Applicant v Respondents

1 The applicant proposes to construct a four storey apartment block in Millswyn Street, South Yarra, on a site that is currently occupied by a motel. The Melbourne City Council granted a permit providing for the demolition of the existing building and construction of the replacement apartment building with, among other things, roof decks accommodating two domestic swimming pools with associated safety and mechanical equipment. The design of the proposed building includes a structure approximately one metre high set slightly back from the perimeter of the roof terrace on top of the building. The structure in question is described in the plans as a 'roof cornice' and has been designed, as the Tribunal found, to integrate with the remainder of the building.

2 The applicant applied to the Tribunal to review a permit condition imposed by the Council relating to building height. The relevant condition was as follows:

(1) Prior to the commencement of the development on the land, two copies of plans, drawn to scale must be submitted to the Responsible Authority generally in accordance with the plans received 15 November 2013 but amended to show:

(a) the building height (including the roof cornice/balustrade, swimming pool upstand, rooftop access staircase and lift structures and canopies) reduced to a maximum of 12 metres as measured from the footpath surface level at centre of the Millswyn Street frontage. This excludes lift overruns and the plant enclosure.

3 The Tribunal proceeding was brought pursuant to s 80(1) of the Planning and Environment Act 1987 (Vic) (the 'PE Act'), which provides that an applicant for a permit may apply to the Tribunal for review of any condition in a permit that the responsible authority has issued or decided to grant. The applicant sought review of condition (1)(a) on the following basis:

This condition is unlawful as it proceeds on a legally incorrect basis, namely, that the roof cornice is not an architectural feature because it may serve a function of enclosing habitable roof space.

This condition is unreasonable given that the architectural feature is entirely acceptable in built form terms.

Further, this condition is unreasonable and unnecessary insofar as it concerns the rooftop access and lift structures having regard to the provision of the design and development overlay - schedule 15 (Royal Botanic Gardens).

4 On 23 September 2013, the Tribunal made an order amending condition (1)(a) to require the submission of plans showing:

The deletion of the roof cornice with potential redesign to include a referable element within the maximum building height of 12 metres, as measured from the footpath surface level at the centre of the Millswyn Street frontage.

5 In addition, the Tribunal imposed a new condition (condition (1)(f)) to require:

Deletion of the pool fencing/gate from the rooftop unless demonstrated to be exempt from the need for planning permission or related permission is granted.

6 The applicant now seeks leave to appeal the Tribunal's order and, if leave is granted, to appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the 'VCAT Act') on the basis that the amended condition (1)(a) and the new condition (1)(f) are unlawful.

7 In issue in the proposed appeal are two structures on the roof of the proposed building - the 'roof cornice' and the structure described by the Tribunal in condition (1)(f) as a 'pool fencing/gate' which encloses a small area at the top of the stairwell to the roof terrace and prevents unimpeded access to the deck and pool areas from the stairs.

8 A permit for the development was required under both the Heritage Overlay ('HO') and the Design and Development Overlay ('DDO') in cl 43.02 of the Melbourne Planning Scheme. No issues arose in relation to the permit required under the HO. However, the proper construction of the DDO and its application remain in issue.

9 Clause 43.02-2 imposes a requirement to obtain a permit to construct a building or construct or carry out works and to construct a fence if specified in the schedule to the DDO. Clause 43.02-5 contains decision guidelines requiring regard to be had, as appropriate, to whether the bulk, location and appearance of any proposed buildings and works will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area, the design objectives of the relevant schedule to the DDO and the provisions of any relevant policies and urban design guidelines.[1]

10 The relevant schedule to the DDO is Schedule 15 ('DDO15'). The design objectives of DDO15 refer to impacts on the Royal Botanic Gardens, and to ensuring that any new development or redevelopment is compatible with the existing scale and character of buildings in the area and to protecting the residential amenity of the area.

11 The area covered by the DDO15 is divided into two: Area A1 in which there is a mandatory maximum building height of 12 metres and Area A2 in which there is a discretionary maximum building height of 12 metres. The 'built form outcomes' in respect of each area relevantly require development to be compatible with the scale and character of the South Yarra area. Under 'buildings and works', it is noted that a permit cannot be granted to vary the maximum building height specified in Table 1 to the Schedule (in respect of Area A1) and that buildings or works should not exceed the maximum building height in Table 2 to the Schedule (in respect of Area A2). An application to exceed the maximum building height specified in Table 2 must demonstrate how the development will continue to achieve the design objectives and built form outcomes of the DDO15 and any local planning policy requirements.

12 The proposed development is in Area A1, so the mandatory height limit applies.

13 DDO15 stipulates how building height is to be established:

Building height is the vertical distance between the footpath or natural surface level at the centre of the site frontage and the highest point of the building, with the exception of architectural features and building services.

14 This last short paragraph, which specifies how height is to be measured for the purposes of the height restrictions in DDO15, removes certain roof structures from the calculation: architectural features and building services. In issue in the conditions review before the Tribunal was whether the roof cornice and the pool fencing/gate fell within the exception to the mandatory 12 metre height limit as 'architectural features' or 'building services'.

15 The condition imposed by the Council required everything on the roof of the building, other than lift overruns and plant enclosure, to fall within the 12 metre mandatory height restriction. It sought in this way to limit the height of 'projections' generally.

16 The applicant submitted to the Tribunal that the relevant projections, including specifically the roof cornice, were either architectural features or building services, such that there was a discretion to permit them in accordance with DDO15. It further submitted that it would be appropriate to grant approval for the projections, having regard to their planning merits. The applicant called expert evidence to substantiate both of these positions.

17 The roof cornice was the focus of attention. The question was whether it was an 'architectural feature' that was therefore exempt from the mandatory 12 metre height restriction.

18 The Tribunal noted that the terms 'architectural feature' and 'building services' were not defined in the Planning Scheme or in the PE Act and that no definitive interpretation emerged from the relevant case law. However, the context in which these expressions appeared was relevant to their interpretation. In this case, the context included the fact that the phrases described an exception to a provision controlling maximum building height.

19 The applicant submitted to the Tribunal that the meaning of 'architectural feature' was 'a distinctive or characteristic part of a building that performs an architectural role, be it functional, aesthetic or some combination of the two'. The Tribunal accepted that this was a reasonable description of an 'architectural feature'. However, it did not accept that a broad reading was permissible for the purposes of DDO15 if it led to a situation where almost any distinct building feature could qualify as an architectural feature, because that would have the potential to undermine the outcome sought by DDO15, namely, to confine the building height in Area A1 to 12 metres, with limited exceptions.[2]

20 Thus, turning to the roof cornice, the Tribunal said that it had difficulty in characterising the roof cornice as an 'architectural feature' for the purpose of DDO15, having regard to its 'real and substantial purpose'. The Tribunal stated that, for the purposes of DDO15, 'a judgment call will often need to be made that derives from an assessment of principal purpose'.[3] It acknowledged that the roof cornice had been designed so as to be integrated with the rest of the building and, to that extent, that it could be regarded as an architectural feature. However, the key reason it had been designed at the location along the periphery of the trafficable roof at a height of one metre, rather than as an integrated building feature within the 12 metre building height, was so that it could function as a rooftop barrier. The Tribunal did not accept that the principal purpose of the roof cornice was aesthetic. As a result, so the Tribunal held, it was not permitted under the provisions of DDO15. In this context, the Tribunal said:

I am also conscious that there comes a point where it is challenging to attribute the status of an architectural feature for the purposes of DDO15 to an element that is so obviously functional (but not a building service per se), since this would appear to provide scope for virtually any building element to be regarded as an architectural feature, so long as it was well designed. I consider that this would have the potential to undermine the operation of the DDO which has at its core an intent to limit building height to 12 metres, while providing discretion to approve only limited types of protrusions.[4]

21 The Tribunal did, however, recognise the 'potential compositional importance' of providing a suitable architectural element at the top of the building[5] and amended condition (1)(a) to provide for a similar architectural expression within the 12 metre height limit.

22 One of the other elements in dispute was the 'pool fencing/gate'. There was no suggestion that it was an architectural feature, but it might have been a 'building service'. The Tribunal observed that its only role was to regulate access to an area of the building and if that was sufficient for it to be a 'building service', then any fence, balustrade, door or even window would be a building service. Again, this could not possibly have been intended by the relevant provisions of DDO15. The Tribunal concluded:

I consider that the proper characterisation of the pool fence/gates is as a fence, albeit on a rooftop ie above ground level. That is to say, I do not principally regard it as an "architectural feature" or a "building service" for the purposes of DDO15.

The permit holder should obtain advice as to whether such fencing is exempt from the need for a permit, or whether other permission is required under the relevant planning controls (such as under the Heritage Overlay). Notably, it appears that the schedule to the DDO does not require permission to be obtained for the construction of a fence per se.[6]

23 The applicant submits that the Tribunal erred in reading down the term 'architectural feature' by reference to an assessment of the principal purpose of the structure and in concluding that the principal purpose of the roof cornice was to function as a rooftop barrier and that it could not therefore be characterised as an 'architectural feature'.

24 The task of statutory construction must begin with consideration of the text itself. Words should be given their plain and ordinary meaning. This meaning is only displaced in favour of a narrower meaning if such a construction is dictated by the context and purpose of the legislation.[7]

25 It is clear from the Reasons that the Tribunal adopted a narrow meaning of the term 'architectural feature' based on what it identified to be the outcome sought by DDO15, namely, 'to confine building height to 12 metres, with limited exceptions'. The Tribunal accepted that the ordinary meaning of the term 'architectural feature' is a distinctive or characteristic part of a building that performs an architectural role, whether it be functional or aesthetic or some combination of the two. However, it adopted a specific and more limited meaning of the term referrable to what it considered to be the outcome sought by DDO15 that excluded from the term parts of buildings that had a real and substantial purpose (or principal purpose) that was functional.

26 The Council submitted to the Tribunal that a structure was an architectural feature only if introduced for the sole purpose of enhancing the architectural integrity of the building. The Tribunal expressed reservations about this definition and concern about including or excluding architectural features from the exception on the basis that they were functional as opposed to compositionally effective, aesthetic or decorative. However, it nonetheless decided that the roof cornice was not an architectural feature because its principal purpose was not aesthetic and the key reason for its design and construction was for it to function as a rooftop barrier.

27 In my view, there is no warrant in the DDO[8] to read down the term 'architectural feature' to exclude anything that has a real and substantial functional purpose. The distinction between something that is functional and something that is aesthetic is not to be found in the control and nor is it required in order for the control to operate as it should.

28 It is trite that a structure on or attached to a building may be at once functional and aesthetic. The applicant gave as an example a minaret, defined as 'a lofty, often slender, tower or turret attached to a Muslim mosque, surrounded by or furnished with one or more balconies, from which the muezzin calls the people to prayer'.[9] The principal purpose of a minaret is a functional purpose. Yet it would be wrong to say that a minaret was not an architectural feature of a mosque. The position is the same for many other architectural features: architectural features include such things as a roof, a loggia, a colonnade and a gallery, most of which serve a functional purpose, as well as being an architectural or aesthetic feature of the relevant building.

29 The term 'architectural feature' according to its ordinary and natural meaning describes the visual appearance of a structure or object. In deciding whether the roof cornice was a 'feature', the Tribunal was required to determine whether it was 'distinctive' or 'characteristic'. There is nothing in the ordinary meaning of the word 'feature' that requires attention to be given to the purpose of the structure in question. Further, whether the roof cornice is a feature that is 'architectural' involves an assessment of how the structure has been treated in the design. The fact that the roof cornice could also be called a barrier, fence, parapet or upstand is not relevant to determining whether it is also a 'feature', and whether, as such, it could be described as 'architectural'.

30 The Council submits that there is no rule of law or interpretation requiring the Tribunal to disregard the inherent function of the structure in deciding upon the correct categorisation of the structure. It says that the Tribunal considered the form of the roof cornice, its presentation, its integration with the building and also its function in deciding whether it was an architectural feature.

31 In my view, this submission misses the point. The Tribunal decided that the roof cornice was not an architectural feature having regard to its functionality, that is, having regard to the fact that its real and significant purpose was to function as a barrier. The question of functionality was determinative. As a result of its functionality, the Tribunal held that the roof cornice did not benefit from the exemption from the 12 metre height restriction.

32 The Council further submits that to construe 'architectural feature' broadly would be to destroy the distinction in DDO15 between the mandatory height limit and the discretionary height limit. The Council referred to Amendment C77, which introduced the mandatory height control, as making it clear that the distinction was one that should be maintained.

33 The distinction between the mandatory height limit and the discretionary height limit is apparent from DDO15 itself. It is a feature of DDO15. DDO15 is to be construed consistently with the maintenance of this distinction. Nonetheless, it is in my view impermissible to seek to reinforce this distinction by reading down words arbitrarily, that is, in a way that is neither suggested nor supported by the context of the policy or planning scheme as a whole. As the applicant suggested, if it was necessary to read down the term 'architectural feature' to maintain the distinction between the mandatory and discretionary height limits, it could have been done, not by reference to the purpose of the structure, but by reference to some more appropriate test, such as taking a constrained view of the word 'feature' or the word 'architectural'.

34 The Tribunal erred in interpreting the meaning of 'architectural feature' in DDO15 by concluding that the meaning of the term required an assessment of the principal purpose of the structure.

35 Ground 1 is made out. It is unnecessary to consider Grounds 2 and 3.

36 By ground 4, the applicant submits that the Tribunal, having found that the principal purpose of the roof cornice was to function as a barrier, erred in failing:

(a) to provide the applicant with an opportunity to make submissions as to whether a permit was required for such a structure;

(b) to consider whether the roof cornice was a 'fence' for the purposes of the Planning Scheme;

(c) to conclude that the barrier was a fence that did not require planning permission under DDO15; and

(d) to make a finding as to whether the fence required a permit under any other provision of the Planning Scheme and, if so, to determine whether planning permission should be granted for the fence.

37 As a consequence, the applicant submits that in imposing condition (1)(a), the Tribunal took into account an irrelevant consideration, namely DDO15, pursuant to which no permit was required for the roof cornice due to the fact that it was exempt from the need for a permit as a 'fence' pursuant to cl 62.02-2 of the Melbourne Planning Scheme.

38 By Ground 5, the applicant makes similar submissions in respect of the treatment of the pool fencing/gate. It submits that the Tribunal erred in failing to give the applicant the opportunity to make submissions as to whether a permit was required for the pool fencing/gate, in failing to make a finding as to whether a permit was required for the pool fencing/gate and in failing to decide whether a permit should be granted for the pool fencing/gate.

39 The applicant submits that as a consequence of these failures, the Tribunal could not be satisfied that the new condition (condition (1)(f)) was necessary as an incident, result or ramification of the removal of or alteration to the condition under challenge (condition (1)(a)).

40 These grounds arise from an unusual circumstance.

41 The applicant sought review of the permit condition on the basis that the roof cornice was an architectural feature and therefore not subject to the building height restriction in DDO15. The Tribunal found that the purpose of the roof cornice was to function as a rooftop barrier and was therefore subject to the height restriction in DDO15.

42 The applicant says that while neither its nor the Council's written submission to the Tribunal argued that the structures on the rooftop constituted a 'fence' within the meaning of cl 62.02-2 of the Melbourne Planning Scheme (and was therefore exempt from the requirement for a permit), the applicant made oral submissions to the Tribunal in response to the Council's argument that the roof cornice was a barrier as follows:

MR GOBBO: If it is said to you on behalf of the Council that its proper characterisation is as a wall or a barrier, then we say that's not right. It's not a wall in any sense except if you were to put no limit on the notion of what would be a wall. Any upright structure could in theory be a wall, even if it was a brick high, but we say that there is a clear understanding of what a wall is in context of a built form control and that would be a wall. It could easily be regarded as a barrier, but is that to put the cart before the horse and to fail to in fact examine the question of whether it is an architectural feature. It can be both. Now if the Council says it is a barrier, then we would say it is properly therefore characterised for the planning scheme purposes as a fence. Now a fence is exempt from the DDO. It would require a permit under the Heritage Overlay because the Heritage Overlay specifically says that a permit is required for a fence whereas the exemptions in cl 62 -

MEMBER: 62.02.

MR GOBBO: Because the DDO does not specifically exclude the fence, then it would be excluded.

MEMBER: So the DDO, a permit is required to construct a building or carry out works. And it doesn't apply - sorry - and to construct a fence if specified in a schedule. And then you turn to the schedule -

MR GOBBO: And it doesn't.

MEMBER: And it doesn't. Okay. Thank you.

MR GOBBO: So if it is a fence, then it doesn't need a permit under the DDO and Council has no issue with it from a heritage point of view. Its objection to it is that it is in breach of the DDO. Now - that would make - arguably would require that permission to be sought and granted. As a matter of formality there are a number of ways that could be done.

MEMBER: You don't have to take me through that. I can visualise that.

MR GOBBO: What we say just puts paid to the notion that the proper characterisation of this as a barrier or a fence because the control is not directed to those things. We go now to the phrase building services. The phrase building services is undefined and once again must be given its ordinary and natural meaning. Once again -

MEMBER: Sorry - the only, the only, yes, it raises a can of worms in terms of whether you can have a fence on the top of the building, whether you would regard that as a fence or not - I don't know that I need to go there - as distinct from a barrier.

MR GOBBO: There have been some cases about that and we have put a couple in the back of the folder.

MEMBER: Good, thank you.

43 It is uncontroversial that the applicant's case in the Tribunal did not rely upon the characterisation of the roof cornice as a 'fence'. To the contrary, the applicant purported to have 'put paid' to the notion that the proper characterisation of the roof cornice was a barrier or a fence. However, the applicant did submit that the consequence of the Tribunal finding in favour of the Council's submission that the roof cornice was a barrier was that it would be exempt from the need for a permit under the DDO as a 'fence' and unobjectionable on the basis of heritage considerations, despite the formal requirement for a permit for a 'fence' under the HO.

44 The applicant submits that by stating that the applicant did not 'need to go there', the Tribunal specifically dissuaded its counsel from making further submissions about whether the roof cornice should be characterised as a fence and whether it was therefore exempt from the permit requirements in the DDO. Likewise, it submits that its counsel was specifically discouraged by the Tribunal from making submissions that the 'pool fencing/gate' was a fence because, in response to its submissions that a fence would arguably require permission to be sought and granted as a matter of formality, the Tribunal stated, 'You don't have to take me through that'.

45 In the alternative, the applicant contends that the Tribunal ought to have proceeded to make those findings and draw the conclusion that each of the roof cornice and the 'pool fencing/gate' was exempt from the need for a permit under the DDO by reason of being a 'fence'.

46 Whether or not the Tribunal dissuaded the parties from 'going there', the Tribunal certainly did not invite the parties to make further submissions after making the factual finding that the principal purpose of the roof cornice was to function as a rooftop barrier. The applicant submits that the Tribunal had a duty to give the applicant the opportunity to make submissions on the issue, as it arose directly as a result of the Tribunal's rejection of the applicant's primary argument, which involved findings of fact about the proposed structure. The applicant says that this was a vitiating error in that, had it been provided with such an opportunity, it would have been able to make good the proposition that it was a necessary consequence of the Tribunal's findings of fact that the structure was exempt from the need for a permit. The applicant would then have been able to take advantage of the exemption to which it was entitled.

47 The same or similar argument is raised in relation to the pool fencing/gate.

48 The proceeding in the Tribunal was an application to review conditions to be imposed on a permit that the Council had determined to issue. The issues considered by the Tribunal were the issues raised by the applicant in its application for review of the disputed conditions. The applicant's grounds of review in the Tribunal did not assert, and the hearing did not proceed upon the basis that the applicant contended that either of the structures in dispute was a 'fence'.

49 Indeed, the applicant does not now contend that it put any argument to the Tribunal that the element described by it as a roof cornice was actually a fence. Rather, it says that it made submissions based on the Council's position that the roof cornice was a barrier or a wall and the Tribunal's finding that its primary purpose was a barrier. The applicant does not say that it sought to put forward any argument obliging the Tribunal to conclude that a barrier was identical to a fence for the purposes of cl 62.02-2 of the Planning Scheme or that it put forward any basis upon which the Tribunal could conclude that a barrier was necessarily a fence for the purposes of the exemption in cl 62.02-2.

50 It was open to the applicant to argue its case before the Tribunal on the basis of alternative propositions. It could have argued that the roof cornice was an architectural feature, but if the Tribunal was not satisfied of that, then the roof cornice was a fence for which no permit was required. The applicant did not pursue such a course, despite the fact that at the permit application stage it had presented plans to the Council which depicted an element in the location of the roof cornice as a 'safety fence', noting that it comprised 'frittered glazed balustrade with stainless steel handrail'.

51 The applicant was represented in the Tribunal by very experienced, very able Senior Counsel. Senior Counsel, in the passage set out above, identified what he thought to be the consequences of the Tribunal finding that the roof cornice was a barrier. If he thought the argument a good one that the roof cornice as barrier was also a 'fence' for the purposes of the control and therefore exempt from the permit requirement, Senior Counsel was well able to press that argument, despite the Tribunal telling him that he need not 'go there'. Had the applicant wanted the Tribunal to actively consider this alternative, it was in a position to press the argument. It did not.

52 I do not accept that the Tribunal erred in failing to provide the applicant with the opportunity to make good the argument based on the roof cornice being a 'fence' for the purposes of the DDO.

53 Furthermore, the proposition that the Tribunal should have simply proceeded on its own motion to find that the roof cornice was a fence and then to proceed to find it to be exempt from any permit requirements (other than under the HO) cannot be sustained. It is not at all clear that the roof cornice as barrier was a 'fence' for the purpose of the control, having regard to the need to consider the use of that term in the context of the control as a whole. Had the Tribunal gone ahead and done what the applicant says it was obliged to do and decided the question in its favour without the benefit of argument, it would have clearly breached its obligation of procedural fairness to the other parties to the Tribunal proceeding.

54 In Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd,[10] the Full Court of the Federal Court of Australia stated that the requirement to give a party an opportunity to be heard will ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.[11] This right extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.[12]

55 In this case, having regard to the way in which the applicant challenged condition (1)(a), for the Tribunal to find that the roof cornice was a 'fence' and therefore exempt from the requirement for a permit under the DDO would be to decide an issue in dispute in a way not raised other than incidentally by the applicant, and that was not apparent from the provisions of the Planning Scheme. The Tribunal would have arrived at a conclusion adverse to the Council and objectors without giving those parties an opportunity to be heard on the question.

56 I therefore reject the submission that the Tribunal should have proceeded on its own motion to consider whether the roof cornice was a 'fence', to decide that it was and that DDO15 was therefore irrelevant and no permit condition referrable to it was required in respect of the roof cornice.

58 In the case of the pool fencing/gate, the Tribunal stated that it regarded the proper characterisation of this structure as a fence rather than as an architectural feature or a building service. However, for the same reasons as above, I reject the submission that the Tribunal breached a duty to give the applicant the opportunity to make submissions as to whether a permit was required for a structure so characterised and that the Tribunal erred in not proceeding to make that finding the pool fencing/gate was exempt from the need for a permit by reason of it being a fence. This was not the application that was before the Tribunal, it was not argued and it would have been a breach of procedural fairness for the Tribunal to so conclude without hearing from the other parties to the proceeding on the subject.

(1)(f) Deletion of the pool fencing/gate from the rooftop unless demonstrated to be exempt from the need for planning permission or related permission is granted.

61 The new condition appears to be a product of the amendment to condition (1)(a), in that condition (1)(a) no longer captures all roof-top structures. The new condition is also plainly a function of the fact that the question of whether the pool fencing/gate was a 'fence' that was exempt from permit requirements (other than under the HO) by reason of cl 62.02-2 of the Planning Scheme was not argued and the possibility that no permit was required by the DDO was therefore left open. The pool fencing/gate arose as a specific issue in the course of the hearing. The Tribunal was not persuaded that the pool fencing/gate was exempt from the height restriction in DDO15 as a building service, but must have considered that there was a possibility that it was exempt from the need for a permit under the DDO on some other basis.

62 The applicant submits that the new condition is invalid because it unlawfully delegates to another person or body two tasks:

(a) determining whether the pool fencing/gate requires a planning permit; and

(b) determining whether it should be granted a planning permit.

63 The applicant submits that the power to decide if the pool fencing/gate ought to be allowed to remain by way of permit condition was a power conferred on the Tribunal by s 51(2) of the VCAT Act and was not a power that could be or should have been delegated.[13]

64 Insofar as the new condition involves a delegation of responsibility to another body, the Council submits that such a delegation by permit condition is specifically authorised by s 62(2)(a) of the PE Act, which states:

The responsible authority may include conditions that specify things are to be done to the satisfaction of the responsible authority [or] a minister, public authority, municipal council or referral authority.

65 In my view, the effect of the new condition is to require something (the pool fencing/gate) to be deleted from the plans (in other words, the new condition prohibits the construction of the pool fencing/gate) unless someone subsequently permits it (by allowing it to be included in approved plans). The new condition is not one that specifies things that are to be done to the satisfaction of the responsible authority. Rather, it purports to prohibit something subject to the responsible authority later agreeing that it can, after all, be done. The new condition is not conditional in the sense contemplated by s 62(2)(a) of the PE Act.

66 The Council further submits that the proviso in the new condition is merely 'surplus verbiage' to the condition and does no more than reflect the possibility that the applicant could seek a declaration from the Tribunal or further consent for these elements from the Council as responsible authority. It can therefore be ignored.

67 I do not think the 'surplus verbiage' can simply be ignored. To leave it in place but assume that it will be ignored as meaningless creates uncertainty, if not confusion. The new condition does not state who needs to be satisfied or what type of permission is required if an exemption is not demonstrated. In particular, it is not clear whether a new permit is required in order for the structure to remain on the plans or whether permission can be provided by the Council through a secondary consent.

68 In my view, the condition as it is presently formulated is void for uncertainty. The proviso ought to be removed from the condition.

69 The Court has power under s 148(7)(b) of the VCAT Act to make 'an order that the Tribunal could have made in the proceeding' and, under s 148(7)(d), 'any other order the court thinks appropriate'. It would be open to the Court to order that that the proviso be deleted from the new condition. However, the order of the Tribunal will be set aside and the proceeding remitted to the Tribunal to be heard and decided again by reason of the success of Ground 1 in any event. Accordingly, the Court will leave it to the Tribunal on the rehearing to decide the appropriate form of condition, if any, for the pool fencing/gate.

70 Grounds 1 and 6 are made out. Leave to appeal is granted, and the appeal is treated as having been instituted and heard instanter and allowed. The order of the Tribunal will be set aside and the proceeding remitted to the Tribunal to be heard and decided again.

71 I will hear from the parties as to whether the Tribunal is to be constituted for the rehearing by the same member.

[1] Which also require reference, as appropriate, to the State Planning Policy Framework, the Local Planning Policy Framework, the Municipal Strategic Statement and local planning policies.

[2] SGRC Pty Ltd v Melbourne CC [2013] VCAT 1646 ('Reasons'), [19].

[7] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27.

[8] Including, for the avoidance of doubt, DDO15.

[10] [1994] FCA 1074; (1994) 49 FCR 576 ('Alphaone'), cited with approval by the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152.

[13] It relies on the principle that when a discretionary power is conferred by statute on a particular person or body, as a general rule, the power can only be validly exercised by the person or body upon whom it was conferred. Its exercise cannot be delegated to someone else, unless the statute, upon its proper construction, permits such delegation: Racecourse Co-operative Sugar Assn Ltd v Attorney-General (Qld) (1979) 142 CLR 460, 481; Clarke v Elias [2008] VSC 427, [18].