Victorian Civil and Administrative Tribunal|2007-09-26

Begonia Pty Ltd v Frankston CC (No. 2) [2007] VCAT 1718 (26 September 2007)

Planning and Environment List; planning; amendment of approved plans; "permit"; does "permit" include plans, specifications etc. approved under the permit or only the permit in the terms in which it was actually granted by the authority granting the permit? When does "permit" have an extended artificial meaning to include documents approved under it, and when does it not have that extended meaning? "Secondary consent"; is secondary consent limited to inconsequential matters?

Sections 62(3), 71, 72, 73, 87, 149 and 173 Planning and Environment 1987

Begonia Pty Ltd v. Frankston CC and others [2005] VCAT 2500

Grosios v. Monash CC (2003) 15 VPR 65; [2003] VCAT 626

Thompson v. Stonnington CC [2003] VCAT 831

Gant v. Greater Geelong CC [2003] VCAT 2037

MacMillan v. Port Phillip CC [2005] VCAT 1004

Jolin Holdings Pty Ltd v. Moreland CC [2004] VCAT 225

Wellington SC v. Dasani Pty Ltd [2006] VCAT 2185

Koltz v. Port Phillip CC [2005] VCAT 473

APAC Design & Construction v. Whitehorse CC [2006] VCAT 594

Lot 2 on Plan of Subdivision No. 328568P being the land in Certificate of Title Volume 10178 Folio 523.

Irregularly shaped though generally square area of land on the north-west corner of the intersection of Ballarto Road with McCormicks Road with frontages of 201.31 to the north side of Ballarto Road and 208.81 west side of McCormicks Road and having an area of 3.514 hectares.

Begonia Pty Ltd v Frankston CC [2007] VCAT 1718

This request to amend permit 040609 issued on 10 December 2005 is granted and the permit is amended to substitute a new condition 1 for the first condition as it appeared in the permit when first issued and to include a new condition 24A, such revised condition and new condition to be in the following terms:
1. Before the use starts or the development further continues, further amended plans must be submitted to and approved by the responsible authority. Such plans must be drawn to scale with dimensions and three copies must be provided. When approved these further plans will supersede the currently approved plans previously endorsed under this permit whereupon such newly further endorsed plans will be endorsed as evidence of their approval and they will thereby become the endorsed plans in relation to this permit. The plans are to be generally in accordance with the plans marked collectively as exhibit C4 (with individual sheets being C4.1, C4.2, C4.3, and C4.4), at the hearing by the Victorian Civil and Administrative Tribunal of Begonia Pty Ltd v. Frankston CC, proceeding No. P1962/2007 which plans, in the event of any inconsistency, are to prevail over the plans mentioned in the words granting permission in this permit, but modified as follows:
  1. include a landscape plan in accordance with condition 2 of this permit; and
  2. depict a bund, wall or flood obstruction in accordance with condition 24A below.

24A (a) Engineering plans and specifications to provide a bund, wall or other flood obstruction are to be tendered to Melbourne Water for its approval and when approved works in accordance with such plans are to be constructed to the satisfaction of Melbourne Water to provide obstruction to flood waters up to a height of 0.300 metres above the flood level established by Melbourne Water before the supermarket or any buildings protected by such works are occupied and such works are thereafter to be maintained to the satisfaction of the responsible authority and not thereafter modified or removed except with the written consent of Melbourne Water.

(b) Before the occupation of the supermarket or any buildings protected by such works, the owner of the land is to enter an agreement pursuant to s.173 of the Planning and Environment Act 1987 with the Responsible Authority and Melbourne Water which agreement is to bind the owner to covenants to the effect of the provisions set out in part (a) of this condition and that the owner is to bear the costs of preparation and execution of such agreement and that it be registered and endorsed on the titles to the land.

The Responsible Authority is directed pursuant to s.91(1) of the Planning and Environment Act 1987 to amend the said permit in accordance with the above orders.

Mr. Nat Modica, consultant town planner, appeared for the responsible authority.

Mr. Andrew Cameron, barrister, appeared on the instructions of Donaldson and Trimble Solicitors for the applicant company, Begonia Pty Ltd.

Mr. David Reginato of Melbourne Water appeared for that authority.

Various plans and other documents were tendered in evidence and have been retained on the file of the Tribunal.

Request under s.87 of the Planning and Environment Act 1987 for amendment of a permit.

Amendments to permit and or approved plans to achieve consistency with partly constructed buildings and works already erected on the land.

Business 1 Zone and subject to a Development Plan Overlay (schedules 1 and 2) under the Frankston Planning Scheme.

This case concerns a shopping centre constituted by a supermarket and specialty shops at 325 - 385 Ballarto Road, Carrum Downs. Development of the buildings and works involved has commenced and made substantial progress, although it is not yet complete. The project was authorised by Planning Permit 040609 issued by the Responsible Authority on 10 December 2005. That was at the direction of this Tribunal in its determination of Begonia Pty Ltd v Frankston CC and others No. 1[1]. That case was heard by myself sitting with my colleague, Mr Nick Hadjigeorgiou following a hearing on 17 November 2005. Our determination was dated 25 November 2005. The permit was granted subject to 30 conditions. Although there had been contention in the case the matter was ultimately determined by consent pursuant to agreement between the parties.
Although the construction and buildings and works has been purportedly pursuant to the permit and the endorsed plans approved there under, what has been built varies from the plans in certain respects.
Some of these variations are quite minor, but others are more significant although what has been built is generally in accordance with the approved plans. The applicant company, Begonia Pty Ltd, has a need to rectify these discrepancies and regularise its position.

What has been built and how it varies from approved plans?

The partly built supermarket has a larger floor area than that depicted in the approved plans. Apparently it was originally anticipated that it would be a "Bi-Lo" discount supermarket. "Bi-Lo" is a line of discount supermarkets associated with the Coles Myer organisation. That organisation also has a large number of Coles supermarkets which are not of the discount supermarket variety. Pursuant to changed arrangements it is now intended that the supermarket will be a Coles supermarket rather than a Bi-Lo one. This calls for the larger floor area mentioned.
Hand in hand with that goes a reduction in the number of specialty shops as compared with the currently approved plans.
There are other alterations to the position layout and setbacks of some buildings.
There is a significant concern in relation to the floor level of the supermarket, or at least part of it. Melbourne Water is a referral authority and it requires the finished floor level to being not less than 300mm above a specified flood level. That requirement has not been observed and the floor level, or some substantial part of it, has been constructed at a lower level than that required by Melbourne Water. This requires rectification.

How may the discrepancies be rectified? : Flood level

I suppose it would be possible to raise the floor level, even within the partly constructed building. However, that is not the only possible solution. Melbourne Water considers that it would be possible to satisfy its requirements by the implementation of other solutions. One contemplated is to construct a bund, or flood wall, or some physical device to surround the vulnerable floor so as to protect it from flooding by any inundation that exceeds the specified flood level by less than 300mm. Melbourne Water would require an opportunity to check engineering plans and specifications for such works which would be subject to its approval. Then, provided the works were carried out in accordance with plans site approved by Melbourne Water, and provided that they were thereafter maintained and not altered so as to compromise their flood resisting characteristics, Melbourne Water would be satisfied. It would look for a s.173 agreement[2] as a means of ensuring continuing maintenance and retention of the barrier.
That is a solution now agreed upon between Begonia Pty Ltd and Melbourne Water with the responsible authority being willing to be a party to the necessary agreement pursuant to s.173 of Planning and Environment Act 1987 (PE Act).

Melbourne Water has another concern. The main supermarket building is set back from the northern side boundary by 8.42 metres. That is the setback of most of the rear walls of the supermarket building. This setback area was referred to in the course of the hearing has "the hiatus area". The 8.42 setback of the hiatus area is greater than that shown on the currently approved plans.
On the north side of this northern boundary there is a residential zone which is developed and used for residential purposes. A number of residential properties adjoin the northern boundary of the site. One of them, occupying approximately half of the northern boundary in the vicinity of the hiatus area, is a residential lot yet to be developed. The other lots have houses on them.
It was anticipated by the responsible authority that there would be landscaping in the setback area along the northern boundary. The hiatus area with a width of 8.42 metres has now been concreted from the rear wall of the supermarket to within approximately 300mm of the northern boundary of the land.
There is a Melbourne Water easement running along, and just inside, the northern boundary of the land. Melbourne Water has agreed with Begonia Pty Ltd that it can seal over a portion of this easement, but not to the extent that it has now been concreted. This does not necessarily mean that Melbourne Water would not agree to what has been constructed, but it would wish to have specifications and an opportunity to consider its position.
There is a small portion of the rear wall of the supermarket where the setback from the northern boundary is only 5 metres. That is at the eastern end of the hiatus area. From there there is a setback area 5 metres wide running east to McCormicks Road, the north-south road on the eastern side of the land being developed. South of that setback there is a loading area, access ways to the loading area and parking in the eastern setback from McCormicks Road. These are areas where activity is to be anticipated, and the possible generation of noise.
The loading area is to be fenced off from the 5 metre setback by a fence with a further 2 metre high acoustic fence to be erected along the northern boundary from the vicinity of McCormicks Road back west to the hiatus area. The acoustic fence is to protect residents to the north from possible noise intrusion from the loading area to the south.
This arrangement gives a long thin area 5 metres wide from approximately the location of McCormicks Road back to the hiatus area. The northern 3 metres of this strip is to be devoted to landscaping with a concrete path along the southern 2 metres.
Begonia Pty Ltd proposes to protect the security and amenity of housing to the north by denying access of the public to the 5 metre strip and the 8.42 metre hiatus area by means of lockable gates and an external fixed security camera.

This case came from a colleague of mine on 17 August 2007. Concern was felt and expressed on behalf of the responsible authority in relation to the possible interest of residents to the north of the northern boundary arising from alterations to the approved plan, or rather, at this stage, construction not in accordance with the currently approved plans. Directions were given for amended plans to be prepared of what is in fact proposed which was intended to accord with what has been built, and for those plans to be served on the parties and also on the residents over the northern boundary. This service on those residents was to be accompanied with other documents indicating what steps they should take if they wished to be made parties for the current proceeding. These steps included the filing of statements of grounds. Although these directions were carried out, no statements of grounds have been filed by any of the people living on the north side of the boundary, none of them have applied to be joined as parties and none appeared at the hearing. This is in spite of the fact that at least two of them certainly received the documents served on them because they wrote letters acknowledging as much to representatives of Begonia Pty Ltd. They did not, however, comply with the directions as to what to do if they wished to become parties.[3]

The first approach of Begonia Pty Ltd to rectifying its situation was to prepare amended plans depicting what has been constructed and what is proposed in the further construction of buildings and works and then to present that to the responsible authority with a request that the amendments be approved as amendments to the currently approved plans.
Until May 2005 it would have been possible for the responsible authority to amend approved plans pursuant to s.62(3) PE Act as it then stood providing it was satisfied that the plans as amended complied with the planning scheme and the permit. That provision has now been repealed.
However, Condition 5 of the permit contains a so called "secondary consent" condition. It reads:
1. The development as shown on the endorsed plans[4] must not be altered without the written of the Responsible Authority.
This means that the development can be altered with such written consent (so called "secondary consent"). It does not make significant difference whether such a condition says that the plans themselves cannot be varied without the consent of the responsible authority, but can be with such consent; or whether it provides that the development can vary from the endorsed plans with the consent of the responsible authority. It is not really practical for the responsible authority to give such consent unless it has modified plans depicting what variations are proposed.
Begonia Pty Ltd sought such consent from the responsible authority. No such consent has been forthcoming to date. It is not that the responsible authority simply refused to grant its consent. Rather it had doubts as to the propriety of the proposed means of rectifying the situation by means of a secondary consent. It expressed concern and invited the company to obtain and present legal advice that the course proposed is available.

Section 87 procedure: Does "permit" include approved plans endorsed under a permit?

It is perhaps unfortunate that the company did not take up this suggestion, but set off in another direction. This other direction was to make a request under s.87 PE Act for amendment of the permit. That course was appropriate, up to a point, in as much as rectification will require amendments to the permit. By "permit" I mean the permit document issued at the direction of the Tribunal in the previous case which granted the permit. In granting the permit my colleague and I granted certain permissions subject to certain conditions. We did not grant or endorse or approve plans. Rather, Condition 1 of the permit we granted required amended plans to be submitted and approved by the Responsible Authority. Condition 1 set out a number of modifications to then existing plans that were necessary before such plans would be approved. Condition 1 did not say that the plans when approved would be part of the permit. That was because we took the view that they are not part of the actual permit granted, but are later plans required to be submitted and approved "under the permit" after the permit itself had been issued. They are not something that we ourselves approved or granted at the stage of granting a permit. Condition 1 said that the amended plans were to be submitted to and approved by the Responsible Authority. It went on to say:

"When approved these plans will be endorsed as evidence of their approval and will become the endorsed plans in relation to this permit."

This wording carefully maintains the distinction between the permit we granted and the plans to be later approved under the permit which we contemplated but which we did not grant.
It is true that in years gone by, and sometimes now, the Tribunal has granted permit containing conditions where an "amended plans condition" equivalent to our present condition 1 said something like that the modified plans required, when approved and endorsed will be become part of the permit. In years gone by I, myself, have used that form of words. That was until I was called upon to consider the correctness of that formulation in the case of Grosios v Monash CC[5]. In the reasons in that case I set out why I had come to the conclusion that such a formulation was incorrect and that it was important to maintain the distinction between the permit itself, including the words in which the permit itself was granted on the one hand and plans or specifications or other things approved under the permit on the other. The distinction was borne out by the terms of the PE Act, as well as planning practice. S.62(3), and the secondary consent procedures (recognised in the second instance by s.149(1) PE Act) provided the means whereby approved plans specifications and the like could be varied. Section 149(1) provides a review where such secondary consent is sought but refused or not granted. That, at any rate, applies where a secondary consent is sought under a condition like condition 5 in the permit in the present case.[6] As opposed to amendments to approved plans and the like, amendments to a permit proper, that is, the actual terms of a permit, could be made by the responsible authority (in certain circumstances) pursuant to the previous form of ss.72 and 73 PE Act, or by the Tribunal pursuant to s.87.
The barrister who appeared on behalf of the company was aware of Grosios' case and that there has been, at least, a difference of opinion within the Tribunal as to whether s.87 is available to amend, not only the terms of a permit, but also an approved plan or other approved document approved under a permit. He made reference to Planning and Environment Service (Victoria) published by Butterworths[7] and to annotation [586.3] which refers to Grosios and other cases where it has been followed or a similar view has been taken. That annotation also points out that some other cases, decided since Grosios, appearing to be at odds with it in relation to this point. The annotation makes reference to several such cases, and Mr Cameron, on behalf of the company, referred to some others. The advisers of Begonia Pty Ltd apparently decided or advised their client to put all their eggs in one basket and to commit itself to the second view, rather than the Grosios view. It may have been wiser to keep both options open by making a request under s.87, which is necessary for other reasons, and also by applying under s.149(1) PE Act for a review of the failure of the Responsible Authority to grant a secondary consent pursuant to condition 5.
I have considered again the cases referred to by Mr Cameron, including those referred to in the annotation, which he says support the view adopted by the company. I remain satisfied, indeed convinced (at least for the present) that Grosios is correct.
Of course, if there is a decision of the Supreme Court on the point I would be bound by it, but none has been referred to. Mr Cameron suggested that I was bound by a decision of a deputy president of this Tribunal in this regard, but I do not think this is correct_._ The Tribunal was not bound by its own decisions on points of planning merit, or on questions of law, however persuasive previous decisions might be. One of the decisions referred to whilst determined by Stuart Morris QC when he was President of this Tribunal and a Justice of the Supreme Court. However, he had expressed the view that other members are not bound by decisions of the Tribunal on points of law, even when determined by himself as President; although the Tribunal would be bound by his decisions when he sat as a Justice of the Supreme Court.
I do not find the reasoning found in the cases cited by Mr Cameron to be persuasive on the point he argued for.
He referred to Thompson v Stonnington CC[8] decided shortly after the Grosios decision. I was referred, in particular, to paragraphs 26 and 27. in that case at paragraph 25 the member had expressed regret that there were no proceedings before the Tribunal dealing with the merits of that case and noting that the council had dealt with a request to amend plans that an application under ss.72 and 73 PE Act as they then stood, together with an application for declaration. Paragraphs 26 and 27 read:
1. However this need not have been the case. It appears to me that there is a prima facie case that the Developers could bring a S 87 application to amend the permit to the Tribunal. The Developer has not chosen to do so. The threshold grounds under S 87(1) would seem to be met as the departure from the endorsed plans constitutes a breach of the permit and the collapse of the wall could be argued to be a material change in circumstances.
2. It was suggested by Mr Townsend that the S 87 application only authorises an amendment to a permit and not the plans, and he referred to some authorities that plans are not part of the permit. However in this case the permit states that the plans when endorsed are part of the permit and it could be argued that the plans become part of the permit by reference when endorsed. In my knowledge the Tribunal has frequently dealt with S 87 amendment applications which result in the approval of new plans. Any perceived hurdle could be overcome by amending the permit to include a reference to the new plans.
These paragraphs appeared to be carefully worded and need to be read carefully. Firstly, I consider them to be obiter dicta and so would not be binding, even if so stated by the Supreme Court. In any event they do not actually say that approved plans are part of the permit or that they can be amended pursuant to s.87. To say that something appears to be "prima facie" available to the developers is not at all the same thing as saying that, having considered the matter, that option was in fact open.
There is reference to Mr Townsend having mentioned some authorities, but they are not discussed or analysed or criticised or found to be incorrect or wanting. In fact, they are not even named. It is not apparent whether the Grosios case is included amongst them. As a matter of fact, it is quite open on the wording of paragraph 27 that Grosios case was not cited and not considered. In those circumstances, if the Tribunal was bound by previous decisions on questions of law, Thompson's case would be said to have been decided per in curian. In other words, it would be a decision that would not itself be a binding precedent where the Tribunal's attention had not been drawn to a relevant authority. In those circumstances, if the doctrine of precedent applied, it would be the earlier case that prevails.
The fact that the permit states that the plans, when endorsed, will be part of the permit do not make them so. The Grosios case clearly indicates that such a notion is a mistake. I admit that it is a mistake I made for some years before I was called upon to carefully consider the question. It does not take the matter further to say that "it could be argued" that the plans become part of the permit. No doubt it can be argued; but the question is, is such an argument correct? For reasons given in Grosios I do not consider it correct, indeed I do not think it bears logical examination. If the Tribunal has frequently dealt with s.87 requests as a means of approving new plans, that does not decide that course is open or that the approach is correct. The existence of decisions saying the opposite calls for some justification for such a view.
The final sentence refers to a means of overcoming the "hurdle" of approved plans being subsidiary documents approved under permits rather than parts of the permit itself. Even this sentence recognises that there may be a hurdle, without deciding whether or not there is one. I think the hurdle exists. I will consider this hint as to how it might be overcome.
I think the situation is that the Tribunal in that case did not really find it necessary to determine the point, and did not do so.
The decision of the President in Gant v Greater Geelong CC[9] is an interesting one. It was determined on 26 September 2003, after Grosios. It makes no mention of Grosios. In the first paragraph of the reasons His Honour asserts, or perhaps just assumes, that an endorsed plan forms part of the permit. His first paragraph reads:
1. While the first endorsed plan formed part of the permit, it could not be regarded as a core component of the permit with which consistency was required.

The amended plans were required to be "generally in accordance with" submitted plan. There is no examination of the question of whether endorsed plans should be regarded as part of the permit or not. The case is interesting because it demonstrates the considerable logical difficulties that are encountered if this distinction is not borne in mind. His Honour, as he then was, decides that the plans, they are part of the permit, could be effectively disregarded because they were not "a core component" of it. It is highly inconvenient, to say the least, to have to recognise in circumstances like this that there is a distinction to be drawn between "core" parts of the permit actually granted by the authority that granted the permit on the one hand, and "non core" parts that are nevertheless part of the permit subsequently approved under the permit on the other. If such a distinction is to be drawn, what is the basis for drawing it? When will part of a permit be a "core" component of the permit" and in what circumstances will part of a permit be a non core component?

I respectfully observe that all this comment, if not failure of logic, would have been avoided if the Tribunal in Gant's case had been referred to Grosios' case and its logic adopted. I will not analyse paragraphs 4 and 5 of the Gant reasons, safe to say that I think they bare out what I have already said.
I was referred to the case of Jolin Holdings Pty Ltd v. Moreland CC[10]. This is a decision by an eminent planner member who is, however, not a lawyer. I find no reference to the Grosios case in the reasons. Indeed, I have not really found a passage that would be relevant to Mr. Cameron's contentions. This is not to say that none exists, but only that I have not located it.
In Wellington SC v. Dasani Pty Ltd[11] there is a passing reference to the topic, but not to Grosios case, in paragraph 8. This is a decision by a lawyer member. I think that the comment can be regarded as no more than obiter. The following sentence appears:

I consider that any change to either the conditions or the endorsed plans to include gates or crossovers to Queen Street could only be made pursuant to a request under section 87 of the Planning and Environment Act 1987 to amend the permit.

This says no more than a request under s.87 can achieve amendment to conditions in a permit. It does not say, or imply, that endorsed plans can be amended by a s.87 request, but only that an amendment to the permit would be needed. It is not really clear, one way or the other, whether the word "permit" at the end of a sentence includes plans endorsed under a permit or is confined to what is actually granted when the permit itself is granted.
Koltz v. Port Phillip CC[12] involved a lawyer member but did not refer to or discuss Grosios. It appears to be rather a case about the scope of the power of the responsible authority under s.71 PE Act to correct slips and mistakes. It contains an assertion in paragraph 19 that the power to amend mistakes and errors in a permit pursuant to s.71 "... is not restricted to simply correcting the words of a permit but extends also to correcting plans endorsed under a permit". There is no argument in justification of this proposition, or acknowledgement that there might be another view beyond suggesting that Gant's case does not alter that proposition. There is reference to, and a quotation from Gant's case without taking the question further. It appears from paragraph 22 that the observations in relation to s.71 are obiter in as much as the members said they would decline to make the declaration sought on discretionary grounds, whether or not it was open to the council to have endorsed amended plans under s.71. The point had been taken that s.71 allowed amendments to the permit itself, but not the endorsed plans approved thereunder. I am not at all certain that the Tribunal actually made a decision on that point. At paragraph 24 it is observed that, even if it was not open to the council to change endorsed plans under s.71 "... it could have done so pursuant to section 62(3) of the Act".
I have perused the cases referred to by Mr Cameron. Some of them were decided by eminent town planners who nevertheless are not lawyers. They deal with several differing situations. I doubt that a great deal is to be gained by further detailed analysis of them, but I make the observation that none of them, as far as I can see, refer to Grosios or criticise its reasoning,
It is obvious, on the other hand, that Mr M.F. McNamara, Deputy President of the Tribunal, did carefully consider Grosios case in his reasons in MacMillan v. Port Phillip CC[13], see particularly paragraphs 48 and 49. In relation to that case there was consideration of permit amendments by a responsible authority under the previous sections 72 and 73 PE Act, but the same applies to permit amendments by the Tribunal under S. 87. At the end of paragraph 48 Mr McNamara said:

"In passing, it is interesting to note that whilst these matters seem to have been processed by the Council as applications under Sections 72 and 73, in Grosios v Monash City Council [2003] VCAT 626 Senior Member Byard concluded that where the amendment was sought to plans and not the text of the permit itself the proper course, at least, for a statutory power has been invoked is to be proceed under Section 62(30 and not under Sections 72 and 73."

He concluded at paragraph 49 with the following sentence:

"Mr Byard is surely correct in the Grosios' case when he concludes that the plans despite any customary usage in conditions are not actually part of the permit and therefore amendment plans do not entail an amendment to the permit."

The correctness of this view is, in my opinion, further borne out by the amendments made to the Act when s.62(3) was removed and ss.72 and 73 were recast in quite a new form. These latter to sections provide a means of responsible authorities amending permits in certain circumstances, subject to review by the Tribunal. Section 72(3) reads:

(3) In this section a reference to a permit includes any plans, drawings or other documents approved under a permit.

That sub section is included to give an extended or artificial meaning to the term "permit" which would not apply otherwise. It also makes it clear that the word "permit" does not bear this extended or deemed meaning elsewhere in the Act, including s.87. Section 97(I)(1A) further underlines the point by saying:

(1A) In this section a reference to a permit includes any plans, drawings or other documents approved under the permit.

It is unfortunate that the Second Edition of "Writing Permit Conditions" published by the Department of Sustainability and Environment with the Municipal Association of Victoria appeared just before the Grosios decision so that account could not be taken of it in the suggest drafting of conditions requiring modified plans to the approved. I think it is a matter for regret that the third edition, recently published, similarly overlooks this point.

Are secondary consents limited to inconsequential matters?

On a somewhat different point I was also referred to the decision of the very capable planner member who is not a lawyer in APAC Design & Construction v. Whitehorse CC[14] in relation to the scope of discretion available by means of a secondary consent under a condition like condition 5 in this case. At paragraph 29 the member said:
1. In my view a distinction needs to be drawn between a proposed change or changes to plans under a permit which on the one hand are of no consequence and can be dealt with by way of a secondary consent, and changes which may have an impact but which, after consideration of all relevant issues, including a balancing of policies and a consideration of the opinions of affected parties, be found to be acceptable and reasonable (sic). The proposed amendments in this case fall into the latter category in that they are changes which, following an assessment of the type referred to, could be found to be acceptable, but they are not changes which meet the test of being of no consequence.
With respect, I do not recognise this distinction, nor do I accept that there is a rule or test that only changes of no consequence can be granted by means of a secondary consent under a secondary consent condition. If the permit is limited to changes of no consequence, it would appear to be useless. It also needs to be borne in mind that secondary consents and secondary consent conditions are not limited to amendments to approved plans. Many certainly contemplate secondary consents that are consequential. I do not think it is correct to suggest that such a restricted view adopted in the APAC case has been followed by this Tribunal or its predecessors over the decades that such secondary consent conditions have been employed in planning permits. It would be more appropriate to apply a test like that contained in the now repealed s.62(3) namely that the modification must still comply with the provisions of the permit and the provisions of the planning scheme. As such, they may be of some consequence.

The deficiencies of the procedural course followed in this case

The company in having made a request under s.87, but failing to make an application for review of the failure to grant secondary consent for amendments to approved plans pursuant to s.149; left itself with only one proceeding where resolution of its problem required two. This does present a procedural problem. In these circumstances, Mr. Cameron made an oral application for review under s.149(1).
By this stage, all the relevant considerations in relation to the merits of such an application had been considered and argued in the course of the hearing by all the parties wishing to participate. In these circumstances, it appeared expedient to determine the matter on the merits and, at the very least, indicate my views in the expectation that they might be reflected in a decision by the responsible authority if a new application for secondary consent was made.
All the parties present acquiesced in the view that it was desirable that the matter should be dealt with and, if possible, with a decision being made pursuant to s.149(1), either as a new application or an amendment to the existing proceeding to add such a review application. It was observed, in this context, that I have wide powers of amendment and to disregard failures to comply with statutory requirements (cl.62 of schedule 1 Victorian Civil and Administrative Tribunal Act 1998) if I consider it to be in the interest of justice to do so. I think it is in the interest of justice to do so in present circumstances where the relevant parties had been heard on the merits and the proposed procedure, and where they agree to the matter being determined.

I have considered whether I can entertain an oral application under s.149(1) PE Act and whether I can amend the existing request under s.87 to include a review under s.149. I perceive certain difficulties in following either course. I have come to the conclusion that a better procedural solution is to take up a suggestion, made by the way, in the last sentence of paragraph 27 of the Tribunal's decision in Thompson v. Stonning CC where it is said, in the last sentence of that paragraph, that such a perceived hurdle as this might be overcome by amending the permit to include reference to new plans.[15] The s.87 request enables me to amend the permit. By that means I can amend condition 1 to require new plans to be approved to supersede those previously approved. I think this is the best course to follow in the circumstances. It now remains to figure out what orders should be made. To do that I need to consider the situation reached so far in relation to plans and what things such orders need to achieve.
I mentioned that, at a previous hearing, a member of the Tribunal (other than myself) gave directions for preparation of new plans and that they be served on residential neighbours adjoining the northern boundary of the land. As I understand it that direction had two purposes. It was to create a new version of the plans which accord with what has been built and which might be approved by the Tribunal if that was thought to be fit. It would also serve the purpose of advising the residential neighbours as to what is proposed in case they wished to follow the procedures outlined in the documents served upon them to file statements of grounds and apply to be joined as parties.
The neighbours did not follow that course. Some wrote to the company, and sought further information from that quarter, but did not take action to become parties and did not appear at the hearing. Mr. Modica, who appeared on behalf of the responsible authority, expressed some concern about their interests, but I think their failure to comply with the directions in the documents served upon them, and their failure to appear, has effectively denied me the opportunity of considering their views in that respect.
Modified plans were prepared and served in accordance with the Tribunal's directions. The responsible authority, at the previous hearing, had suggested that the pre-existing proposed amended plans were deficient in various respects. The new ones, prepared and served pursuant to the Tribunal's directions were tendered to me and were marked collectively as exhibit C3 with the four sheets being marked individually as C3.1, C3.2, C3.3 and C3.4.
In spite of whatever was done to correct the deficiencies indicated by the responsible authority, it continued to be concerned that the C3 plans contain further deficiencies. Eight deficiencies were listed in a memorandum of Mr. Modica dated 17 August 2007 which was marked as exhibit M1. Four of those deficiencies were corrected in the C3 version of the plans. As a result of the responsible authority indicating its further concerns a new set of plans were produced and tendered at the hearing. This set was marked collectively as exhibit C4 with the individual sheets being C4.1, C4.2, C4.3 and C4.4.
The C4 version catches up two more deficiencies, but leaves two further points still outstanding. One of these is the matter of the floor levels and the supermarket floor. That has to be dealt with by means of an amendment to the permit pursuant to s.87 with a requirement for engineering plans to be approved by Melbourne Water and a s.173 agreement. The other concerns landscaping plans. I understand that a landscape plans was approved as part of the originally approved plans. However, that was for the size and layout of the site then contemplated. A new landscape plan to suit the modified development is called for. The responsible authority is concerned that the new versions do not contain adequate landscaping and in particular do not provide landscaping in relation to the hiatus area. I think that the only practical solution in this respect is for me to effectively cancel the existing landscape plan and require a new one. This means that a new landscape plan, suitable to the revised development, will need to be prepared, tendered and approved. It will be open to the responsible authority, in the first place, to deal with what is adequate in such a plan, including in relation to the hiatus area. Mr. Modica raises concerns that it might be intended to use the hiatus area as a storage area for supermarket trolleys and that this may have noise implications. No such intention is indicated on any of the plans before me. Mr. Modica presses me to try and resolve this aspect at this stage, but I cannot see a practical means of me doing that. I propose to content myself, at this stage, with a few comments.
With a 2 metre high fence along the northern boundary in relation to the hiatus area and a 2 metre acoustic fence along the northern boundary of the 5 metre setback containing the path between the hiatus area and McCormicks Road to the east, any landscaping in those areas will not benefit anyone in any significant way except people residing in the adjoining houses to the north, and then only in respect of trees or shrubs growing above the height of the 2 metre fences. At that height they may soften but not screen the supermarket building or other structures to the south.
A planting bed along the northern boundary of the hiatus area between the northern edge of the concrete and the boundary fence but with a width of only 300mm or thereabouts would appear to be inadequate as a place for planting substantial trees, if such screening is thought to be required in that location. That is quite apart from any issues that might still need to be resolved between the company and Melbourne Water as to the extent to which the easement may be concreted over.
I am satisfied that a ground under s.87(1) is being made out namely that there has been a material change of circumstances since the grant of the permit. Except as discussed above, there is agreement between the parties that I should give effect to amended plans as indicated.

[3] Since this determination was written and typed but before proof reading correspondence has been received from the solicitors acting for Begonia Pty Ltd enclosing copies of correspondence from residents from that area expressing concerns. These copy documents have date and time lines indicating their delivery on the day of the hearing but by transmission at times after the close of business on that day and after the close of the hearing on that day. I am not able to take such post hearing submissions into consideration.

[4] This condition uses the expression "endorsed plans". When approved by the responsible authority plans are endorsed as evidence of their approval. Thus in some contexts, including these reasons, the expressions "endorsed plans" and "approved plans" can be used interchangeably unless a contrary intention is apparent.

[5] (2003) 15 VPR 65 [7]; [VCAT] 626

[6] There are cases indicating that s.149 was not available to review a refusal under the now appealed s.62(3).

[15] See paragraph 31 above and footnote 8 in relation thereto.

Environment Act 1987

Civil and Administrative Tribunal Act 1998

Begonia Pty Ltd v Frankston CC

At a glance

Court

Decision date

Source

Judgment (69 paragraphs)

Begonia Pty Ltd v Frankston CC (No. 2) [2007] VCAT 1718 (26 September 2007)

Parties

Legislation Cited (2)