Victorian Civil and Administrative Tribunal|2003-11-17|Before: Coeur Architects P

Bird de la Coeur Architects v Yarra CC [2003] VCAT 1720 (17 November 2003)

It has been brought to the attention of the Tribunal that there is accidental slip or omission in the orders of the Tribunal in these Applications for Review. The orders of the Tribunal dated the 6 October 2003is corrected under the provisions of Section 119 of the Victorian Civil and Administrative Tribunal Act 1998, the corrected orders are set out below.

The order of the Tribunal in Application for Review P1260/2003 is that the decision of the Responsible Authority is varied. A permit is granted for a dwelling at 3 Brunswick Place, Fitzroy, generally in accordance with the plans by Bird de la Coeur Architects P/L (Drawings TP01 to TP03 all Issue B), the endorsed plans, and subject to conditions 2 to 10 and conditions 12 & 13 set out in the letter from the Responsible Authority to the Registrar of the Victorian Civil and Administrative Tribunal dated 5 September 2003.

The order of the Tribunal in Application for Review P1261/2003 is that the decision of the Responsible Authority is varied. A permit is granted for a dwelling at 5 Brunswick Place, Fitzroy, generally in accordance with the plans by Bird de la Coeur Architects P/L (Drawings TP01 to TP03 all Issue B), the endorsed plans, and subject to conditions 2 to 10 and conditions 12 & 13 set out in the letter from the Responsible Authority to the Registrar of the Victorian Civil and Administrative Tribunal dated 5 September 2003.

The order of the Tribunal in Application for Review P1262/2003 is that the decision of the Responsible Authority is varied. A permit is granted for a dwelling at 7 Brunswick Place, Fitzroy, generally in accordance with the plans by Bird de la Coeur Architects P/L (Drawings TP01 to TP03 all Issue B), the endorsed plans, and subject to conditions 2 to 10 and conditions 12 & 13 set out in the letter from the Responsible Authority to the Registrar of the Victorian Civil and Administrative Tribunal dated 5 September 2003.

The order of the Tribunal in Application for Review P1263/2003 is that the decision of the Responsible Authority is varied. A permit is granted for a dwelling at 9 Brunswick Place, Fitzroy, generally in accordance with the plans by Bird de la Coeur Architects P/L (Drawings TP01 to TP03 all Issue B), the endorsed plans, and subject to conditions 2 to 10 and conditions 12 & 13 set out in the letter from the Responsible Authority to the Registrar of the Victorian Civil and Administrative Tribunal dated 5 September 2003.

The order of the Tribunal in Application for Review P1264/2003 is that the decision of the Responsible Authority is varied. A permit is granted for a dwelling at 11 Brunswick Place, Fitzroy, generally in accordance with the plans by Bird de la Coeur Architects P/L (Drawings TP01 to TP03 all Issue B), the endorsed plans, and subject to conditions 2 to 10 and conditions 12 & 13 set out in the letter from the Responsible Authority to the Registrar of the Victorian Civil and Administrative Tribunal dated 5 September 2003.

The Responsible Authority is directed to issue permits in accordance with these orders under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

1 By letter dated 14 October 2003 the Planning Consultant acting for the Applicant in these matters requested that the Tribunal order a correction of its orders, on the basis that an error had arisen because the orders directed the issue of permits subject to conditions set out in a letter of the Responsible Authority dated 5 September 2003.

2 The circumstances leading to this request were as follows:

a. the Responsible Authority in a letter dated 5 September 2003 had circulated conditions which contained conditions in addition to the conditions which formed part of its officer's original recommendation.

b. at the conclusion of the hearing, when submissions were being received in relation to the Responsible Authority's without prejudice conditions, discussion proceeded on the basis of the conditions which formed part of the officer's report,

c. the Tribunal's order directed the issue of permits subject to conditions set out in a letter of the Responsible Authority dated 5 September 2003,

d. neither the applicant or the Tribunal appreciated the differences in the two sets of conditions.

3 It was submitted to the Tribunal that had the Applicant been aware these differences, it would have opposed conditions 9 and 11 as set out in the letter referred to above, these conditions provide:

9. Prior to the commencement of any works on site (including demolition) a tree management plan for application during the construction period must be submitted for endorsement. The plan must be prepared by a qualified arborist and include plans to indicate the area around mature trees to be isolated during demolition and construction works.

11. Prior to the commencement of works on site, a letter must be submitted from an accredited environmental auditor to indicate that the conditions of the site and the proposed works are suitable for residential use, or any necessary remediation works to ensure suitability. Any recommendations of the auditor must be carried out.

4 At the hearing held to consider whether or not the Tribunal's order should be corrected, Mr Jewell for the Applicant indicated that on the basis of the acknowledgement by the Responsible Authority that arborist advise already submitted to the Responsible Authority satisfied the requirements of condition 9 then it withdrew its opposition to this condition.

5 The Applicant continued to oppose proposed condition 11, because:

* The condition required the production of a letter, when it was inherently unlikely that an accredited environmental auditor would provide any letter without first undertaking an expensive environmental audit, and

* There was no evidence to support the contention that the land could be reasonably regarded as being potentially contaminated land.

6 Ministerial Direction no.1 - Potentially Contaminated Land, is a direction under section 12(2)(a) of the Planning and Environment Act 1987, to which a planning authority must have regard in the preparation of a planning scheme amendment. While the direction is not directly relevant to the current circumstances, it usefully contains a definition of potentially contaminated land ie:

"potentially contaminated land" means land used or known to have been used for:

c) the storage of chemicals, gas, wastes or liquid fuel (if not ancillary to another use of the land).

7 Aerial photography presented at the original hearing, demonstrated that up until the early 1960's these small lots, were occupied by houses dating from the 19th century. The land has since then hasbeen used for the purpose of an unsealed open car park.

8 Ms Dowsey on behalf of the Responsible Authority argued that vehicles using the car park since its construction may have contaminated the site by the leakage of fuels and oils, and that this was an appropriate basis for requiring an environmental audit before the land is returned to residential use. No evidence was led in support of this assertion, other than advice to the Tribunal that an officer of the EPA had expressed concern in a telephone conversation.

9 This submission leads the Tribunal in a very difficult situation, an unsealed car park does not seem to be a land use with the characteristics of those land uses described in the definition of "potentially contaminated land" referred to above. Yet the assertion that the land may be contaminated, raises a concern for community health, albeit one unsupported by any evidence.

10 Ultimately the dilemma created by this unsatisfactory situation was resolved to the satisfaction of the Tribunal by the existence of another condition, uncontested by the Applicant, which required the preparation of a construction management plan which was to address, among other issues, site contamination and the disposal of contaminated matter. Having regard to the existence of this conditions I consider it reasonable to delete condition 11.

11 It is not inherently unreasonable to require an environmental audit in relation to land when there is no direct evidence that it is contaminated. But environmental audits are an expensive process, and the widespread use of environmental audits has the potential to add substantially to the cost of housing an important social consideration.

12 As Ms Dowsey observed, most urban environments are contaminated to some degree, if only with lead from vehicle exhaust emissions. The legislative framework does not appear to intend the application of environmental audits on a universal basis in urban environments. In this context I think where the history of land use is known, there needs to be some evidence that a historic land use can result in dangerous levels of contamination, where the history of land use is unknown, an audit may be necessary and the decision would need to be based on the history of land use in the area generally.

13 Where, as in this case, the historic land use, does not have the character of the land uses defined in the Ministerial Direction evidence which would be useful in an informed decision could include

a. evidence from scientific literature that similar uses elsewhere have been found to be dangerously contaminated, or;

b. a scientific assessment that the historic processes of the land use may lead to dangerous contamination having regard to source and rate of contamination, persistence, accumulation, and risks to health.

Civil and Administrative Tribunal Act 1998

Environment Act 1987

Bird de la Coeur Architects v Yarra CC [2003] VCAT 1720

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Judgment (34 paragraphs)

Bird de la Coeur Architects v Yarra CC [2003] VCAT 1720 (17 November 2003)

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Legislation Cited (2)