[2005] VCAT 2227

1 The Tribunal declares that if the building work currently being carried out on the subject land, 8 Angler Parade, Ascot Vale is completed in accordance with Building Permit No. 050233 issued on 29 April 2005 by Gibson Dell Pty Ltd, the resulting development will contravene Condition 1 of Planning Permit No. ES7339 issued on 10 November 1994.

2 The Tribunal declares that if the building work currently being carried out on the subject land (8 Angler Parade, Ascot Vale) is completed in accordance with Building Permit No. 050233 issued on 29 April 2005 by Gibson Dell Pty Ltd, the resulting development will contravene Condition 2 of Planning Permit ES7339 issued 10 November 1994.

3 Application for the third declaration proposed in Application filed 23 June 2005 instituting this proceeding is dismissed.

4 Costs reserved.

Ms O'Brien, SC, instructed by Damien J. Bonnice, Planning Consultant

1 Angler Parade, Ascot Vale, offers a rare residential environment. Only a few kilometres from the Central Business District of Melbourne, in the inner-suburb of Ascot Vale, it provides frontage to an unsealed road and views across a golf course to a relatively unspoiled river (the Maribyrnong). On 10 November 1994 the former City of Essendon, acting as Responsible Authority under the Essendon Planning Scheme issued Permit No. ES7339 for the erection at 8 Angler Parade of 'a residential dwelling as wall exceeds 6m in a Skyline Area in accordance with ... endorsed plans and subject to the following conditions'. There were seven conditions of which Nos. 1 and 2 provided:

1. The layout of the site and the size of the proposed buildings and works as shown on the endorsed plan, shall not be altered or modified (whether or not in order to comply with any Statute, Statutory Rule or By-Law or for any other reason) without the consent of the Responsible Authority.

2. No new building or works shall be erected or constructed and no existing buildings shall be enlarged, rebuilt or extended (whether or not to comply with any Statute, Statutory Rule or By-Law or for any other reason) without the consent of the Responsible Authority.

2 Plans were endorsed and the residence depicted on the plans was constructed for the permit holders, Mr & Mrs Benedetti. The house was erected in a residential area and would otherwise have been an as of right use and development save for the existence of an overlay under Clause 137 of the Planning Scheme dealing with 'skyline areas'. Clause 137-1 of the Essendon Planning Scheme then provided that 'a permit [was] required to construct a building or to construct or carry out works' in an area affected by the overlay with the proviso however that in the Residential Zone the permit requirement did not apply to buildings 'if they [were] no more than 6m above ground level'. Hence, the necessity for the planning permit.

3 The calculation of ground level seems to have been made by reference to a contour map of the site prepared by Mr Paul Kennedy on 7 May 1993 with a contour interval of 0.5m. The levels were 'to an arbitrary datum', a temporary benchmark in the south-eastern corner of the triangular site set at '100.00'. The site of No. 8 was triangular with its eastern boundary running approximately north-south, a northern boundary running approximately east-west making a 90o angle at the north-eastern corner, the two sides being joined by a third abutting Angler Parade and running approximately from the north-west to the south-east. Views from the house across this boundary took the eye over open ground and the golf course to the Maribyrnong River. The site had a significant slope towards the river and the residence was 'stepped' up the slope and back from the Angler Parade frontage. The main section of the house was two storey with the lounge and dining room, kitchen, pantry, storage, laundry and bathrooms on the ground floor and four bedrooms on the upper floor. There is a patio toward the south-east corner of the triangle and a large protrusion being a garage abutting the western side of the main building. There is a second patio on the roof of the garage.

4 The site dimensions are 51.2m frontage to Angler Parade, a northern boundary of 37.74m and an eastern boundary of 44.6m with an overall site area of 653 sq m and a fall of 8m from the north-east corner to the south-east corner. The maximum height of the dwelling was 8.78m.

5 Neither the Benedettis nor any other person sought to review the determination of the City of Essendon to issue the 1994 permit.

6 In 2003 the Benedettis lodged a further planning permit application under No. MV15987/2003 with the City of Moonee Valley which had by then become Responsible Authority under a new planning scheme, namely the Moonee Valley Planning Scheme. The Council, which is the applicant in the present proceeding, determined to refuse that application and an application for review to this Tribunal on 5 March 2004 was unsuccessful with Dr Mainwaring publishing reasons dated 14 April 2004 affirming the Council's determination. As to the house erected pursuant to the 1994 permit, Dr Mainwaring said:

That dwelling has a number of terraces located to take in the expansive views to the south and west. The adjoining property to the east [No. 6] is located on slightly higher ground and has also been designed to take in the expansive views available of the Maribyrnong River valley. The property to the west similarly is designed and located to take in the view. Properties to the rear of the Angler Parade properties are located on higher ground and also have available views of the Maribyrnong River and Valley.

7 Dr Mainwaring described the 2003 proposal as being:

A two storey extension above the ground floor of the existing dwelling. The proposal is to enclose the southern terrace to provide for an entertaining room, a bathroom with small balcony and to add a floor above comprising a studio, bedroom and bathroom and parent's retreat from the master bedroom of the existing dwelling. Some roofing is also proposed to the west facing terrace at first floor level.

The 'southern terrace' referred to is the roof of the garage. The new Planning Scheme included a Design and Development Overlay of similar effect to the 'Skyline Areas' Overlay under the old Essendon Planning Scheme. Dr Mainwaring concluded:

It is the Tribunal's view that the proposed development on the site adds to the prominence of an already prominent building but challenges the particular qualities of the river environment that the Planning Scheme Overlay is directed at preserving and further, that the proposal represents an unreasonable intrusion on the views available from the property to the east.

8 Clause 2 of the Schedule to Design and Development Overlay No. 1 which affects No. 8 under the Moonee Valley Planning Scheme once again provides that a permit is not required 'to construct a building or to construct or carry out works in a Residential Zone ... if they are no more than 6m above ground level'. It was this requirement that dictated the need for a permit to enable the implementation of the 2003 proposal. The Benedettis have now formulated a proposal which they say does not exceed the 6m limit and is accordingly an as of right development on the site. They have obtained a building permit under the Building Act 1993 from a private building surveyor, Gibson Dell Pty Ltd which granted Permit No. 050233 on 29 April 2003. The work has commenced and a not inconsiderable amount of progress has been made. Work is at present suspended. There is some debate as to whether the suspension was solely as a result of the present proceeding or as a result of some other consideration. Moonee Valley City Council seeks the following declarations pursuant to Section 149B of the Planning and Environment Act:

1. A declaration that if the building works currently being carried out on the subject land (8 Angler Parade Ascot Vale) is completed in accordance with Building Permit 050233 issued on 29 April 2005 by Gibson Dell Pty Ltd, the resulting development will contravene Condition 1 of Planning Permit No. ES7338 (sic) issued 10 November 1994.

2. A declaration that if the building work currently being carried out on the subject land (8 Angler Parade, Ascot Vale) is completed in accordance with Building Permit No. 050233 issued on 29 April 2005 by Gibson Dell Pty Ltd, the resulting development will contravene Condition 2 of Planning Permit No. ES7338 (sic) issued 10 November 1994.

3. A declaration that if the building work currently being carried out on the subject land (8 Angler Parade Ascot Vale) is completed in accordance with Building Permit No. 050233 issued on 29 April 2005 by Gordon Dell Pty Ltd, the resulting development will contravene Clause 43.02 of the Moonee Valley Planning Scheme.

9 The 2005 building permit would authorise the development of a number of additional rooms for No. 8 above the roof of the garage in what Dr Mainwaring described as the area of the 'southern terrace'. Dr Dynon, the owner and occupier of No. 6 Angler Parade, complains that even although her house is on slightly higher ground than No. 8 the completion of these building works would obstruct her views into and across the Maribyrnong River Valley. Dr Dynon was represented at the hearing of the proceeding by Mr Chiappi of Counsel and sought an order of joinder to the proceeding pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998. Ms O'Brien SC, representing Ms Tanja Benedetti as respondent to the Council's application, opposed the order of joinder. I acceded to the application for reasons which I gave in the course of the hearing.

10 As to proposed Declaration 1 Mr Rantino who appeared for the Council, submitted that Condition 1 of the 1994 permit was valid and was in no sense 'spent' once the building work (development) was completed. He referred to a decision of the President (Morris J) and Mrs Komesaroff, Cope v Hobsons Bay City Council (2004) 19 VPR 96. Here, he said the case was a strong one for the continued operation of Condition 1 where No. 8 was still owned and occupied by the same persons, namely the Benedettis, as obtained the 1994 permit. According to Mr Rantino the works provided for in the 2005 building permit clearly altered or modified No. 8 and increased its size.

11 As for Declaration 2, he submitted again that the condition was intended to operate beyond the completion of the building works (development). Once again he said that Condition 2 of the 1994 permit 'was intended to have ongoing operation past the completion of the building and works authorised by the permit.' He said that on any view the building work allowed by the 2005 building permit would enlarge or extend the building which is authorised by the 1994 planning permit. He said that a responsible authority:

Can, by a permit condition, seek to regulate ongoing future activity on land even activities that would not otherwise be governed by the Planning Scheme. Examples of this are permits which by a permit condition seek to regulate hours of operation and other use related activities on permits which are only required because of development controls.

12 He said it was sufficient if the condition 'reasonably related to the permission granted'. He referred to Bayside City Council v Chantel [2000] VCAT 672.

13 As to Declaration 3, Mr Rantino said that Council accepted that the contour map drawn by Mr Kennedy in 1993 'accurately portrays the topography of the subject site as at the date of that survey'. He said that a further drawing by Mrs Benedetti's surveyor, Mr Lanera, dated 13 July 2005 was Mr Lanera's 'best endeavours of plotting the building permit plans onto the survey plan (although it has to be said that his Supplementary Drawing requires a degree of extrapolation and it cannot be said to purposely represent actual ground levels at each location)'. He said that 'ground level' was defined in the Moonee Valley Planning Scheme at Clause 72 to mean 'the natural level of a site at any point'.

14 Mr Rantino said that 'one assesses the natural ground level by reference to the level of the ground as at the date of the development'. He referred to Tribe v Greater Geelong City Council (1999) 2 VPR 224; Rizzi v Rockdale Municipal Council (1994) 85 LGERA 113 and Banyule City Council v Zumpano (Application No. 1999/88547) and Shire of Gisborne v King [1994] 1 VR 363. Accordingly, said Mr Rantio, 'one should ascertain the ground level of the subject site as at the date the building's permit was granted. Reference to the 1993 survey plan is not helpful'. He said that the reference to natural ground level:

Ought to be assessed by reference to the levels of the land that has prevailed and aside for lengthy periods of time, and that exists at the date the Building Permit was granted, notwithstanding that at some point in its history the land in question has undergone human intervention.

15 He submitted that so measured, the maximum height of the building exceeded the 6m limit 'and must require a building permit under Clause 43.02'. He submitted that this was a proper matter for declaratory relief. He referred to my decision in Cook v Melbourne City Council (1998) 1 VPR 40. He said there were legitimate questions between the parties to determine which were not hypothetical or academic and the declarations if granted were capable of being acted upon and would have practical utility. The fact that building work had commenced was not, he submitted, a bar to the grant of the relief.

16 Mr Chiappi of Counsel supported the contentions put by Mr Rantino.

17 Ms O'Brien, SC, appeared for Ms Benedetti. She said that Condition 1 of the 1994 planning permit 'is an accepted standard requirement of all works permits issued under the Planning and Environment Act 1987'. She said the intention was clear, namely, 'a permit holder cannot vary the plans endorsed pursuant to that permit without the approval of the Responsible Authority' (emphasis in the original submission). She said that Condition 1 'applies only to the works described in the permit's endorsed drawings'. She said it does not and cannot have application to any future works which may be proposed by the property owner. Once the building authorised by the 1994 planning permit was complete, the condition 'came to an end'. Accordingly, she submitted, 'there is no foundation in fact or law for the declaration sought in Order No. 1'.

18 Further, she submitted that the present application should have been made if at all under Section 149A of the Planning and Environment Act 1987 not Section 149B. She said the former section 'is concerned with the enforcement of the Scheme or permit where an interpretation of that Scheme is required'. Section 149A applications can only be brought by a 'specified person'. Dr Dynon would not have standing to bring an application under Section 149A. Ms O'Brien urged this point upon me in opposition to the joinder application. For the reasons which I gave at the time I did not accept the argument with respect to joinder.

19 Ms O'Brien also said:

To allow the use of the general provisions of Section 149B to determine the grant of a declaration to constitute a clear departure from the clear intention of the legislation as it encroaches on the specific subject matter as prescribed in S.149A. See Refrigeration Express Line of Australasia Pty Ltd v Australian Meat and Livestock Corporation No. 2 [1980] FCA 38; (1984) 29 ALR 333 at 347 as per Deane J, as approved in the HC in Darley v Transwaste (1991) 172 CLR 167 at 172 and as per Dawson at 181 whenever there is a particular enactment and a general enactment in the same statute, and the latter is taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative.

20 She said that there is a general principle of interpretation where an enactment in affirmative words appointing a course to be followed would usually be understood as incorporating a negative, namely that the matter is not to be done by some other course R v Wallace [1949] HCA 30; (1949) 78 CLR 529, 550 per Dixon CJ. She said this was especially so when the affirmatively conferred power was qualified by condition, limitation or direction. As in the case of Section 149A where the application could only be brought by a 'specified person'. She referred to R v Wallace and also to Gavin Duffy CJ and Dixon J in Anthony Horton and Sons v Amalgamated Clothing and Allied Trade Unions of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7 'as approved in the HC in Downey v Transwaste at 172 and as per Dawson at 181'. She said that the word 'plans' when used in Condition 1 were not intended to operate on any future buildings or works.

21 As to proposed Declaration 2, Ms O'Brien submitted that Condition 2 was 'ultra vires or beyond power as it attempts to regulate the whole of the use of the land not just as specified in Schedule 1 of Clause 43.02'. She said it imposed an unauthorised condition on the exercise of right. She referred to Melbourne Corporation v Barry [1922] HCA 56; (1922) 31 CLR 174, 197 and Herald and Weekly Times Limited v Victorian Civil and Administrative Tribunal [2005] VSC 44. Since the condition was ultra vires it was of no legal effect. She referred to Bodington v British Transport Police [1992] 2 AC 143; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 615, 647 and Stanard v McIntyre [2004] FCFA 310 at [47].

22 Turning first to Condition 1 of the 1994 permit. It is instructive to compare its terms with Condition 1 of a permit obtained in 1997 and considered by Morris J and Mrs Komesaroff in Cope's case. That condition stated 'the development and use as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority'. The Tribunal there concluded that that condition was not 'spent' upon the completion of the building but provided a possibility for consent for future alterations to the approved development.

23 Can a similar approach be adopted with respect to Condition 1 for the 1994 permit? Ms O'Brien's contention is that this condition should be read as applicable only to amendments to the endorsed plans. Had that been the meaning of the condition it would have been easy enough for whoever drafted it to direct the restriction to amendments to endorsed plans, however, the condition directs itself to 'the layout of the site and the size of the proposed buildings' as depicted on the endorsed plans. In Cope's case the permit holder wanted to use a secondary consent under Condition 1 to enable it to carry out certain additional developments which would have been prohibited from being allowed in a new permit by virtue of a subsequently introduced mandatory height limit. The Council's representative contended that in the circumstance where the original development had been completed, Condition 1 was 'spent' and could provide no basis for a secondary consent for a further development particularly one which 'outflanked' the subsequently introduced mandatory height limit. The Tribunal rejected that contention. It conceded that special considerations apply with respect to conditions in permits for subdivisions but that these special considerations did not apply to a permit for development by way of the erection of a building. The Tribunal said:

In the present case, the permit allowed the development of the land with a building and provided that the development, as shown on endorsed plans, must not be altered without the written consent of the responsible authority. This form of permission contemplates the possibility that the development will be altered from that shown on the endorsed plans. It is arguable that the permit might be regarded as only contemplating the possibility of written consent being given if this occurred before the development commenced or, at least, before the development was completed. But common experience tells us that development is sometimes carried out in a manner different than that permitted, yet the differences are such that it is still reasonable to consent to them after the event. Why should a permit expressly be interpreted so as to exclude this reasonable possibility? Further, it is also commonplace that once development is carried out the owner may wish to effect minor changes to the development. Why should a permit expressly allowing the possibility of consent being given for the alteration of the development be interpreted so as to deny this possibility in every circumstance simply because the development has been carried out?

24 In Cope's case the Tribunal allowed the permit condition to be regarded as kept alive for the benefit of the permit holder. Logically however, where such a provision stays open as the basis for a secondary consent, it must also remain alive as a restriction. What is proposed here and what is already under construction is the very subject matter dealt with in Condition 1, namely alteration or modification to the size of the works shown on the endorsed plan by adding an additional storey above the southern terrace or patio.

25 There seems to me to be no room for doubt that if Condition 2 is effective according to its terms it stands as a bar to the development allowed by the 2005 building permit. The contention on behalf of Ms Benedetti here was that the condition was ultra vires. Assuming that a collateral attack can be mounted upon the condition in these circumstances where there is no cross-application by Ms Benedetti, I am of the view that the contention that Condition 2 should be regarded as ultra vires must fail.

26 In Melbourne Corporation v Barry [1922] HCA 56; (1922) 31 CLR 174 the High Court held that a section of the Victorian Local Government Act which authorised the Council to make by-laws regulating traffic and procession did not authorise a by-law that required prior permission for all processions except military and funeral processions. The Court concluded that this amounted to a prohibition of all but a limited class of processions and therefore went beyond mere regulation. A by-law of this sort would require authority in Council to prohibit processions, therefore the by-law was invalid. In Herald and Weekly Times Limited v Victorian civil and Administrative Tribunal [2005] VSC 44 the Herald and Weekly Times Limited challenged the validity of a number of rules made by the Rules Committee of this Tribunal. The impugned rules denied access to files in certain Lists. According to the Trial Judge Bongiorno J 'unless a discretion is exercised by designated persons in favour of inspection' [6]. His Honour concluded that the impugned rules amounted to a prohibition on access to certain classes of Tribunal files despite the fact that the statute conceived that the public would be entitled to access to those files. He concluded that the Tribunal's rule making power extended to regulation of access but not outright prohibition. The analogy with Barry's case is clear enough.

27 These principles however do not render Condition 2 void. The effect of Condition 2 is to permit a development which could not be carried out as of right viz. No. 8 Angler Parade in its existing form subject to a conditional prohibition on any further development, even if that development could otherwise have been carried out as of right.

28 The permit must be read as a whole. It allows a substantial development on No. 8 but conditionally prohibits further development. On no basis could it be treated as an outright prohibition in the way the by-law in Barry's case was or the rules in the Herald and Weekly Times' case.

29 In more positive terms a condition will be regarded as a valid planning condition if it related to a planning matter or more to planning policy and related to the permission being granted. Rosemeier v City of Greater Geelong (No. 1) (1997) 20 AATR 86; Bayside City Council v M. Chantel [2000] VCAT 672, 133. The 1994 permit was required because of the 'Skyline Areas' Overlay in the old Essendon Planning Scheme. A conditional prohibition on the introduction of further bulk by way of built structure onto a structure which already exceeds the prima facie 'as of right' limit under the Overlay for as of right developments viz. 6m clearly relates to both the permission and the planning policy which requires the permission to be obtained. Ms O'Brien submitted that Section 62 of the Planning and Environment Act 1987 prohibited this condition because it was inconsistent with the Planning Scheme (presumably at that state the Essendon Planning Scheme) in requiring a permission for something that was in accordance with the Scheme to be 'as of right'. In my view there is no relevant inconsistency. It is quite common for conditions to regulate matters on a development site such as fences, landscaping, trees and the like which viewed in themselves and in the absence of the permitted development could be erected, demolished, altered or enlarged 'as of right'. Once one accepts as Cope's case requires that one must, that these conditions are not 'spent' on completion of the development, they operate as an indefinite constraint on what could otherwise be dealt with 'as of right' under the relevant Scheme. To hold otherwise would entail the view that items such as landscaping and so forth can be immediately reversed or demolished forthwith upon completion of the development a view of things which would reduce the planning permit process whether at the Responsible Authority level or the Tribunal level to a solemn farce. In my view the entitlement of a land owner or occupier to carry out works or development or undertake uses 'as of right' under a planning scheme extends only to those activities insofar as they have not been trenched upon by effective permit conditions.

30 The most difficult question arises with respect to proposed declaration No. 3. An initial problem is to determine the level from which the 6m limit is to be measured. Mr Rantino noted that Clause 72 of the Moonee Valley Planning Scheme defines ground level as being 'the natural level of a site at any point'. Uninstructed by authority, I would have taken the reference to the 'natural' level of a site to be a reference to the level of the site when it was undisturbed by human activity. Ms O'Brien, SC, contended that this was the proper approach and a town planning consultant witness, Mr Bonnice concurred. There is no evidence to suggest that the levels measured by Mr Kennedy in his contour map in 1993 related to land which was other than undisturbed, though the location of this site albeit in a secluded area in inner Melbourne might lead one to be sceptical about the conclusion that the land was undisturbed as recently as 1993. I would have concluded that had the drafters of the Scheme intended to take measurements from a disturbed, albeit pre-existing level on site, the definition in the Scheme would have referred to 'pre-existing' levels rather than 'natural' levels.

31 With some hesitation however I believe that the authorities referred to by Mr Rantino require me to take a different view. In Shire of Gisborne v King [1994] VicRp 23; [1994] 1 VR 364 Nathan J considered a number of questions of law arising out of two summonses seeking injunctions restraining Mr King from breaching enforcement orders given by the Planning Division of the Administrative Appeals Tribunal. His Honour considered a number of aspects relative to the State and Local Sections of the then Gisborne Planning Scheme. One of the phrases which he had to consider was one which required a permit for 'alteration to the natural conditions or the topography' of a site. The evidence showed that Mr King's land had been extensively altered and degraded by Shaft Goldmining, sub-soil had been brought to the surface and that there were mullock heaps in various locations. In addition the land had subsequently been extensively burnt in the Ash Wednesday bushfires of 1983. King contended that the land as it presented itself to him could not be regarded as in its natural condition or having its natural topography and so the works which he had carried out did not constitute alteration to the natural conditions or the topography of the site. His Honour concluded that for these purposes the natural condition or topography of the land meant the land as it stood immediately before an application or a particular action was taken. His analysis was as follows:

An issue arises in this case as to the meaning of the term 'alteration to the natural conditions or the topography'. Does the topography mean the configuration of the land prior to European settlement? And what of the effect or alterations to that natural configuration brought about by mining, or other forms of industry which might have changed the shape of the land? In this case much of the ground surface has been altered by industrial intervention to which I have already referred. Much of the sub-soil was brought to the surface by shaft goldmining and then stored in mullock heaps, some of which appears to have spread over the ground surface in a form of slurry in the intervening century. Other segments of the land have been cut by deep clefts as a result of slate mining and yet other portions have been altered by tracks presumably constructed and used to extract timber and provide access to the various mines. The question is of relevance because King contends that he was doing nothing more than either renovating or rehabilitating existing tracks or levelling pre-existing mullock heaps. In one part of the borrow area (ibid) he contended he removed overburden from previous mining activity in order to display the 'natural' surface of the land, that is, that level which pre-dated European intervention. To my mind the term 'alteration to the natural conditions or topography' means that the surface or topography which must not be disturbed is that which immediately pre-dates the making of the application. That is, the configuration of the land, whether disturbed or otherwise as a result of prior European industrial, pastoral or mining activities, but being that which exists at the time an application is made. This conclusion bears the merit of commonsense. There will be many applications to rectify the results of extractive industries or neglect, so as to either restore the land to its pre-European shape or else render it productive in some other way.

[1994] VicRp 23; [1994] 1 VR 364, 370

32 This Tribunal followed His Honour's approach in Banyule City Council v Zumpano (1999/88547). In Rizzi v Rockdale Municipal Council (1994) 85 LGERA 113 the New South Wales Court of Appeal, Kirby P, Mahoney and Powell JJA considered an application against an injunction granted by Bignol DJ of the Land and Environment Court. Bignold J had granted an injunction restraining landowners from erecting a building in accordance with a development consent without reducing the height of the building. The Court dismissed the appeal, Mahoney J gave a judgment which was concurred in by the other two Judges. He said:

There appears to have been discussion also as to whether the point at ground level was to take account of, for example, excavations which had been made at a particular time. In my opinion, the point on the ground to which or from which the height was to be measured was a point on the level of the ground 'in its natural state' at the date of the development consent. That involved two things: that the point be found where the level of the ground was 'in its natural state'; and that this was to be determined if at the date of the development consent. The use by the Council of 'the existing' indicates this to be so.

(1994) 85 LGERA 130, 116.

33 Both Nathan J in King's case and Mahoney JA in Rizzi's case seem to be using the word 'natural' as being synonymous with 'pre-existing' immediately prior to the relevant development. This also appears to be the approach adopted by the Tribunal in Tribe v Greater Geelong City Council (1999) 2 VPR 224, though the Tribunal there was not faced with any evidence which appeared to draw distinction between the ground levels in their totally undisturbed state or the ground levels as disturbed by the development in question.

34 In conformity with this approach, it would seem that the proper level from which to measure is not the level as set in the 1993 survey but the level which immediately pre-existed commencement of the subject development.

35 Mr Rantino employed a scale ruling on the south elevation of the approved building consent plans and demonstrated that the distance between the line shown on those plans as existing level and the top of the buildings as depicted on the elevation exceeded the 6m limit. Mr Bonnice in his evidence on behalf of Ms Benedetti, said that this portrayed a methodological error by Mr Rantino. It assumed that the line shown as pre-existing ground level was immediately at the foot of the structure being measured. In fact, Mr Bonnice said that the pre-existing ground level was depicted as at the site boundary not the foot of the structure. The plans submitted in support of the 2003 permit application considered by this Tribunal in 2004 made that distinction, specifically labelling the existing level line as being at the site boundary. The building plans for the present proposal do not make that distinction. It is surprising that the evidence as to the interpretation of pre-existing level was led from Mr Bonnice. Mr Lanera who drew the plans was present in the Tribunal but not called upon to give evidence. When challenged by Mr Chiappi earlier in the hearing as to whether she was going to call Mr Lanera as a witness, Ms O'Brien demurred. Eventually towards the end of the hearing she offered to call Mr Lanera solely for the purpose of allowing him to be cross-examined by Messrs Ratino and Chiappi. In the event neither of them asked for Mr Lanera to be put in the witness box. Given that the offer was made, I can draw no adverse inference as to Ms Benedetti's failure to call Mr Lanera as a witness.

36 Mr Bonnice produced a document prepared by Mr Lanera which extrapolated the Kennedy survey and contour map of 1993 onto the 2005 building plans. This plan shows that at no point taking the Kennedy contour map as the basis for natural level does the proposed addition stand more than 6m above ground level. The proposed addition is triangular in shape with its apex pointing to the south-east. Mr Lanera's plan measures the height of the building at four points, namely each of the three corners and also on the side of the addition facing south-west approximately mid-way along that side. At Point 1 the north-east corner Mr Lanera shows natural ground level at 101.56 thereby yielding a maximum height for the building of 107.56m by reference to the arbitrary datum, concluding that the total height of the building is 106.15m. At Point 2, being the south-east corner, the maximum height for the building would be 106.33m and Mr Lanera calculates it at 106.15. At Point 3, being a point approximately half-way along the south-west side of the addition, Mr Lanera calculates a maximum allowable height of 105.72m with an actual height of 105.7m, that is, the height is 20mm below the maximum allowable height. At Point 4, being the north-west corner, the maximum allowable height is calculated by Mr Lanera as 105.55m with an actual height of 105.45m. The roof therefore he said, is 100mm before the 6m height limit.

37 As some of these measurements are very close indeed. Given that the Benedettis have built their home and no doubt landscaped it, since the Kennedy survey of 1993, even in the absence of a natural ground line based on existing conditions immediately at the foot of the proposed new structure as distinct from at the site boundary, it would be reasonable to infer that save where cuts have been made in the ground, that the ground level will have been raised since 1994. Since this proposal goes so close to the limit on the 1993 levels, this would suggest that based on existing ground levels it probably exceeds the 6m limit. On that view of things the declaration sought as No. 3 should be made. Nevertheless, the consequences of making such a declaration would be grave indeed and what I have just said might be regarded as bordering on speculation. Ms O'Brien correctly drew attention to the fact that neither the Council as applicant nor Dr Dynon as joined party, had called any expert evidence on these issues. The cross-examination of Mr Bonnice by Messrs Rantino and Chiappi raised some anomalies in the 2005 plans and some matters which could not satisfactorily be explained. Nevertheless there was no affirmative expert evidence from the parties allied against Ms Benedetti supporting the making of proposed Declaration No. 3. Ms O'Brien submitted that the failure of the Council to call anyone from its building department enabled me to draw the inference that the evidence from any such expert from Council's Building Department would not have assisted its case Jones v Dunkel (1959) 101 CLR 298.

38 In the end I find myself in the same situation as the Tribunal in Tribe's case. Faced with evidence which is suggestive of a breach of the height limit but insufficiently conclusive to enable me confidently to make a finding to that effect on this important issue as the Tribunal in Tribe's case did, I believe the proper course therefore is to decline to make proposed Declaration 3.

39 As to the other two declarations, no separate discretionary issues were urged against their being made if the grounds for them were otherwise established.

40 I should say something about Ms O'Brien's contention that this application should have been made pursuant to Section 149A of the Planning and Environment Act rather than Section 149B. For ease of analysis I set out the two sections.

149A. Application by specified person for declaration

(1) A specified person may apply to the Tribunal for the determination of a matter if -

(a) the matter relates to the interpretation of the planning scheme or a permit in relation to land or a particular use or development of land;

(b) the matter relates to whether section 6(3) applies to a particular use or development of land; or

(c) the matter relates to a provision of a planning scheme or amendment permitting the continuation of a use lawfully existing before the coming into operation of the planning scheme or amendment, or permitting the use of buildings or works for a purpose for which they were lawfully erected or carried out before the coming into operation of the planning scheme or amendment.

(2) The Tribunal may determine the matter and may do one or both of the following -

(a) make any declaration that it considers appropriate;

(b) direct a specified body to take, or refrain from taking, action specified by the Tribunal.

(3) The responsible authority is a party to any proceedings under this section.

(4) The Tribunal's power under this section is exercisable only by a presidential member of the Tribunal or a member of the Tribunal who is a legal practitioner.

(1) A person may apply to the Tribunal for a declaration concerning -

(a) any matter which may be the subject of an application to the Tribunal under this Act; or

(b) anything done by a responsible authority under this Act.

(2) On an application under sub-section (1), the Tribunal may make any declaration it thinks appropriate in the circumstances.

(3) The Tribunal's power under this section is exercisable only by a presidential member of the Tribunal.

41 It will be seen that the orders authorised by both sections are purely declaratory in nature and that the Tribunal constituted for the present proceeding would be competent to make an order under either section. In the end it seems to be a distinction without a difference. Section 149B(1)(a) specifically concedes that an application for declaration may be brought under its terms even although such matter could be dealt with under a different head of the Tribunal's jurisdiction in the Planning and Environment Act. The distinction between the two sections seemed to be principally urged by Ms O'Brien as a basis for excluding Dr Dynon as a party to the proceeding because she was not within the definition of 'specified person' set out in Section 148 and applicable for the purposes of Section 149A. As I said in my ruling on the application for joinder, the concept of 'specified person' governs the identity of the person who may be applicant. It does not operate as any direct constraint upon the Tribunal's powers of joinder under Section 60 of the Victorian Civil and Administrative Tribunal Act 1998.

42 I reject the contention that Declarations 1 and 2 cannot or should not be made pursuant to Section 149B.

43 Mr Rantino asked for the opportunity to consider the Tribunal's substantive determination before making submissions on the question of costs. Accordingly, I will reserve the question of costs.