APPLICANTS FOR REVIEW : Vincent Arborea & Nick Arborea

[2001] VCAT 2454

being the land in Certificate of Title Volume 5439 Folio 510.

The site is a quadrilateral of land, almost rectangular in shape, having a frontage of 13.410 at 10m to the western side of Bates Court with a northern side boundary of 42.190m, a southern side boundary of 46.690m and a rear (eastern boundary of 19.210m).

Mr Michael Nelthorpe, town planner, appeared for the Responsible Authority.

Mr Nicholas Arborea, Applicant, appeared on behalf of himself and his fellow applicant.

Application under S.79 of the Planning and Environment Act 1987 (PE Act) for review of the failure to grant a permit within the prescribed time.

1. This case a concerns a proposal for the erection of two dwellings on the land. A permit for the dual occupancy being sought was granted on the 7 May 1999 in Permit No. P5205 issued by the Hume City Council as Responsible Authority on that day. That permit granted permission for development and use of the land as a dual occupancy, that is to say, as having two dwellings on the allotment. The permit contained a number of conditions. The first required the submission and approval of modified plans. When approved such plans were to be endorsed and to form part of the permit. The plans were to be generally in accordance with the plans submitted with the application but modified in certain specified ways.

2. After the issue of the permit, plans were lodged for approval and endorsement in accordance with condition 1 of the permit. Those plans were endorsed on the 1 June 1999. They depicted two dwellings on the land. They were both reasonably substantial dwellings of two storey construction. One was located toward the front of the allotment, and the other toward the back, but both were of sufficient size so that, taken together with car parking and other arrangements, they occupied so much of the allotment that no other dwelling unit could be fitted onto it.

3. I was informed that a previous idea of three dwellings on the land had been mooted, but that idea is not relevant for present purposes. I note that the review site falls from its frontage to Bates Court down to its rear, southern, boundary, and that there are houses on either side of it.

5. Early in this year of 2001 Mr Arborea decided that he did not wish to proceed with his dual occupancy in its current form. He now prefers a new version with two much smaller two-storey units, one at the front or western end of the allotment, and the other near the rear, eastern, boundary. This arrangement leaves an open area in the middle which could be the site for a further unit of a similar scale. However, Mr Arborea did not apply for three units.

6. He says that he discussed the possibility with planning officers of the Council. He seems to think that such discussions and negotiations are very important and that undertakings or promises given, or assumed to have been given, are more important than actual permit applications and actual permits. If so, he is mistaken in this belief. Responsible Authorities often encourage the practice of consulting with their officers as to possible developments, but officers cannot bind the Responsible Authority. Only permits can really be relied upon, and they can only be obtained by making a permit application.

7. In May 2001 Mr Arborea did not make a new permit application, either for a three dwelling development, or for his revised two dwelling proposal.

8. He had some plans prepared for the two dwelling proposal. To say he had plans prepared does not imply that they were adequate plans with sufficient clarity and detail. However, he submitted them to the Responsible Authority. What he wanted was for them to be endorsed in relation to his existing permit. His permit has been extended so that it is still operative and able to be relied upon.

9. The Responsible Authority might have regarded the lodging of these plans as being under s. 62(3) PE Act. That sub-section provides:-

"(3) The responsible authority may approve an amendment to any plans, drawings or other documents approved under a permit if the amendment is consistent with -

(a) the planning scheme currently applying to the land; and

The Permit Applicant had a set of plans approved and endorsed on the 1 June 1999. The plans had to conform with the planning scheme and the planning permit that had been issued on the 7 May 1999. However, the plans in fact endorsed are not the only form of plans that could have been endorsed. Some variation of those plans could have been endorsed provided that they complied with the planning scheme and the permit, including the modifications specified in condition 1 of the permit. The Applicant could have done this in July 1999, and, if appropriate, the second set of plans could have been approved and endorsed. In fact he did not do so until May 2001.

10. It seems to me that a useful test of whether a proposed amendment under s. 62(3) of approved plans would be to ask whether the plans, amended as proposed, could have been approved and endorsed in that form if originally lodged for approval in that form. Of course if the answer to this question is "yes" it does not automatically follow that the plans as proposed to be amended must be approved. If they are required to be to the satisfaction of the Responsible Authority, then that body will only give its approval if it is satisfied.

11. The Responsible Authority did not consider the proposed amendment pursuant to s. 63(3) PE Act. It appears that this provision did not come to mind.

12. In any event, the Responsible Authority may have decided that it could not approve the May 2001 plans pursuant to s. 62(3). As I have said, and as the sub-section itself specifies, the amended plans must be consistent with the permit. It will be recalled that condition 1 of the permit requires the approval and endorsement of modified plans which must be, in the words of condition 1, "generally in accordance with the plans submitted with the application". The plans actually endorsed were, presumably, generally in accordance with the plans submitted with the application. The May 2001 plans could only be approved and endorsed under permit P5205 if they too answered the description of being "generally in accordance with the plans submitted with the application".

13. I have not seen the plans submitted with the application, and I am not really in a position to say whether the May 2001 plans answer that description, or whether they are so different from the plans submitted with the application as to not be generally in accordance with such application plans.

14. Nevertheless, it may well be that the May 2001 plans could be approved and endorsed as modifications to the endorsed plans. I note that the dwellings depicted on the May 2001 plans are considerably smaller than those on the currently endorsed plans, so they may be less intrusive and less troublesome and may be suitable for approval.

15. If the May 2001 plans are not generally in accordance with the application plans, then they cannot be regarded as consistent with the permit because of not complying with condition 1 thereof. In that event the matter might be capable of remedy, from the Applicant's point of view, by an amendment to the existing permit. Amendments to permits can be achieved by the Responsible Authority pursuant to ss 72 and 73 PE Act or by this Tribunal pursuant to s. 87 and the subsequent sections of that Act. For the Tribunal to make an amendment it is necessary for the person requesting the amendment to satisfy the Tribunal of the existence of one or more of the grounds set out in s. 87(1). It may be that no such ground is available in this case. I am not in a position to comment on that.

16. So far as ss 72 and 73 are concerned, the Responsible Authority can make amendments pursuant to s. 72 provided that the constraints imposed by s 73 do not prevent that course being followed. Section 73 provides that the Responsible Authority may amend a permit if it is satisfied that the amendment will satisfy sub-sections (a) to (d). The pertinent one, and the one giving concern in the current case, is s. 73(c). That sub-section provides that the Responsible Authority may amend a permit if it is satisfied that the amendment " will not cause an increase in detriment to any person".

17. The Responsible Authority, apparently without considering s. 62(3), decided to regard the lodgement of the plans as a request for an amendment of the permit under ss 72 and 73 PE Act.

18. In doing so it was not contemplating an amendment to condition 1 in relation to plans needing to be generally in accordance with the application plans, or to any amendment to the wording of the permit at all. Condition 1 provides that upon approval and endorsement plans will become part of the permit. The Responsible Authority has taken the view that, as part of the permit, the plans can be amended under ss. 72 and 73.

19. I do not wish to suggest that the Responsible Authority is wrong in that view although, as I have pointed out, amendment of the permit is not necessary if s. 62(3) can be relied upon.

20. On that basis I think it was open to the Applicant, if the Responsible Authority declined to endorse the May 2001 plans, or failed to make a decision on them within a reasonable time, to apply to this Tribunal for a review of such decision or failure pursuant to s. 149 PE Act.

21. Section 149 provides that the Tribunal can review a decision of a Responsible Authority deciding that it will not be satisfied with plans or its failure to give its consent or approval. Upon such an application under s. 149 PE Act the Tribunal can make a decision in place of the decision or failure of the Responsible Authority deciding that it is to be satisfied or that necessary approval is given. However, Mr Arborea has not made an application to the Tribunal under s. 149.

22. The Responsible Authority has argued that the May 2001 plans are unsatisfactory, unclear and ambiguous. If it forms such a view, it should have advised Mr Arborea to that effect within a reasonable time so that steps could be taken, if necessary, either to correct the deficiency or to apply to the Tribunal under s. 149 PE Act. It did not do so. Instead it embarked on steps that are not provided for in the legislation. It gave notice of the plans to owners and occupiers of nearby properties inviting them to lodge objections. That procedure would be appropriate if there had been an application for a new permit, but there was not. There is no reason why the Responsible Authority should not consult or take account of the views of the owners and occupiers of neighbouring land if it sees fit, although it should not unduly delay carrying out its duties on account of adopting this extra procedure.

23. In fact a good deal of time did go by. It was not until the 14 September 2001 that the Responsible Authority wrote to Mr Arborea. The letter commenced by saying:-

I refer to amended plans lodged on 10 May 2001 and subsequent objections received. You are advised that in light of the objections received from neighbouring residents to the request to the amended plans (sic), Council is unable to endorse these amended plans as part of Planning Permit No. P5205, issued on 7 May 1999.

Section 73 of the Planning and Environment Act 1987 precludes the Council from processing the amended plans where any increase in detriment is likely as a result of the amendment. The objections infer that detriment is caused by the alterations to the development and thus a planning application process should follow.

24. These paragraphs show a misunderstanding on the part of the Responsible Authority as to its powers and duties under s. 72 and 73 PE Act. It is embarked on this extra statutory procedure of advertising and calling for objections and then decided, merely because objections have been received, but it cannot act under s. 72. In the first paragraph quoted above it claims that it is "unable" to endorse the amended plans in the light of the objections. In the second paragraph it says that the objections "infer" that detriment is caused.

25. It is the Responsible Authority that has to be satisfied under s. 73(c) that the amendment will not cause an increase in detriment to any person. It is to make up its own mind on this point whether or not it chooses to take extra steps in consulting neighbours. It is not bound by what the neighbours might say. An appropriate assessment might find that the neighbours were quite wrong and have taken a view so unreasonable that no Responsible Authority acting reasonably could adopt it. The Responsible Authority cannot abrogate its responsibility and cast it on to the objectors by merely deciding that it cannot act under ss 72 and 73 if some objection is received.

26. I might say that one of the difficulties about the hearing on the 10 December 2001 was the conflicting claims made by Mr Arborea and the representatives of the Responsible Authority as to what has been said at various meetings that have taken place. With the advantage of hindsight, it should be apparent to both parties that it is necessary in these circumstances to make notes as to what is said and what is thought to have been agreed at the time, and to send a letter to the other parties setting out those matters as soon as practicable after the discussions as a record and as a check on what has been agreed or represented. This gives the other party an opportunity to disagree with there has been a misunderstanding.

27. The letter from the Responsible Authority of the 14 September 2001 goes on to say:-

A preliminary review of the amended plans has been undertaken and the following matters are listed for your information:

* Clarification of elevations and car parking for Dwelling 1 is required.

* Proposed management of change in level between Dwelling 1 and 2 is unclear.

* Steps appurtenant to Dwelling 1 are not shown on site plan.

28. In my opinion this aspect of the letter is unsatisfactory in itself and unsatisfactory in that this response to the plan was made four months after it was lodged. Mr Arborea claims to have been pressing for a decision. Some of the dot points above suggest that the plans are unclear and require clarification, see dot points 1, 4 and 6. If those things are unclear attention to that deficiency should have been drawn long before the expiry of four months. Furthermore, it does not help to say that plans are generally considered substandard and lacking in sufficient detail without being particular about what the deficiencies are.

29. Mr Arborea claims to be puzzled by dot points 2 and 7 because the height of the front dwelling and the driveway are similar to those in the endorsed plans. Mr Nelthorpe suggested that the endorsed plans contain a greater bulge in the landscaping bed along the southern boundary so as to insert more of a curve in the driveway than is shown on the May 2001 plans. This seems to me to be a little disingenuous. There is the same, or more space available and this detail is capable of very simple rectification.

30. Dot points 5 and 6 concern steps and decking. Mr Arborea claims that there is no decking, but on examination of the plans I find them to be unclear and ambiguous. There are representations which I think the Responsible Authority was justified in regarding as showing a first floor deck along the northern side of Unit 1. I think it is true that the plans are rather sketchy in some respects and that this is an example of them being ambiguous and unclear. However, attention drawn to this in a timely way could have led to rectification rather than mere dismissal four months later.

31. The last paragraph of the letter of the 14 September concerns a suggestion that a third dwelling might be accommodated on the allotment. I agree with the view adopted by the Responsible Authority that, if Mr Arborea wishes to pursue such an idea, he needs to make application for a permit with plans showing the three units.

32. Mr Arborea clearly feels greatly aggrieved at the way the Responsible Authority has handled this matter. Whilst I think he has some justification for grievance, on the other hand he has also contributed to the difficulties by presenting rather inadequate plans, and he has sought to rely on what he understands to be indications given to him at the office of this Tribunal and at the office of the Responsible Authority without informing himself as to the matters concerned and taking responsibility for his own actions. If he wishes to act for himself, as he quite entitled to do, he does need to inform himself about relevant matters, and not afterwards complain if he has taken the wrong course. He may be wiser to seek professional advice.

33. His response to the situation that confronted him upon receipt of the letter of the 14 September 2001 was completely misconceived. He might have applied for a new permit for two or three units, starting the process again from the beginning. That may be the best course to follow, having regard to the complications that have arisen so far in relation to the existing permit. However, as to that suggestion, he declares "it will never happen". That is a matter for himself.

34. Alternatively he might have considered improving the plans to satisfy the complaints of the Responsible Authority in relation to them and/or to commence an application to this Tribunal under s. 149 PE Act. In any event, no satisfactory solution will be achieved until proper, clear and unambiguous plans are produced.

35. The course he did follow was to apply to this Tribunal under s. 79 PE Act for a review of the failure of the Responsible Authority to grant a permit within the prescribed time. The prescribed time is 60 days. If a valid permit application is lodged with the Responsible Authority, the Applicant can apply to this Tribunal for a review of its failure to grant a permit after 60 days have elapsed provided that any delays in the running of the 60 days time limit, for example in relation to the giving of notice of the application or in relation to a request under s. 54 PE Act for further information in relation to the application, are taken into consideration.

36. The Tribunal can provide a remedy in those circumstances. It can consider the application and, if it thinks appropriate, grant a permit with or without conditions. The trouble here is that there is no permit application that has been lodged with the Responsible Authority in relation to which the Responsible Authority has failed to grant a permit after 60 days. The only permit application it has received was the one that gave rise to the existing permit granted in 1999. It granted a permit on that application. There is no other. The current application under s. 79 PE Act is therefore invalid and I propose to dismiss it on that basis.

37. Of course I could have done this in a couple of paragraphs at the beginning of these reasons, without going through the history of the matter and explaining the situation in terms of the legislation. I have gone to all this extra trouble with a view to being helpful to Mr Arborea and to the Responsible Authority. I trust that my efforts in this respect might assist them in dealing further with this matter, or making a new application as might be thought appropriate. I emphasise that, in this respect, I am not purporting to give legal advice to Mr Arborea as to how he should proceed. I have offered some suggestions that he might like to consider, and pointed to some complications and difficulties. However the decision as to what further steps he should take is for him to make on his own responsibility, guided if he thinks appropriate, by professional advice for example from an experienced town planner or lawyer experienced in town planning.