B Marsh Nominees Pty Ltd v City of Moonee Valley [2004] VSC 237

5. By application dated 15 April 2003 the plaintiff sought a permit to subdivide an existing allotment in 17 Beaver Street, Essendon into two lots. Notice was given of the application and a number of objections were received to it. After considering the application, the objections and a report from council officers the first defendant ("the Council") refused the application on the following grounds:

"1 The proposed subdivision is contrary to the established subdivision pattern of the area and is contrary to Clause 56.01-1 of the Moonee Valley Planning Scheme. 2 The proposed subdivision and building envelopes are not consistent with the existing or preferred neighbourhood character of the area and fails to satisfy the Residential Design Provision of Clauses 22.06.10 and 56.02-1 of the Moonee Valley Planning Scheme. 3 The proposal will adversely affect the amenity of the area and will have detrimental off-site impacts to adjoining properties. 4 The proposal fails to satisfy the relevant provisions of the State and Local Planning Policy Frameworks, the strategic vision for residential development contained at Clauses 21.03, 22.06.10 and 22.06-17, the objectives of Clause 56 and the relevant decisions (sic) guidelines contained at Clauses 32.01-4 and 65.01 of the Moonee Valley Planning Scheme."

9. The officer's reports to Council had recommended the grant of a permit but did so subject to conditions which relevantly included the following:

"1. Before the Plan of Subdivision is certified, three copies of amended plans must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and be generally in accordance with the advertised plans, but with the proposed building envelope plans on Sheet A3 modified as follows:

a) The first floor building envelope modified to commence 10.7 metres from the site frontage with the ground level envelope retained at 7.7 metres from the frontage.

b) Both building envelopes setback at least 9m from the eastern (rear) boundary to ensure over 90 square metres private open space for each dwelling.

c) Both building envelopes at first floor level setback a minimum of 15 metres from the eastern (rear) boundary.

d) The ground floor building envelope for lot 1 setback 1 metre from the northern boundary."

17. The plaintiff appealed to the Victorian Civil and Administrative Tribunal ("the Tribunal") against the refusal of permit and at the hearing presented its case on the basis that it would accept proposed conditions 1(a) and (b) as set out in the officer's report but would not accept 1(c) and (d).

20. The Tribunal dismissed the appeal and gave the following reasons for its decision.

"REASONS FOR DECISION 7 The proposal is for the subdivision of a good sized vacant allotment into two equal parcels, each with street frontage and building envelopes covering overall height and setbacks of future building on each lot. 8 This form or timing of subdivision without knowing the future building proposals is not uncommon, however even though building envelopes are provided, it is a dual occupancy type development and offers much uncertainty to the abutting neighbours. 9 In this case, the Responsible Authority and the objectors believe the envelopes are too large and uncertain in that they could allow a very large bulky pair as one building with long two-storey side walls. 10 The Tribunal has studied the submissions and photographs including the nature of development along Beaver Street and is of the opinion that the building envelopes are not a sufficient control for future development. 11. It is true that a large two-storey single dwelling could be built as of right on the land now, but with subdivision, the bulk with limited side offsets would produce an unacceptable development on this streetscape and for abutting property owners. 12. The subdivision should be accompanied by development plans to be assessed and approved at the same time. 13 There is no doubt the land is suitable for subdivision and that two dwellings can be built thereon. It is the form and this must be assessed in the usual planning sequence (sic), where residents can support or object to the proposal. 14 The request is disallowed and no permit for subdivision shall issue."

24. The plaintiff now appeals on three grounds which seek to agitate the same fundamental concern in different ways. The core of the plaintiff's case is the proposition that the Tribunal dismissed the appeal because the plaintiff had not adopted what the Tribunal regarded as the appropriate procedure and had sought a permit for subdivision alone rather than a permit for a dual occupancy development prior to or in conjunction with subdivision. In turn it is submitted that it was not entitled to dismiss the appeal on this basis.

27. The critical controls under the Moonee Valley Planning Scheme are as follows.

(a) Clause 32.01-2 provides that within a Residential 1 Zone (being the relevant zone)

* a permit is required to subdivide land

* a subdivision must meet the requirements of cl.56.

(b) Clause 56 has the following purposes:

"To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies. To encourage subdivisions that provide a wide range of lot size, are cost-effective and meet community standards for health and amenity. To provide safe, environmentally sustainable and livable neighbourhoods. To encourage subdivision design that:

* Identifies and appropriately responds to site opportunities and constraints.

* Respects the existing neighbourhood character or achieves a preferred neighbourhood character for the area.

* Gives new communities a sense of place and identity.

* Provides safe and convenient access to a range of physical and community infrastructure.

(d) Clause 56.06 provides standards with respect to lot size and orientation. Clause 56.06-4 states in part:

"Lots of between 300 square metres and 500 square metres should:

* Contain a building envelope that is consistent with a development of the lot approved under this scheme, or

* If no development of the lot has been approved under this scheme, contain a building envelope and be able to contain a rectangle measuring 10 metres by 15 metres or 9 metres by 15 metres if a boundary wall is nominated as part of the building envelope."

(f) Clause 56.07-1 provides for streetscape objectives including:

"To provide attractive streetscapes that contribute to the creation and enhancement of neighbourhood character and amenity."

"Before deciding on an application to subdivide land, the responsible authority must also consider, as appropriate:

* The existing use and possible future development of the land and nearby land.

* The area and dimensions of each lot in the subdivision.

59. The above provisions sit within a policy framework elaborated in the planning scheme. This framework was not referred to by the Tribunal in its reasons and it is also unnecessary for my purposes to elaborate it save to record that:

(a) Both State and local policy emphasise the significance of the need for urban consolidation; and

(b) Both State and local policy emphasise the need for appropriate development to respect neighbourhood character.

65. The proposed plan of subdivision did not strictly comply with the dimensions provided for in standard C21 in that the proposed building envelopes had a minimum width of 8.88 metres rather than 9 metres. This deficiency was not referred to in the Tribunal's decision and in the circumstances of the case I infer that it was not regarded as material.

68. Mr Wren submitted that the Tribunal's decision was that in effect the applicant "must come back with a development plan". Although this was the Tribunal's ultimate conclusion I am not satisfied that its reasons can be reduced to this proposition.

71. The Council case was put to the Tribunal by way of submissions which contained two critical propositions (which were also supported by objectors):

(a) It was submitted that the proposed building envelopes were inadequate to protect the amenity of neighbouring residential properties and to provide an attractive streetscape ("the submission as to bulk"); and

(b) It was submitted that this was a case of the type identified in the decision of another division of the Tribunal in _Papac & anr v Turne_r & anr[1] with respect to a proposed two lot subdivision in Aberfeldie, in which it was held that a subdivision with building envelopes and other restrictions was not (in the circumstances of the case) the appropriate approach to the redevelopment of the subject land for the purpose of two dwellings ("the submission as to approval process".

77. In my view the Tribunal's decision demonstrates that it accepted both critical submissions although whether each was accepted independently of the other is a matter to which I shall return. The Tribunal accepted the submission as to bulk in terms which I will repeat for convenience as follows:

"9. In this case, the Responsible Authority and the objectors believe the envelopes are too large and uncertain in that they could allow a very large bulky pair as one building with long two-storey side walls. 10. The Tribunal has studied the submissions and photographs including the nature of development along Beaver Street and is of the opinion that the building envelopes are not a sufficient control for future development. 11. It is true that a large two storey single dwelling could be built as of right on the land now, but with subdivision, the bulk with limited side offsets would produce an unacceptable development on this streetscape and for abutting property owners."

81. Reference to the planning scheme provisions makes clear that because cl.56 requires that a subdivision should meet all of both:

It follows that a subdivision may not be appropriate in terms of the objectives of the clause despite compliance with the standards. Likewise it is implicit in the general considerations set out at cl.65.02 that an application for subdivision may not be appropriate (despite compliance with the standards) having regard to factors such as "the existing use and probable future development of the land and nearby land".

87. In substance the Tribunal has found that the proposed building envelopes would not ensure an adequate outcome either in terms of streetscape or amenity impacts on abutting land. Both considerations fall squarely within objectives identified in cl.56.

90. Mr Wren placed substantial weight in argument upon the decision of Balmford J in Charnley Glen v Boroondarra City Council[2]. In that case her Honour considered a decision by the Tribunal to allow an application for review and reject an application for a two lot subdivision. Her Honour's reasons were formulated by reference to the particular circumstances in issue in that case but in the course of her decision she stated:

"A subdivision into two lots of over 300 hundred square metres, with the express intention of building a house on each lot, is permitted by the planning scheme. Given the terms of the scheme, it must be assumed that the Minister and the responsible authority have taken the view that in fact, `such devices as building envelopes and conditions and 173 agreements' are sufficient to protect residential amenity to the extent considered appropriate by those authorities"[3].

94. The planning scheme provisions with which I am concerned are successors to those with which her Honour was concerned. It remains the situation that for land such as that here in issue a subdivision into two lots of over 300 square metres with the express intention of building a house on each lot is permitted by the planning scheme. Nevertheless having regard to the "requirement" that properties "should" meet the objectives of cl.56 and the general considerations which the Responsible Authority must take into account pursuant to cl.65.02 the better view is that whatever may have previously been the situation the current provisions do not justify the conclusion that "it must be assumed" that such devices as building envelopes and conditions and 173 Agreements "are sufficient to protect residential amenity to the extent considered appropriate by those authorises". The relevant provisions of cl.56 may be said to implicitly identify the utilisation of building envelopes as the primary mechanism by which building bulk is intended to be controlled following a subdivision of the type in issue. They do not however imply that building envelope controls alone or in conjunction with other mechanisms will necessarily enable building bulk issues to be resolved with respect to every subdivision proposal providing for lots with an area between 300 and 500m2 created with the potential for building a house on each lot.

97. The reasons stated by the Tribunal for concluding the proposed building envelopes in the present case were too bulky, are far from elaborate, but they record the opinion of the Tribunal on a matter which ultimately called for a global judgment having regard to the particular circumstances of the case. Proper reasons would normally involve the identification of the elements significant to the opinion formed. Nevertheless matters such as the effect of potential building bulk upon a streetscape must ultimately involve a degree of intuitive synthesis and personal judgment.

100. In the present case, the grounds of appeal do not attack the adequacy of the reasons as such but assert that such reasons demonstrate errors of law. In this regard it cannot be said on the material before me that the judgment made by the Tribunal as to bulk was not open to it. Nor was it submitted to the Court that it should be impugned on this basis.

103. Mr Wren's submission was rather that the Tribunal's conclusion with respect to the submission as to bulk was infected by its conclusion as to the submission as to approval process. Once again I shall for convenience repeat the Tribunal's reasons with respect to the submission as to approval process.

"12. The subdivision should be accompanied by development plans to be assessed and approved at the same time. 13. There is no doubt the land is suitable for subdivision and that two dwellings can be built thereon. It is the form and this must be assessed in the usual planning sequence (sic), where residents can support or object to the proposal."

107. It can be seen that these reasons amount to no more than the recitation of conclusions. They do not contain any discussion of the site or environs which articulates a reason or reasons why the building envelope mechanism expressly contemplated by the standards contained in cl.56 is not capable of achieving the objectives of cl.56 and a satisfactory outcome in the present case.

110. The reference to "the usual planning sequence where residents can support or object to the proposal" inverts the provisions of the scheme which clearly contemplate that the usual planning sequence will allow the grant of permission for a two lot subdivision with lots of between 300 and 500m2 subject to the specification of appropriate building envelopes.

113. Whilst it is my view that circumstances may justify departure from the approval process directly contemplated by cl.56 (namely subdivision approval independently of any further built form development approval) nevertheless the Tribunal's decision does not identify the existence of such circumstances in the present case.[4]

116. Further the Tribunal's decision contains no reasons for rejecting the arguments of the appellant that the appeal site was an appropriate one for subdivision subject to the specification of appropriate building envelopes. Significant arguments which were not analysed included:

(a) The argument which proceeded by reference to the officer's report which recommended subdivision subject to the specification of appropriate building envelopes;

(b) The argument which materially distinguished the factual circumstances in the case of Papac v Turner upon which counsel relied (a case in which a site of comparable dimensions to that here under consideration was subject to a fall of approximately 11 metres across it); and

(c) The argument which proceeded by reference to the characterisation of the streetscape of Beaver Street in terms favourable to the applicant in another decision of the Tribunal relating to a nearby site.

122. Failure to have regard to a relevant consideration will constitute an error of law[5].

125. Further the failure to refer to relevant considerations in a Tribunal's decision may evidence a failure to have regard to a relevant factor. The relevant authorities are referred to in Charnley Glen. The accepted test is that stated by Sholl J in Yendall v Smith Mitchell & Company Limited[6] as set out by him in Harrison v Mansfield[7]:

"The true principle ... must be, not that everything relevant which a magistrate does not refer to is to be taken to have been overlooked, or on the other hand, that it is to be taken to have been considered, but that, if something which should have been considered is not referred to, and the nature of the decision suggests some error, which may have been due to that matter not having been considered as it should have been, or if the magistrate's observations indicate, on a comparison of what he said with what he did not say, that the matter in question has not been considered as it should have been, the appellate tribunal may properly draw such an inference, and the magistrate will have no cause to complain if it does so."

129. The present case must be considered in the context of the controls and circumstances to which I have referred. The reality of the situation may be thought to be reflected in the written submissions made on behalf of the Council to this Court to the following effect-

"Clearly, the outcome may have been different if, for example, the building envelopes were smaller and therefore would have permitted a more modest built form. They were not."

133. In my view the failure of the Tribunal to refer either to the relevant provisions of cl.56 or the contentions of the appellant as to the adequacy of building envelopes as a mechanism capable of ensuring an adequate outcome, leads to the inescapable inference that the Tribunal did not have any or any proper regard to these matters but gave effect to its view as to the appropriateness of "the usual planning sequence" without due regard to the relevant planning scheme provisions.

136. Accordingly the first ground of appeal is made out namely:

"The Tribunal erred in law when it concluded that the subdivision should be accompanied by development plans to be assessed and approved at the same time."

140. In order to justify an order that the Tribunal's decision be set aside however the plaintiff must establish not only that it can demonstrate an error of law but also that that error is a vitiating error. The classic statement of this principle is that contained in Portland Properties Pty Ltd v Melbourne and Metropolitan Board of Works[8] where Smith J with whom Adam J concurred stated with respect to a forerunner of the Tribunal as follows:

" ... the appellant, in order to succeed in this case, has to demonstrate to the satisfaction of this Court that the Town Planning Appeals Tribunal went wrong in law in arriving at its decision. It would not be enough for the appellant to show that the Tribunal's reasons for its decision are so expressed as to suggest the possibility that the Tribunal proceeded upon a wrong view of the law. This Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law."

144. As I have indicated Mr Wren submitted in substance that the Tribunal's decision on the submission as to bulk should be regarded as infected by its decision on the submission as to approval process. He did so however in terms which postulated that it was a "chicken and egg situation". It could not be conclusively demonstrated that the decision as to the first critical submission as to building bulk was founded on the decision as to the second critical submission as to approval process but it was possible the conclusion on the submission as to bulk resulted from the conclusion on the submission as to approval process.

147. In my view this leaves the appellant in the position where it can do no more than "... suggest the possibility that the Tribunal proceeded upon a wrong view of the law." Although I am satisfied the Tribunal did err with respect to the approval process submission it cannot be demonstrated that its conclusion as to the building bulk submission was other than a response to this issue on the merits. It follows that because this conclusion was of itself sufficient to justify the Tribunal's decision to dismiss the appeal that the error established with respect to the Tribunal's conclusion as to the approval process is not a vitiating error.

150. It is unnecessary to further consider the alternative grounds of appeal. As I have said they seek to agitate in different ways the concern underlying ground 1. For similar reasons however, even if they could be individually sustained (which I do not decide) they could not be said to result in a vitiating error or error of law.

153. For the above reasons the decision of the tribunal must be affirmed.

[2] [2000] VSC 340; (2000) 110 LGERA 52

[4] cf the decision in the matter of Papac v Turner which specifies the particular circumstances of difficulty there in issue.

[5] Kentucky Fried Chicken Pty Ltd v Gantidis & anor [1979] HCA 20; (1979) 140 CLR 675 per Barwick CJ at 679-80; Body Corporate Strata Plan No 4166 & Ors v Stirling Properties Ltd (No. 2) [1984] VicRp 73; [1984] VR 903 at 913-914; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, per Mason J at 39-42.

[6] [1953] VicLawRp 53; [1953] VLR 369 at 379

[7] [1953] VicLawRp 60; [1953] VLR 399 at 404