Applicant v First Respondent Second Respondent

2 The applicant owns or leases an apartment on level three of Alto Villas ('Alto 302'), which is located on Abominable Way, above and overlooking the development site. The applicant complains that the proposed development will block the views from Alto 302 to the north and that it does not achieve a reasonable sharing of views. The applicant's complaint is, in substance, that the proposed development is too high and should be lowered by approximately one metre in order to achieve a reasonable sharing of views to the north.

3 The subject land is affected by a design and development overlay. Clause 43.02-2 of the Alpine Resorts Planning Scheme provides that a permit is required to construct a building or to construct or carry out works in the area covered by the overlay and that buildings and works must be carried out in accordance with any requirements in a schedule to the overlay. However, cl 43.02-2 also provides that a permit may be granted to construct a building not in accordance with a requirement in a schedule of the overlay, unless the schedule 'specifies otherwise'.

4 Schedule 1 to the overlay applies to the Mount Buller Alpine Resort Village where the subject land is located. Clause 2.1 sets out the building and design requirements which the development of land 'should' meet. The relevant height requirement in DDO1-A2 provides:

The maximum height of any part of a building is four storeys or 15 metres above natural ground level, whichever is the lesser height. A permit may be granted to increase the height of any roof structure or chimney by 1.5 metres provided no more than 20% of the roof area exceeds 15 metres in height.

5 The subject land was the subject of a different permit application in 2007 that resulted in the Victorian Civil and Administrative Appeals Tribunal requiring the overall height of the proposed building to be reduced by one metre ('Zacamoco decision'[1]). A permit was granted on that basis, but the permit expired before construction commenced. The Zacamoco development did not proceed.

6 In 2015, the first respondent applied to the second respondent, the Minister for Planning, for a permit to develop the subject land as described above. The Minister decided to grant a permit subject to conditions. The applicant, Domdada Pty Ltd and Alto Villas Pty Ltd applied to the Tribunal seeking review of the Minister's decision.

7 The first respondent filed amended plans before the Tribunal hearing ('Application Plans'). The Application Plans were for a building of more than four storeys. Nonetheless, the Tribunal decided that a permit should issue subject to a number of conditions, including a condition that the roof form of the upper level 'chalets' be stepped in order to achieve a reasonable sharing of views ('Condition 1(a)'). The maximum ridge height allowed by Condition 1(a) is 1610.87 AHD, which is on the southern side of the proposed development, being the side closest to Abominable Way and Alto 302.

8 The applicant now seeks leave to appeal from the decision of the Tribunal and, if leave is granted, for the appeal to be heard and allowed.

9 The applicant has raised three grounds of appeal:

(1) The Tribunal, having found that a modification was required to the roof form of the proposed building in order to achieve an acceptable balance and a reasonable sharing of views, imposed a condition to give effect to this finding that was ineffectual and lacked an evident and intelligible justification, in that the condition will not result in any improvement in the view from Alto 302 compared with the position in the Application Plans.

(2) The Tribunal misconstrued the maximum height requirement in DDO1 by determining that it could grant a planning permit authorising the construction of a building that was higher than four storeys.

(3) The Tribunal, having found that weight should be given to the Zacamoco decision in the exercise of its discretion, erred in law in determining that the effect of the Zacamoco decision was to permit a building of up to a height of 1610.87 AHD to be constructed.

10 The principles to be applied in considering an application for leave to appeal against the decision of the Tribunal were established in Secretary to the Department of Premier and Cabinet v Hulls.[2] They were succinctly expressed as follows by Garde J in Zumpano v Banyule City Council:[3]

The pivotal requirement is that an Applicant must identify a question of law for which there is a real or significant argument to be put that error exists. The Court will also have regard to the justice of the particular case, and whether the applicant has identified a question of law that is of general or public importance. The Applicant must show that there is sufficient doubt attendant the question of law to justify the grant of leave.

11 The first respondent submits that leave to appeal should not be granted because there is no matter of general or public importance in any of grounds 1, 2 or 3 and, if leave to appeal was not granted in respect of any of those grounds, there would be no serious injustice to the applicant. The absence of substantial injustice should be determinative, as there is no exceptional question of law to be determined.

12 This submission is based, in part, on a change of circumstances since the Tribunal's decision.

13 On 31 January 2017, the first respondent submitted amended plans to the Minister for endorsement ('2017 Amended Plans'). The 2017 Amended Plans, so the first respondent contends, comply with the technical requirements of the Tribunal's orders and also comply with the height control specified in DDO1-A2.[4]

14 The first respondent relies on two matters to assert that there is no substantial injustice to the applicant if the Tribunal's decision stands:

(a) As a result of the 2017 Amended Plans, there is no further issue about compliance with DDO1-A2, as the proposed development clearly falls within the permissible height restrictions; and

(b) Condition 1(a) increases the amenity of Alto 302 by creating larger viewing windows compared with those in the Application Plans.

15 In my view, the application for leave to appeal cannot be so readily dismissed.

16 First, it is hotly disputed that Condition 1(a) does, in fact, lessen the amenity impost on Alto 302. The applicant contends that Condition 1(a), by replacing a sloping roof with a stepped roof, does not improve the views but makes them worse.

17 Secondly, even if the 2017 Amended Plans show compliance with the height restriction in DDO1-A2, the Application Plans did not. The Tribunal made its decision on the basis that the proposed development did not comply with the height restriction and it devised a condition to ameliorate the effect of the height of the development on the views from Alto 302. Had the Tribunal made its decision on the basis that the height restriction was mandatory, it would have required different modifications to the Application Plans.

18 The applicant submits that the most obvious modification would have been a lowering of the overall height of the proposed building, as was required in the Zacamoco decision.

19 The possibility that the Tribunal would have decided the application for review differently had it recognised a mandatory height restriction cannot be discounted. I am therefore not persuaded that leave to appeal should be refused because there can be no substantial injustice in leaving the Tribunal's decision intact, even if it contains error.

20 It remains, then, to consider the proposed grounds of appeal to determine whether the Tribunal's decision is attended by sufficient doubt to justify the grant of leave.

21 The applicant submits that the Tribunal's decision to direct the Minister to issue a permit with Condition 1(a) lacked an evident and intelligible justification having regard to the reasons of the Tribunal, and therefore constituted an error of law.

22 According to the applicant, the Tribunal's reasons show that it sought to impose a permit condition to reduce to an acceptable level the amenity impost on Alto 302 caused by the interference with its views. Instead, so the applicant contends, the Tribunal imposed a condition which had the effect, not of decreasing, but of increasing, the amenity impost on Alto 302. The applicant submits that the Condition 1(a) makes things worse for the views from Alto 302 than they would have been as a consequence of the development in the Application Plans.

23 The form of unreasonableness relied on by the applicant was articulated by the High Court in Minister for Immigration and Citizenship v Li.[5] In Li, the plurality held that the legal standard of unreasonableness is not limited to a decision so unreasonable that no reasonable person could have arrived at it. Unreasonableness is a conclusion which may be applied to a decision which lacks 'an evident and intelligible justification'.[6]

24 In Minister for Immigration and Border Protection v Singh,[7] the Full Court of the Federal Court of Australia discussed the principles underlying legal unreasonableness by reference to Li. The Full Court identified two different contexts in which the concept of unreasonableness is employed: it can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision making process; or it can be outcome focussed, without necessarily identifying another underlying jurisdictional error. This latter form of legal unreasonableness occurs in what French CJ in Li called 'an area of decisional freedom'. It has the character of a choice that is arbitrary, capricious or without 'common sense'. Unreasonableness is an inference that can be drawn because the court cannot identify how the decision was arrived at. In these circumstances, the exercise of power is seen by the supervising court as lacking 'an evident and intelligible justification'.[8]

25 The first respondent submits that the Court's analysis must consider the purpose of the legislation and the scope of the power granted to the Tribunal to impose conditions by s 85 of the Planning and Environment Act 1987 (Vic). If a condition is reasonably capable of being related to the implementation of a planning policy enacted by the Planning and Environment Act, the condition will not be capable of being unreasonable in a manner which would make it invalid.[9] Given the matters which the Tribunal is directed to consider by ss 60 and 84B of the Planning and Environment Act, in exercising a discretion to grant a permit subject to conditions, there is a very broad range of permissible outcomes, including as to permissible height.

26 The first respondent submits that there is no dispute that Condition 1(a) is reasonably capable of being related to the implementation of the planning policy enacted by the Planning and Environment Act. The Tribunal considered whether the proposal achieved a reasonable sharing of views as one of many relevant matters. The Tribunal's order, which imposed particular conditions concerning the permissible height and the stepping of the roof, demonstrates an exercise of discretion which, given the purpose and language of the Planning and Environment Act, is within the bounds of the powers granted to the Tribunal.

27 I am not persuaded that, as long as a permit condition is imposed for what the Tribunal intends to be a planning purpose and appears on its face to be a planning purpose - such as to reduce the height of parts of a building with the aim of ensuring a reasonable sharing of views - the condition cannot be subject to challenge on the ground of Wednesbury unreasonableness.

28 Indeed, in oral argument, counsel for the first respondent conceded that it was a matter of 'fact and degree' and that if the Tribunal had modified plans in a way that produced the opposite of what it sought to achieve, such a decision might be amenable to challenge on administrative law grounds.

29 The grant of a planning permit subject to a condition that did not achieve what the decision-maker intended could fall, in my view, into the second category of unreasonableness identified in Singh, where unreasonableness if an inference that can be drawn because the court cannot identify how the decision was arrived at and the decision appears arbitrary or without 'common sense'.

30 However, for the following reasons, I am not persuaded that the imposition of Condition 1(a) lacks evident and intelligible justification in this sense.

31 The Tribunal considered plans showing a building with a maximum height of 1610.87 AHD at the top of the highest parapet, with the building rising to this maximum height on the south, east and west elevations. The Application Plans show the roof (or rooves) of the chalets on the top level sloping downwards uniformly, falling gradually in height from just below the parapet on the (higher) southern side to 1610.10 AHD on the (lower) northern side.

32 In its reasons for decision,[10] the Tribunal specifically considered the effect of the proposed development on the views from Alto 302. The Tribunal carried out a view and visited Alto 302 after the hearing. It observed that Alto 302 enjoys 'an outstanding view to the mountain range provided across the subject land' and that the panorama enjoyed throughout Alto 302 will be affected by the proposed development, 'which will bring a large building into the foreground and obscure short to mid-range views from some parts of the dwelling'.[11] The Tribunal also noted that the ridge line of the proposed building at 1610.87 AHD was further north on the subject land (i.e. closer to Abominable Way and Alto 302) than the Zacamoco proposal and that it would intercept views from multiple vantage points within Alto 302. The Tribunal then said:[12]

We consider that this is an impost on the amenity of the dwelling and, with a minor modification to the roof form of the proposed building, an acceptable balance and reasonable sharing of views can be achieved.

33 It is clear from this passage that the Tribunal intended to require modification to the roof form of the proposed development in order to improve the views from Alto 302, that is to say, in order to lessen the adverse impact of the proposed development on its views.

34 The Tribunal went on to describe the modification that it required, which is picked up in Condition 1(a). Condition 1(a) imposes maximum building heights to 'step down' the roof line of the development. It provides:

(a) The following maximum building heights must not be exceeded:

(i) 1609.75 AHD within nine metres of New Summit Road;

(ii) 1610.10 AHD between nine metres and 16.4 metres of New Summit Road;

(iii) 1610.87 AHD beyond 16.4 metres of New Summit Road.

These setbacks from New Summit Road are to be measured from a line that is parallel with the north-west intersect of the land with New Summit Road.

35 The applicant submits that by removing the sloping roof, Condition 1(a) permits an increase in the height of the roof beyond 16.4 metres from New Summit Road. This reduces the outlook available from Alto 302 and, as a result, to impose a further impost on the amenity of Alto 302. It also submits that the roof stepping could only be of benefit to views from higher up than Alto 302.

36 The applicant produced sightline diagrams to make this point.

37 The first respondent challenged the admissibility of the sightline diagrams, because their authorship and origin was unclear. In fact, the sightline diagrams were not tendered as evidence and served as aides memoire. They are based on the drawings produced by the first respondent with the addition of other information in evidence in the proceeding. The additional matters relate to the height of Alto 302 and sightlines across the proposed development, assuming the viewer's eye line is at 1.6 metres from floor level.

38 The applicant's sightline diagrams show the height of the viewer in Alto 302 to be 1611.1 AHD, in circumstances where the ridge height of the proposed development closest to the viewer is 1610.87 AHD. This means that the viewer is only 23 centimetres above the ridge height and the view across the top of the development is relatively flat. In these circumstances, so the applicant contends, replacing a sloping roof with a roof that remains at or near that height for what is about half of the width of the development before the stepping down means that views from Alto 302 are diminished.

39 For its part, the first respondent prepared plans showing what it contends is the effect of Condition 1(a) upon the views available from Alto 302. These plans were exhibited to an affidavit of Mark Edward Elliott made on 2 March 2017 in which Mr Elliott deposed that he had been informed by Mr Charles Salter, the director of the first respondent, that the sightline diagrams accompanying the applicant's submissions do not properly show the effect of Condition 1(a) because:

(a) they show sightlines from Alto 302 as though it is located directly opposite the development (in the position of a different lodge known as 'Razorback');

(b) they do not show the effect of the stepped roof given the diagonal or oblique positioning of the Alto apartments; and

(c) they ignore the effect of the extended parapets in the Application Plans.

40 The first respondent prepared a plan showing the oblique position of Alto 302

vis-a-vis the proposed development and the increased viewing cones available to Alto 302 under Condition 1(a). It also provided an east elevation plan showing the retreat of the parapet. Mr Elliott deposed that he was informed by Mr Salter that if the parapet retreat is transposed across all the (chalet) roofs, this change achieves the most significant improvement in views from Alto 302.

41 Finally, Mr Elliott exhibited a plan 'which shows that the step in the roof ordered by the Tribunal results in an identical view to that achieved under the Decision Plans [Application Plans] from a position directly behind site 237, including in the position of Razorback'. Mr Elliott deposes that he was informed by Mr Salter that this perspective, which has been used by the applicant in its sightline drawings, is irrelevant to any consideration of views to be achieved from Alto 302.

42 According to the first respondent, the sloped roof only provides a benefit to the property directly opposite viewing the development at right angles. There is no benefit to Alto 302 in the sloped roof. By contrast, the retreat of the parapet provides a real benefit to Alto 302, albeit of a fairly minor nature.

43 In my view, the critical point made by the first respondent is that Condition 1(a) lowers the parapet that stands at 1610.87 AHD in the Application Plans and runs the length of the roof on the southern, eastern and western sides of the development. This is important because the parapet will interrupt views regardless of the slope of the roof. Moreover, a reduction in the height of the parapet may assist views across the development on an oblique angle as they are from Alto 302.

44 Indeed, the applicant concedes that the retreat (or lowering) of the parapet on the eastern side of the development has marginally widened the viewing window from the smaller of Alto 302's two balconies.

45 In the context of submissions made in an application for leave to appeal on a question of law, and the presentation of limited and untested evidence about the effect of Condition 1(a), it is difficult for the Court to determine precisely how Condition 1(a) will affect views from Alto 302. However, given the role of the parapets in the Application Plans in impeding the views from Alto 302, I struggle to see how removing the sloping roof will make the views worse than they otherwise would have been. Moreover, it seems to me that the lowering of the eastern parapet(s) will assist views that are angled across the proposed development from the east, such as those from Alto 302.

46 If it achieved the opposite of what the Tribunal intended and made things worse, the Tribunal's decision to impose Condition 1(a) would be unreasonable in the legal sense that I have identified. However, I have concluded that, at worst, by imposing Condition 1(a), the Tribunal has effected a small improvement to the views from Alto 302. I am not persuaded that Condition 1(a) makes things worse or, indeed, that it is ineffectual.

47 In oral argument, the applicant contended that if Condition 1(a) was either neutral or effected an improvement that was only very marginal, the unreasonableness ground would be made out, as this was not what the Reasons indicated the Tribunal was trying to achieve.

48 The Reasons make clear that Condition 1(a) was devised to benefit Alto 302. However, the Reasons should not be read as showing that the Tribunal was trying to radically improve the views from Alto 302. The Tribunal sought to achieve a reasonable sharing of views that took into account the interest of the Alto apartments, the Razorback Lodge and the owner of the subject land. It was concerned with a number of competing interests. The extent of the benefit to Alto 302 had to accommodate other parties and it was open to the Tribunal to provide for only a small improvement in the position of Alto 302.

49 It is not the case that Condition 1(a) lacks an evident and intelligible justification. It is not arbitrary, capricious or without 'common sense'. It is a logical response, albeit having only a slight effect, to the problem that was identified by the Tribunal resulting from the height and location of the parapets in the Application Plans. It reflects the Tribunal's expressed desire to effect a more reasonable sharing of views.

51 I observe that the terms of Condition 1(a) were not canvassed or discussed at the hearing. Their origin seems to lie in correspondence from the Minister to the Tribunal dated 26 October 2016 in relation to the Application Plans in which the Minister suggests a modification of building height to more closely reflect the conditions of his Notice of Decision and then sets three maximum building heights very similar to Condition 1(a).

52 The Court was told that this submission/proposal was before the Tribunal but was not discussed at the Tribunal hearing.

53 Condition 1(a) appears to have been formulated by the Tribunal following its site inspection after the conclusion of the hearing. It follows that the parties were not given the opportunity to make submissions on whether Condition 1(a) achieved the desired outcome.

54 It might be argued that the imposition of Condition 1(a) constituted a breach of procedural fairness, in that the applicant was denied the opportunity to be heard as to why Condition 1(a) was unsuitable to its purpose. However, the applicant did not raise such a ground.

55 I have nonetheless given consideration to whether I should invite submissions on this question. Having regard to what I have found to be the effect of Condition 1(a), the fact that a very similar proposal was put forward by the Minister at least in correspondence to the Tribunal and that the applicant was represented by most experienced and competent senior counsel at both the hearing and before me, I have decided that such a step is not called for.

57 The applicant submits that the height controls in DDO1, as they applied to the subject land, were mandatory and that they therefore barred the issue of a planning permit for the proposed development as it appeared in the Application Plans.

58 The parent clause, c 43.02-1 of the Planning Scheme, states that buildings and works 'must' be constructed in accordance with any requirements in a schedule. However it also states:

A permit may be granted to construct a building or construct or carry out works which are not in accordance with any requirement in a schedule to this overlay, unless the schedule specifies otherwise.

The development of land should meet the following requirements:

The maximum level of any part of a building is 4 storeys or 15 metres above natural ground level, whichever is the lesser height. A permit may be granted to increase the height of any roof structure or chimney by 1.5 metres provided no more than 20% of the roof area exceeds 15 metres in height.

A building must be setback:

6 metres from the closest kerbside or constructed edge of a road abutting the frontage of the site and 3 metres from the frontage boundary of the site

6 metres from any building on an adjoining site.

....

A permit may be granted to vary setbacks.

75% of the total site area

....

A permit may be granted to vary site coverage.

60 The applicant submits that the height control in DDO1-A2 is expressed in mandatory terms and that it 'otherwise specifies' for the purposes of the parent control because:

(b) it states that 'a permit may be granted to increase the height of any roof structure or chimney by 1.5 metres provided no more than 20% of the roof area exceeds 15 metres in height';

(c) it does not state that a permit may be granted to otherwise increase the height; and

(d) this is in contrast to the other building and design requirements of DDO1, where it is stated that a permit may be granted to vary the setback and the site coverage specifications.

61 The applicant accepts that the word 'specifies' in 'specifies otherwise' requires exactness, but submits that excluding everything other than what is set out in the text is exact. The Schedule clearly identifies the circumstance where a permit may be granted for a building that does not comply with the height requirements. By necessary implication, it specifies the circumstances in which no permit may be granted. In the case of setbacks and site coverage, a permit may be granted where there is non-compliance in all circumstances, but in the case of building height, it is confined to a circumstance involving increase in the height of a roof structure or a chimney, and in that circumstance, it is confined to 1.5 metres and not more than 20 per cent of the roof area.

62 The applicant submits that the use of the word 'should' in respect of meeting the requirements is not inconsistent with the interpretation that it advances. She says that there is a discretion, but it is a confined discretion. By including words expressly permitting variation to setbacks and site coverage, and at the same time including specific provision in relation to increasing the roof height, the intention was to confine the discretion in relation to roof height. Because it is necessary to give meaning to every word in the provision, this can only be achieved by interpreting the words, 'A permit may be granted to vary' in relation to setback and site coverage requirements as giving meaning to the height restriction.

63 In my view, when read in context with cl 43.02-2 and the use of the word 'should' at the beginning of the table in cl 2.1 of the Schedule, the text in the Schedule does not support the applicant's construction that there is a mandatory height limit.

64 It is common ground that the requirement that the Schedule 'specify otherwise' in cl 43.02-2 requires that which is 'otherwise' specified to be clearly and precisely stated. In this case, the Schedule does not expressly state that a permit may not be granted to vary the requirements in the Schedule. However, I accept that specification otherwise may occur by implication, as was submitted by the applicant, with the caveat that any such implication must be 'necessary, definite and precise'.[13]

65 The question is whether the Schedule specifies by 'necessary, definite and precise' implication that the maximum building height may not be varied.

66 The fact that the Schedule expressly states that minimum setbacks and maximum site coverage requirements may be varied, but does not expressly state that maximum height requirements may be varied, does not - in and of itself - amount to specifying by 'necessary, definite and precise' implication that the maximum height requirement cannot be varied and is mandatory.

67 The applicant submits, in effect, that the words, 'A permit may be granted to increase the height of any roof structure or chimney ...' stand in the place of words stating that a permit may be granted to vary the building maximum height. By this means, the Schedule specifies 'otherwise' for the purposes of the parent provision, that is, it specifies that the maximum height may not be varied.

68 I reject this analysis. The Schedule specifies a maximum building height and a maximum height for 'roof structures' and 'chimneys'. The latter may exceed the former by 1.5 metres, subject to the limitation on roof area. In my view, the Schedule makes separate provision for roof structures and chimneys, rather than providing for roof structures and chimneys to be the only permissible extension to the height limit for buildings. Seen in this way, in combination with the word 'should' at the beginning of cl 2.1 and the clear intention in the parent clause that the height restriction be discretionary unless clearly specified to the contrary, the Schedule stipulates a discretionary height limit for buildings, and a discretionary height limit for roof structures and chimneys. The maximum building height may be varied and the maximum height of roof structures and chimneys may be varied.

69 I also reject the argument that it is necessary to imply a mandatory limit on building height in order to give meaning to the words permitting variation of set back and site coverage requirements. It is true that in the light of the provision in cl 43.02-2 for requirements to be varied, there was no need for the Schedule to state that requirements could be varied. But it does not deprive those words of meaning: they mean what they say. Their absence from the section spelling out maximum heights is, as I have held, insufficient to create a necessary, definite and precise implication that maximum heights may not be varied and, as I have also held, their absence in combination with inclusion of the words pertaining to height limits for roof structures and chimneys does not give rise to a necessary, definite and precise implication that height limits may not be varied.

70 I have had regard to the remainder of the Schedule and have formed the view that no statutory intention can be gleaned from its text supporting an implication that the maximum height requirements must be construed as mandatory. I see no necessary, definite and precise implication in the Schedule that the maximum height of a building cannot be varied.

71 As a final matter, as was submitted by the Minister, extrinsic materials support the construction of the maximum height requirement as discretionary. The circumstances leading to the introduction of Schedule 1 into the Planning Scheme are explained in the Panel Report to Amendment C15 to the Alpine Resorts Planning Scheme dated November 2005. During the Panel hearing, the proponent sought to add the words 'A permit may not otherwise be granted to increase any maximum height specified in this clause', but the Panel recommended that those words not be included. The Panel observed that the introduction of those words would have changed the Schedule from a performance based control towards a more proscriptive control and that, traditionally, most overlays contain provisions that are discretionary and can be varied by planning permit. The Panel's recommendation was adopted.

72 As the Panel observed, the imposition of mandatory height limits would fundamentally change the nature of the overlay control. It should not be construed so as to impose mandatory height limits in the absence of clear words or necessary implication. Neither of those conditions is met in this case.

74 The applicant contends that the Tribunal has misconstrued the Zacamoco decision and that this constitutes legal error, having regard to the weight given to that decision by the Tribunal.

75 The applicant submits that where a matter is relevant as a matter to be taken into account, and it involves the interpretation of a document, the matter is only taken into account if the document is properly interpreted. In this regard, the Zacamoco decision is similar to a planning policy. In this case, so the applicant contends, the Tribunal has failed to understand the heights set in the Zacamoco decision. It has wrongly assumed that the building was allowed to go to a height of 1610.87 AHD and has used this as the benchmark set by Zacamoco, rather than to 1610.10 AHD, which was the actual height of the building set by Zacamoco.

76 The Tribunal dedicated a whole section in the Reasons to the relevance of the Zacamoco decision. It stated:[14]

The Zacamoco decision is a relevant matter. We find it carries significant weight given that it addresses the same land, in physical and strategic circumstances that are not substantially different to how we find them today, other than the way in which the excavated subject land presents today. However, we do not regard the Zacamoco decision as setting 'parameters' that might suggest or imply we are bound in some way to the findings and decision. Zacamoco was decided on its own facts and circumstances, as we refer to again below.

We appreciate why objectors feel that their reasonable expectations with respect to view loss in particular have been 'set' by that decision. But the findings and decision should not be taken out of their context. The decision must be understood in relation to the design that was the subject of the view. The objectors' submission provided us with a very detailed comparison of the Zacamoco plans considered by the Tribunal and the current application. There are material differences between the plans as relevant to the key matters in dispute. Among them are the size and position of the upper levels, the roof profile, and the inclusion/absence of breaks in the uppermost level/s. We return to these differences below.

The Tribunal did not state a building to RL 1610.10 (the building height endorsed under the 2007 permit plans) is the absolute allowable height - nor could it make such a definitive statement. The Tribunal considered a seven storey building with a ridge at RL 1611.10. It required the building to be lowered by one metre and for no part of the building (including any chimney or other architectural feature) to be more than 1611.8 RL or 15 metres above natural ground level at any point directly below.

77 In relation to planning policy and DDO1, the Tribunal said as follows in relation to the Zacamoco decision:[15]

Notwithstanding the height of RL 1610.10 on endorsed plans, as stated at paragraph 33, the Zacamoco decision included a condition that the development approved at that time no part of the building (including any chimney or other architectural feature) be more than 1611.8 RL or 15 metres above natural ground level at any point directly below. The proposed building would have a maximum height of RL 1610.87. It is no more than 15 metres above natural ground level at any point directly below other than two minor incursions as we have already noted. These incursions have negligible impact. It is, therefore, within the expectations of that decision in these respects.

78 Senior Counsel for the applicant took the Court through the rather obscure permit conditions in the Zacamoco decision, including the amendments that were made subsequently, to argue that 1610.87 AHD was never intended to be the height limit for the building proper, but only an upper limit for architectural features such as chimneys and flues. The Zacamoco decision required the roof to be no more than 1610.10 AHD, but it allowed chimneys and architectural features to go to 1611.8 AHD. According to the applicant, the Tribunal misunderstood this to mean that the Zacamoco decision permitted the building height to go to 1610.87 AHD. It has mistakenly taken the figure of 1611.8 AHD as a starting point, and reduced that height by a metre to arrive at 1610.87 AHD.

79 I find this analysis to be speculative and I reject it. Even if a failure to understand the factual conclusions in the Zacamoco decision constituted an error of law, I do not accept the applicant's characterisation of what the Tribunal has done. The Tribunal did not treat Zacamoco as imposing a limit that it then misunderstood. The Tribunal correctly identified 1610.10 AHD as the height of the Zacamoco building on the endorsed plans, this being the result of the condition requiring the height of the development to be reduced by one metre.

80 Furthermore, the Tribunal only stated that the proposed height of the current development of 1610.87 AHD was 'within the expectations' having regard to the Zacamoco decision. Although 1610.87 AHD is higher than 1610.10 AHD by more than half a metre, this was an assessment or conclusion that was open to the Tribunal. Having regard to the requirement that the building be no higher than 15 metres above natural ground level, the rear of the proposed development near Abominable Way could have been higher than the 1611.8 AHD that was imposed for chimneys and architectural features in the Zacamoco decision. Given the controls in force for the current development, even if the Tribunal was mistaken about what the Zacamoco decision permitted, stating that its decision was within the expectations of Zacamoco cannot be regarded as being so material to the Tribunal's decision that, but for error, its decision would have been or might have been different.

82 Leave to appeal is granted and the appeal is deemed to have been instituted and heard.

83 None of the grounds of appeal is made out. The appeal is dismissed.

[1] Zacamoco Pty Ltd v Minister for Planning [2007] VCAT 1023; and correcting order made on 14 July 2007.

[2] [1999] VSCA 117; [1999] 3 VR 331.

[3] [2016] VSC 420 [10].

[4] In the 2017 Amended Plans, the lower level car-park has been lowered by 75 centimetres, which means that both the lower level and level one car-parks are below the pre-2007 ground level. This means that only four storeys of the proposed development is above that ground level.

[5] [2013] HCA 18; (2013) 249 CLR 332 ('Li').

[7] [2014] FCAFC 1 ('Singh').

[9] Botany City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171, [15].

[10] Domdada Pty Ltd v Minister for Planning [2016] VCAT 1926 ('Reasons') [60] - [64].

[13] Stokes v Melbourne CC [2009] VCAT 364, [29].