Breese Pitt Dixon Pty Ltd v Wyndham City Council [2004] VSC 199

5. By that decision the Tribunal required the modification of a development plan for a proposed subdivision by way of provision of a buffer strip to the freeway adjoining the subject land to the north, as a condition to its approval of such development plan pursuant to the relevant overlay control under the Wyndham Planning Scheme.

8. Under the overlay control approval of a development plan is required prior to and effectively as a framework for the grant of a permit to subdivide the land thereafter.

11. The plaintiff desires to subdivide land as the third stage of an existing residential estate. It initially appealed to the Tribunal against the failure of the responsible authority to approve a plan submitted by it. In February 2004, however, the responsible authority approved the development plan proposed by the plaintiff subject to certain conditions. In turn, at the hearing of the plaintiff's appeal in March 2004 the plaintiff accepted such conditions save for one relating to a proposed open space contribution and another relating to the setbacks of lots from flood prone levels.

14. The requirement which brings the plaintiff before the Court arises from an issue raised by the Tribunal during the initial hearing. The Tribunal describes this issue in its decision as follows:

"28. At the hearing on 29 March, the Tribunal raised a further issue concerning the interface between the proposed development and the Princes Freeway. The Development Plan has the annotation 'soundproof fencing' applied to the boundary between the northernmost lots and the freeway reserve. One of the conditions approved by Council is a copy of the section 173 agreement required by VicRoads in relation to sound attenuation of dwellings to meet noise limits. While these provisions address the direct impact of noise, they do not address the visual impact of soundproof fencing from either within the development or from the highway corridor. 29 In response to these issues, Council and the Applicant submitted an earlier version of the Development Plan showing a 10 metre buffer between the highway and lots on the north boundary. This buffer was intended to accommodate the soundproof fencing and associated mounds and landscaping. Both parties submitted that inclusion of such a buffer could be made a condition of approval of the Development Plan."

18. The transcript of the hearing before the Tribunal confirms that paragraphs 28 and 29 accurately summarise the essence of the positions adopted by the parties at the hearing. Mr Cicero who appeared for the plaintiff before the Tribunal did, however, further expressly submit:

"If the Tribunal is still concerned about it the only thing I can suggest is that we be given leave to prepare a plan which would show the detail of the acoustic fencing and the detail in the landscaping to give you comfort that that area will be treated sensitively and that it won't be, as much as you can, an eyesore for both motorists using the freeway and/or for residents who would be purchasing and living in these allotments. But they have been designed with a view to incorporating that 10 metre landscaping."

22. Following this submission there was discussion in which the parties jointly put to the Tribunal that it was open to the Tribunal to make comments in its decision or impose a requirement through the development plan as to the desirable form of landscaping within the proposed 10 metre buffer and to require the provision of landscaping on both sides of any acoustic barrier. The Tribunal member concluded this discussion by stating:

"... Well, if you're both satisfied that I can make comments or add something in the other development plan, direct that something was added to the development plan that did address those issues so that it was done to the satisfaction of the responsible authority, would that be acceptable?"

26. Both the representatives of the plaintiff and the responsible authority then confirmed that this course would be acceptable. It may be that the Tribunal member understood this discussion as one which reflected agreement that the parties were content to leave the resolution of the issue raised by her entirely to her judgment, but it is clear from the transcript that the parties contemplated and agreed to the imposition of conditions in respect of the proposed 10 metre buffer and did not contemplate or address the possibility of a substantially wider buffer.

"15. At the conclusion of the hearing, the Tribunal gave oral reasons for its decision to approve Version 13 of the Development Plan (dated 24 March 2004), subject to conditions including modifications relating to the two conditions in dispute and treatment of the interface between the development and the Princes Freeway."

33. It is to be noted that when the Tribunal gave the oral reasons referred to, it went through conditions referred to in the responsible authority's resolution by reference to numbers adopted in a written submission. It stated relevantly:

"31.4.2 would remain and 31.4.3 would remain. 31.4.4 and 31.4.5. What I would do with 31.4.5 is - and another point there which relates is the treatment of the acoustic barrier's design in the landscaping on both sides." (sic)

37. No further specific requirement for a buffer was foreshadowed.

40. Thereafter a further complication arose. Upon further considering the matter it became apparent to the Tribunal that the parties had proceeded on the basis that the land was wholly within a Residential 1 Zone whereas in fact the land was partly within an Urban Floodway Zone. Accordingly, the Tribunal afforded the parties the opportunity to make further submissions addressing this issue. A further hearing was held on 14 April 2003 and as the Tribunal's decision records:

"21. Both parties made submissions as to how the matter might be resolved. At the conclusion of the hearing, the Tribunal gave oral reasons for its decision to affirm the decision given on 29 March approving the Development Plan subject to modifications, and to include additional modifications to address the issues arising from the existence of the Urban Floodway Zone over part of the land."

44. The transcript of the hearing before the Tribunal confirms that the Tribunal again did not refer specifically to the requirement now in issue before me in giving its oral reasons on 14 April 2004.

47. The Tribunal's resolution of the issue which it had raised relating to the interface between the proposed subdivision and the freeway was to impose a requirement that the development plan be modified to provide for and show details of a 25 to 30 metre acoustic buffer between the lots along the northern boundary of the subdivision and the freeway to the satisfaction of the responsibility authority in the following terms:

"2. A plan and sections showing details of a 25-30 metre acoustic buffer between the lots along the northern boundary of the development and the Princes Freeway is to be submitted and approved to the satisfaction of the Responsible Authority. The plan should show the height and width of mounds, height and materials of acoustic fencing and landscaping treatment on both sides of the barrier."

51. The Tribunal set out its reasons for imposing this requirement at [34] to [36] of its decision.

"34. In relation to the interface between the proposed development and the Princes Freeway, the Tribunal is not satisfied that the issue of the visual impact of the sound barriers (from both the Princes Freeway and internally within the proposed development) has been satisfactorily addressed in the Development Plan, even if modified by the proposed 10 metre buffer. The design of mounds, barriers and associated landscaping needs to respond to the physical context - in this case a wide, open and flat landscape, part of which is a major freeway reserve. There are no other developed areas with sound barriers in this vicinity. From the freeway reserve, the proposed acoustic fencing would be a significant visual intrusion into the broad landscape. 35. From within the development, the acoustic fencing as shown on the Development Plan directly abuts the rear of some 14 lots averaging about 38m in depth. The Tribunal notes that acoustic fencing of this nature elsewhere on the freeway has been retro-fitted to ameliorate the results of poor planning in the past, and that it should not be acceptable in 2004 to create these conditions anew. Even with a 10 metre buffer, the amenity of residents of these lots would be of poor quality and the use and enjoyment of their private open space would be considerably compromised. 36. In the Tribunal's view, this context calls for a more generous and sensitive interface than that proposed at the hearing. The total buffer width should be proportional to the scale of the development and surrounding landscape. A buffer of some 25-30 metres would allow greater use of mounding and landscaping as elements of the barrier, and would therefore be less visually intrusive from both sides."

55. The plaintiff now appeals to this Court on the basis that the requirement imposed by the Tribunal with respect to a buffer was imposed without the plaintiff being given a fair hearing as to the appropriateness and reasonableness of such a solution.

58. The plaintiff's appeal is not opposed by the responsible authority, Wyndham City Council. The solicitor for the responsible authority was, however, present during the hearing before me and did not dissent from the accuracy of any of the factual submissions put to me.

61. Section 98(1) of the VCAT Act expressly provides that the Tribunal is bound by the rules of natural justice. It is a fundamental principle of such rules that a party is entitled to a fair hearing. In the present case it is submitted the plaintiff did not receive a fair hearing having regard first to the context in which the Tribunal imposed the requirement which it did and second to the consequences of such requirement.

64. Insofar as the context is concerned it is apparent from the transcript of proceedings that although the issue of the adequacy of the acoustic and landscape buffer to the freeway was raised by the Tribunal with the parties, it was at no stage suggested that a 25 to 30 metre buffer requirement might be imposed. Given the fact that it was the Tribunal which raised the issue of the buffer as such and the fact that the debate concerning it did not at any point identify for the parties the possibility that a 25 to 30 metre buffer might be imposed, the context in which the Tribunal imposed the requirement gives rise to a serious question as to whether the plaintiff was accorded the procedural fairness.

67. Insofar as the consequences of the Tribunal's buffer requirement are concerned, an examination of the proposed development plan demonstrates that such consequences are of substantial significance.

70. The plan provides for 14 residential lots along the northern boundary of the subdivision backing on to the freeway reserve. The lots are generally 610 square metres in size. They have a depth of some 38 metres. It was agreed by the plaintiff and the responsible authority at the hearing before the Tribunal that a buffer strip with a width of 10 metres could be provided to the north utilising the northern most portion of each of the 14 lots. This would have resulted in a reduction of depth of the lots to some 28 metres.

73. The Tribunal's requirement of a buffer strip of 25 to 30 metres width, however, would completely consume the northern row of lots for all practical purposes.

76. In turn the subdivisional layout would require very substantial revision if the northern most road were not to run alongside entirely vacant land to the north. If the northern most road were sought to be relocated 15 to 20 metres to the south within the subdivision, the internal layout of stage 3 of the subdivision would collapse in on itself, fundamentally altering (if not destroying) the dimensions of an internal "loop" road containing 23 lots and the potential separation distance between the two entries into the loop.

79. In these circumstances I have a very real doubt that the requirement imposed with respect to the stage 3 plan can be characterised as a "modification" as the Tribunal's order makes clear it was intended to be.[1] The requirement would effectively necessitate a substantial redesign of the proposed subdivision. The distinction between modification and transformation which governs the power of a responsible authority (and in turn the Tribunal) to amend the content of a permit application by the imposition of conditions, derives from the requirement that proper notice be given of the potential ambit of an approval.[2] It is thus a distinction which emanates from requirements of procedural fairness. In the present context (which is not that of a permit approval) the distinction likewise points to the need to ensure proper notice was given to the parties of the potential ambit of the Tribunal's approval.

82. Whether it be characterised as a modification or not, however, the consequences of the change to the development plan proposed by the Tribunal are so significant in my view that such change could not as a matter of procedural fairness be the subject of requirement without the parties being given an opportunity for submissions with respect to it and if necessary the opportunity to adduce further evidence.

85. The obligation to provide procedural fairness is a flexible one which must respond to the particular circumstances of the case. As Mason J said in Kioa v West[3]:

"What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting ... "

89. In the present both the context in which the Tribunal imposed the requirement in issue and its consequences dictated a need to give the parties a hearing with respect to the proposed requirement. The proposed requirement had substantial adverse implications for the plaintiff (and gave rise to significant uncertainty for the responsible authority). The parties should have been given the opportunity to address it.

92. In Bond v Australian Broadcasting Tribunal (No. 2)[4] Wilcox J stated at 663:

"A person potentially affected by the outcome of an inquiry is entitled to understand the nature of the inquiry and the issues being investigated; otherwise meaningful participation becomes impossible."

96. It is apparent from the transcript that the parties did not understand during the hearing that the Tribunal had in mind the possible imposition of a requirement for a 25 to 30 metre wide buffer. There was no meaningful participation offered to them with respect to this possibility.

99. In Rosebud Village Pty Ltd v Amos & Anor[5] Young CJ considered a case in which the Tribunal refused a permit for a residential subdivision on a ground relating to the potential effect of major electricity powerlines on future residents. This ground had neither been raised prior to the hearing nor argued at the hearing. Neither the permit applicant nor the other parties had been given the opportunity to be heard as to it. In the circumstances the Chief Justice held that there was a denial of natural justice which vitiated the decision. Young CJ stated at 406:

"It appears to me, however, that, as I have said, the appellant did not have an opportunity of dealing with the matter of the transmission powerlines, and, indeed, the very reasons given by the tribunal suggest that if the matter had been squarely raised in the hearing and an opportunity afforded to the developer to present evidence and argument upon the question, there might well have been some discussion or modification, even, of the present proposed plan of subdivision. It is not difficult to sympathise with the tribunal, which is of an expert nature, advancing its views as to the desirability or otherwise of a particular development, but the fact that the tribunal is of an expert nature cannot alter the fundamental requirement of the law as expressed in the statute to which I have referred that the rules of natural justice are to be obeyed and where there is a departure from those rules, the decision will be vitiated. In saying that, I make no criticism of the tribunal beyond the necessary criticism that it departed from the rules of natural justice. In particular, I express no view whatever as to the merits of the case which are not in any way before me and upon which I have formed no view at all. My only concern is with the legal question whether the proper procedures have been followed, and if they have not, the course that should be taken to correct the departure."

103. In my view these observations are apt to the circumstances of the present appeal. Although the issue of need for a buffer strip was raised with the parties in a general way, and addressed by them specifically by reference to agreement between them to provide a 10 metre buffer strip, the possibility of a 25 to 30 metre buffer strip was not raised at the appeal. The imposition of the requirement for such a strip in all the circumstances of the case constituted a denial of natural justice.

106. In the circumstances the order of the Tribunal will be set aside and the matter remitted for rehearing by a differently constituted division of the Tribunal.

[1] cf Addicoat v Fox (No. 2) [1979] VicRp 37; [1979] VR 347 at 363.

[3] [1985] HCA 81; (1985) 159 CLR 550 at 584

[4] (1988) 84 ALR 646

[5] (1989) 68 LGRA 403