[6] David Mond, 'Written Submissions by Plaintiff', Submission in Mond v Perkins Architects Pty Ltd & Anor, S CI 2013 3331, 29 July 2013, [45].

[8] See Jason Pizer, Pizer's Annotated VCAT Act (JNL Nominees Pty Ltd, 4th Edition, 2012) 439, [VCAT.98.240] and the authorities referred to therein.

[11] Except to the extent that it adopts those rules, practices or procedure.

[12] Transcript of Proceedings, Perkins Architects Pty Ltd v Glen Eira CC (P1019/2012, Senior Member Byard, 31 January 2013, 1 February 2013 and 28 March 2013), 7 ('Transcript').

[14] Perkins Architects v Melbourne CC [2013] VCAT 210, [26], [30] ('Reasons').

[16] A ground relating to whether Glen Eira Road was a 'main road' for the purposes of clause 22.11-2 of the Child Care Centres policy was abandoned, as Mr Mond conceded that Glen Eira Road was a main road in the Glen Eira Planning Scheme.

[20] By reference to the Municipal Strategic Statement (cl 21 of the Glen Eira Planning Scheme) and the statement in the 'overview' that medical centres, churches, child care and kindergartens 'quite clearly' have a place within residential areas, but that badly sited or controlled non-residential uses could progressively erode Glen Eira's residential nature.

[23] Or where the Tribunal makes a decision that no reasonable decision-maker could have made.

[24] I note that Ground 5 was abandoned by Mr Mond.

[25] Mr Mond produced a letter from a local real estate agent which did not constitute expert evidence.

Civil and Administrative Tribunal Act 1998

Environment Act 1987

Court (General Civil Procedure) Rules 2005

At a glance

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Judgment (123 paragraphs)

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Legislation Cited (3)

Cases Cited (2)