Bayside CC v Brighton Secondary College & Synthi-Grass Aust Pty Ltd [2000] VCAT 2432

(a) Condition 2 is amended by the addition of the following in point (b) as follows:

17 car spaces shown abutting the driveway leading from the Marriage Road into the site may be deleted.

(b) Condition 2 is amended by the addition of points (h) and (i) as follows:

(h) the existing basketball court to the east of the sports field to be identified on the plans.

(i) A 2.6 metre high masonary rebound wall along or adjacent to the western edge of the basketball court, between the basketball court and the sports field. A coating to deaden sound should form part of the western face of the wall, to the satisfaction of the Responsible Authority and the form and extent of that coating should be specified on the plans.

An existing crossing on Marriage Road, to the north-west corner of the land, may be retained until the portable classrooms within the School grounds are removed. The crossover and driveway must only be used in association with the removal of the classrooms from the land. The driveway is to be secured to prevent vehicle access at other times, with a gate or other barrier that complements the form of fencing along Marriage Road, to the satisfaction of the Responsible Authority.

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Mr Damon Jones, solicitor of the firm of Minter Ellison, solicitors, appeared for the Responsible Authority. He presented written and oral submissions.

Ms Susan Brennan, barrister, appeared on the instructions of the firm of Clayton Utz, solicitors for the Brighton Secondary College.

She presented written and oral submissions and called four witnesses. They were Julie Anne Podbury, Principal of Brighton Secondary College, Mr Shayne Kenneth Linke, town planner, Dr Robert Samuel Hugh Richardson, acoustic consultant and Ian MacKintosh, lighting consultant. Each of these witnesses gave oral evidence. Ms Podbury spoke to a written statement of evidence and each of the other three witnesses presented a written report.

Mr W J Foreman, a nearby resident, appeared on his own behalf and as representing a Residents Association known as "E.B. BANDAID Inc.". He presented written and oral submissions.

A written submission of Mr John Thompson, another nearby resident, was received and taken into consideration.

Various plans, photographs and other documents were tendered in evidence. The submissions and evidence in documentary form have been retained on the file of the Tribunal.

Application under s 114 of the Planning and Environment Act 1987 (PE Act) for an enforcement order.

Request under s 87 PE Act for amendment of a permit.

Amendment of Permit 99/4617 issued by the Responsible Authority on the 21 December 1999 at the direction of the Tribunal in its determination of the case of E.B. BANDAID Inc. & Ors v Bayside City Council and Brighton Secondary College being Application for Review 1999/72086.

Carrying out works not in accordance with Permit 99/4617 and endorsed plans thereof.

1. These cases were heard on the 3 and 5 October 2000. At the conclusion of the hearing we announced our decision and gave oral reasons. The following is a summary and not a verbatim account of the reasons given.

2. These cases arise in relation to the Brighton Secondary College. The campus of that school is located on land bounded on its north side by Marriage Road, and on the south side by Dendy Street. It has frontages to each of these streets. The land is rectangular. Its eastern and western boundaries are occupied by the back fences of residential properties fronting to other streets to the east and west. Buildings on the campus are located, generally on the northern half of the land and concentrated generally in the north eastern segment of the site. The property is regarded as fronting its northern boundary to the southern side of Marriage Street. The open space and playing areas of the grounds are generally on the southern half of the property. There has traditionally been a sports oval suitable for football and cricket located on this southern half adjacent to the Dendy Street frontage. There are trees located along that boundary, and further street trees in Dendy Street.

3. Opposite, on the southern side of Dendy Street, the frontage is largely occupied with the Brighton Golf Course, although there are several houses fronting the south side of Dendy Street opposite the eastern portion of the School's frontage to that street.

4. The College has sought to redevelop the sports oval area with a rectangular synthetic grass sports field suitable for hockey, but also to be marked out for tennis and other games.

5. A permit would not be required for a playing field that was merely ancillary to the school. However, the Brighton Secondary College apparently could not afford to construct such a development from its own resources and has sought to do so in association with several hockey clubs, and with a view to it being used by these associated organisations, as well as the school. As such the proposal would be to use the land as a minor sports ground under the Planning Scheme in force until recently. That earlier planning scheme was in operation when each of these current proceedings were commenced.

6. A planning permit was required for such use, but not for the development itself. An application was made, supported by plans, for the development that would be necessary to enable the land to be used for the intended purpose. That gave rise to the case of E.B. BANDAID Inc. & Ors v Bayside CC and Brighton Secondary College, an objector's application for review 1999/72086 heard by one of us (Ms Baird) late in 1999. The determination of that application for review was to disallow it and grant a permit subject to conditions. A permit 1999/4617 was issued by the Responsible Authority on the 21 December 1999 pursuant to the Tribunal's determination.

7. Work has proceeded on the construction of the hockey field and it is, at present, in a partly constructed state. Since the grant of the permit two misfortunes have befallen the College. One was a fire in about April 2000 in which approximately a third of the classroom accommodation of the College was destroyed. It has been necessary to import a number of portable classrooms onto the site to enable the school to continue operating. These portable classrooms have been located on an area which is normally open space available to students of the school during recess, lunchtime and other times. There has been a consequent loss of open space available for these purposes.

8. The other misfortune is that, in excavating for the purpose of constructing the synthetics sports field, difficult underground obstructions were encountered. The site was once a rubbish tip, and car bodies and other large items were found not far below the surface when excavations were commenced. Removing some of these items and the consequent need to fill and reinstate the land has added notably to the cost of the project. In fact, according to the evidence given to us, to excavate sufficiently to provide a playing field at a level of 21.8m in accordance with Australian Height Datum (AHD), would require a huge amount of money, well beyond the financial capacity of the College and the participating hockey playing organisations. The College consequently wishes to construct the hockey field with a surface rising, at its highest point, to a level in the order of 700mm above 21.8 AHD. Furthermore, it had originally been anticipated that the synthetic playing surface would be level. However, the contractors engaged to install the facility have subsequently indicated that a playing surface of this sort, although to the naked eye it may appear as level, requires a degree of fall to assist drainage and run-off. The current proposal is to have a slight ridge running east to west through the centre of the field which would shed the water to north and south, but with the whole arrangement also falling slightly from east to west with run-off to be caught in a drain to be constructed around the edge of the playing field.

9. Plans were endorsed in relation to the permit. A copy of these plans became exhibit B1. The endorsed plans are based on application plans considered by the Responsible Authority and the Tribunal in relation to the original permit application. The application plans did not show a level for the hockey field in terms of AHD. However, they did show a relative level in relation to a so-called "benchmark" being the top of a drainage pit to the north of the playing areas. This drainage pit was given an arbitrary datum of 10.00. The level of the playing field had a specified level in relation to that arbitrary height datum. By determining the actual AHD level of the arbitrary height datum point it was thus possible to calculate a proposed level for the playing field. It is to be remembered that it was assumed, at that time, that the playing field would be level. By that means a level of 21.8 AHD could be determined for the playing surface. Such a level does appear on the endorsed plan, although it is referred to as "RL", rather than "AHD".

10. In the course of construction a complaint was made that the field was not being constructed in accordance with the plans, so far as the height of the playing surface is concerned. It appears, from the evidence before us, that Mr Thomson raised this complaint on the basis of his understanding that the playing surface would be below natural ground level. In fact natural ground level is not flat and his understanding that the surface would be below it appears to be based, at least to some extent, on a partial misunderstanding. It appears that he derived his understanding from an examination of a section drawing (D:D) crossing the northern edge of the field towards its western end. His observations in relation to that are not applicable to, for example, the area opposite the vicinity of his house on the southern edge near the eastern end.

11. However, his concern gave rise to a complaint and subsequent investigations.

12. The College maintained that to construct the field with a flat surface at 21.8, which appears to be the requirement of endorsed plans, although physically possible, is impractical because of the lack of run-off and because of the prohibitive costs.

13. The proceedings before us were both commenced at the same time. The Responsible Authority has applied for an enforcement order requiring compliance with the endorsed plans. The College has requested an amendment to the permit and the endorsed plans. The alterations that the College seeks are depicted in new plans which were marked as exhibit B2. They show several alterations as compared with the endorsed plans.

14. Three of these alterations are said to arise from the material change of circumstances that has arisen since the issue of the permit constituted by the fire and the subsequent need to being portable classrooms onto the land.

15. The first of these concerns the western vehicle crossing onto Marriage Road. The endorsed plans show a realignment of the original crossing to place it opposite the intersection with Parker Street. The original crossing is a little further east of that location. This, according to the endorsed plans, is intended to be a relocation of the crossing and driveway, with the original crossing and driveway to be removed.

16. The School is happy for this to occur eventually, but the situation has been complicated by the introduction of the portable classrooms. The Education Department has indicated that the original crossing is to be maintained until the portable classrooms are removed. Although some of these classrooms are anticipated to be removed in one to two years, others are expected to remain for several years.

17. We are of the view that the fire is a material change in circumstance, so far as this crossing is concerned. We think it appropriate to allow an amendment by inserting a condition permitting the retention of the original crossing and driveway until the portable classrooms are removed, but on the basis that the fence and gate in this locality will be disguised to appear like a fence and to disguise the existence of the crossing and furthermore that the old crossing will not be used, except for the removal of portable classrooms and that the old crossing and driveway will be removed and made good when the classrooms are ultimately taken away.

18. The next change sought by the College is the deletion of a driveway and 17 car parking spaces immediately to the south and west of the main "L" shaped block of school buildings. This area has, in fact, already been reconstructed to facilitate its use as open space for the benefit of pupils. This is called for because of the loss of space due to the introduction of the portable classrooms.

19. Again we view this as resulting from the material change of circumstances constituted by the fire. We also think that it is appropriate, and furthermore, that it is not necessary to restore the driveway or the 17 car parking spaces, even when the portable classrooms are removed. That is because there is, in our view, ample other parking in the area, both on the school property and in nearby streets. The school has frontages to Marriage Road and Dendy Road, and the Brighton Golf Course has a substantial frontage to Dendy Street. None of these frontages are residential and all of them are reasonably available for on-street parking. They are in addition to other parking onsite. Furthermore, the residential development in the area is of a period and style where houses are provided with their own off-street parking.

20. The third aspect, said to relate to the material change of circumstance, concerns a basketball court located near the southern or Dendy Street frontage and adjacent to the southern section of the eastern edge of the proposed sports field. There is some lack of clarity about the original proposal in relation to this court. The Tribunal, in determining the previous application for review, understood that the court was to be retained, but that acoustic mounding to be constructed on three sides of the proposed sports field, would extend between the court and the playing field. Ms Brennan, on behalf of the College suggested that it had originally been intended to do away with the basketball court and to extend the mounding onto the western end of the court. She suggested however that there was now a need to retain the court because of the lack of open space facilities due to the fire. If there is some uncertainty on the endorsed plans as to this aspect, the B2 plans indicate that the sports field and the basketball court are to be separated by a 2.6m high masonry "rebound" wall. This wall will provide acoustic screening in a location where space for mounding is not available. It has been suggested that a sound deadening rubber coating should be erected on the hockey field side of this wall. We regard this arrangement as appropriate, providing that the design and colouring of the wall are to the satisfaction of the Responsible Authority.

21. So far as the proposed changes to the design of the sports field are concerned, that is to say, it having a slightly slopped surface with falls to north and south and overall from east and west, and with its highest point in the centre of its eastern boundary at 700mm above 21.8 AHD, we indicated that we regarded them as satisfactory from the point of view of its planning merits. They are shown on the B2 plan. We regarded them as satisfactory notwithstanding the increased height at the highest point as shown on the B2 plan.

22. The B2 plan envisages a higher acoustic mounding on the western, northern and the eastern side of the ground (apart from in the part of the eastern side served by the acoustic rebound masonry wall). The proposal is for the acoustic mounding to have a level top, all the way round, at 3.1m above the highest point on the surface of the playing field. Such a mound, according to the expert evidence (which we accept) will have a greater acoustic screening affect than the acoustic mounding depicted in the approved endorsed plans and, indeed, approved by the previous determination of the Tribunal. If we regarded the height of the mounding as critical, we could require calculations to be carried out to determine what reduced height for the mounding would achieve the same result as that previously approved. However, having regard to the context in which the mounding is to be constructed, we do not think that the difference in height is critical, or even perceptible. The mounding will rise gently on its outer sides (away from the playing field) and will be grassed. The sports field is set in the midst of a large open area well set back from the rear boundaries of the houses to the east and west and from school buildings and other facilities to the north. It is relatively close to Dendy Street, but most of the land opposite is occupied by the golf club, and that which is not is separated by the width of that tree lined street. Thus mounding to the height of 3.1m above the highest point on the playing surface is quite reasonable and acceptable. Such an increase in height might be a matter of considerable concern in another context, but it is not here.

23. Something similar can be said in relation to the masonry rebound wall. A wall of 2.6m in height might be rather high in some residential contexts, but here, well set back from the nearest residential boundaries to the east, and in the context generally, it is quite acceptable.

24. On the basis of all this we concluded that the new design for the playing field is more acceptable, from an acoustic point of view, than the design originally approved, and, although the surface level and mound levels are higher, nevertheless the new proposal is quite acceptable from a visual point of view.

25. The other possible ramification of the alterations related to lighting. Both proposals involve the erection of lighting to eliminate the ground to enable play after dark. The revised version of the proposal occasions minor elevation to the height of some of the supporting structures. However, expert evidence was given in relation to lighting, lighting spill and illumination considerations at the earlier review hearing and the original proposal was accepted as appropriate. The calculations upon which the expert evidence leading to that earlier conclusion was based were predicated on the light sources being at the very top of the lighting structures. In fact the centre of the light sources is to be 0.300m below that level. This distance, together with appropriate tolerances, mean that the difference between the two proposals is minimal and completely insignificant. We accept the expert evidence given to this effect. The illumination levels will be within the levels specified in the approved permit (condition 5).

26. Thus we concluded that, although the original proposal represented by the endorsed plans were quite satisfactory and acceptable, so too is the revised proposal as set out on the B2 plans.

27. We made a passing observation in relation to the lack of acoustic screening on the southern or Dendy Street frontage. The evidence, accepted by the Tribunal in relation to the original proposal, was that no acoustic screening was required on this side of the field. That continues to be the situation in relation to the revised proposal. The expert acoustic evidence bears out this proposition.

28. There is one other matter that calls for comment. The Responsible Authority made reference to the removal of two trees along the Dendy Street frontage in the vicinity of the southern side of the proposed playing field. One of these, towards the centre of the southern side of the playing field, does not raise a problem inasmuch as the Responsible Authority has approved an amendment to the endorsed plan to allow its removal.

29. However, the Responsible Authority did complain of the removal of another tree in the vicinity of the pedestrian entry and gate through the southern frontage of the land between the basketball court and the eastern end of the playing field. Ms Podbury explained that this tree was damaged in the course of some necessary plumbing works carried out in that vicinity. Of course, if no permit had been sought for a minor sport ground, no permit would be required for the removal of that damaged tree. It has, in fact, been removed. However, the permit does impose a restraint on the removal of the tree. The condition concerned allows the Responsible Authority to give its consent for such a removal. However, the Responsible Authority apparently declined to give that consent. The immediate remedy for the College would be to apply for a review of that decision under s 149 PE Act.

30. However, the tree has now gone. It cannot be preserved, whatever the merits of its removal might be. In the circumstances the only sensible remedy is to replace it with a suitable semi-matured tree to the satisfaction of the Responsible Authority. The Responsible Authority seeks an enforcement order to that affect. The College consents to this arrangement and we proposed to adopt it.

31. So far as the new design for the sports field is concerned, although we regard it as acceptable, so far as the planning merits are concerned, we explained that we did not consider that we were able to amend the permit or the endorsed plans to provide for the new design pursuant to the request made for such amendments under s 87 PE Act. The reason is that we must be satisfied of the existence of a ground under s 87(1) PE Act. The grounds relied on in this case are a material mistake in relation to the grant of a permit and/or a material change of circumstances since the grant of a permit. The College has sought to rely on the fire as a material change of circumstance. We accept that it is, so far as the crossing and the elimination of the driveway and parking spaces are concerned, but it does not really relate to the redesign of the hockey field. The College's private financial circumstances, or a decision by the College to change the style of construction are not really relevant material changes in circumstances, and neither is the discovery of car bodies, etc. disguised below the surface of the old sports oval. The existence of those problems may not have been appreciated, but they were there throughout, and their discovery is not regarded as a material change in circumstances.

32. Because we consider the B2 version of the proposal to be acceptable, we think it appropriate that the permit and plans allowing the development should be put in order to allow development in that form, if such an arrangement can legally be arrived at. We note that, since the permit was granted, a new planning scheme has come into operation. Pursuant to this planning scheme permission would now be required for the development involved.

33. We do not see it as our function to advise the College on how it might "mend its hand" in relation to bringing the permit and endorsed plans to correspond with the B2 proposal. We did mention some possibilities, leaving it to the College to take responsibility for deciding which of the possibilities it would pursue. One appears to be to seek secondary consent under condition 2 of the existing permit for amendment to the plans, and to apply to the Tribunal under s 149 PE Act for a review of any refusal considered to be unreasonable. We noted, having made our views on the merits quite clear, that we would think it an appropriate circumstance to take into account on any question of costs if there should be a perverse refusal of secondary consent. Another possibility might be to seek amendment pursuant to s 63(3) or s 72 PE Act. If these various possibilities should fail, it appears that, at any rate, the matter could be put right by the obtaining of a new permit on a new permit application.

34. In the meantime the College wants to get on with completing the partly constructed sports field. In view of our decision as to the merits, we think it undesirable and unjustified that they should be obstructed from doing so. In this connection we indicated that we thought it desirable to make an enforcement order requiring compliance, not with the existing endorsed plan, as would usually be ordered, but, in a special circumstances of this case, requiring compliance with the B2 plan. In this connection we referred to s 119 PE Act which enabled the Tribunal to make an enforcement order directing the person against whom it is made to do one or more of the things specified in s 119(b). In s 119(b)(iv) the Tribunal can, amongst other things, direct the doing of specified things within a specified period to restore the land, as near as practicable, to its condition immediately before the development started "or to any other condition specified in the order" or any other condition to the satisfaction of the Responsible Authority" or other person or body specified in the order. We therefore propose to make an order requiring the land to be restored to a condition specified in our order namely to accord with the plan being exhibit B2.

35. After we announced our decision and gave our reasons, the College sought an order for costs against the Responsible Authority. In doing so it relied on the various complaints raised against the Responsible Authority in relation to its conduct of these proceedings.

36. The Responsible Authority, for its part, did not seek an order for costs against the College, but submitted that each party should bear its own costs.

37. The ordinary rule before this Tribunal is that parties must bear their own costs. There is a power to make an order for costs where the Tribunal considers that to be justified in the interests of justice and in accordance with s 109 of the Victorian Civil and Administrative Tribunal Act 1998. In this case a difficult situation arose in which something had to be done to clarify and resolve the situation. The Responsible Authority had a public duty to investigate the complaint it received and it was quite reasonable for it to seek some suitable resolution of the problems involved. It was not the fault of the Responsible Authority, or of the Objectors, that problems arose from the problems buried under the playing field or the failure of the College to discover them or to understand that its proposal involved other than a flat playing surface. Both the proceedings before us have been partly successful and partly unsuccessful, and, in any event, an important and useful result has been achieved in discovering the Tribunal's view about the merits of the proposed means of dealing with the problems that have arisen. In all the circumstances it is not appropriate to depart from the ordinary rule that parties must bear their own costs.

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