Victorian Civil and Administrative Tribunal|2000-11-30

Burnside Properties Pty Ltd v Melton CC [2000] VCAT 2326 (30 November 2000)

Planning List; Melton Planning Scheme; s.149B Planning and Environment Act 1987; Residential 1 Zone; Development Plan Overlay; Development Plan; application of State and Local Planning Policies; Melton East Strategy Plan; approval of Development Plan; whether decision to approve reached in accordance with law.

Certificate of Title volume 9412 folio 526 being land on the north side of the Western Highway and east of Caroline Springs Boulevard, Caroline Springs

1. The Tribunal declares that the decision of Melton Shire Council dated 29 November 1999 to approve a Development Plan for the Caroline Springs Community Sporting Club (Restricted Place of Assembly) on the land contained in Certificate of Title volume 9412 folio 526, being land on the north side of the Western Highway and east of Caroline Springs Boulevard, Caroline Springs, was invalid.

2. Costs are reserved. The parties have liberty to make application for an order for costs within one month from the date of this order.

Mr I Pitt of Best Hooper, Lawyers, appeared on behalf of the Applicant.

Mr T Montebello of Maddock Lonie & Chisholm, Lawyers, appeared on behalf of the respondent (responsible authority).

Mr E Stokans, consultant to Russell Kennedy, solicitors, appeared on behalf of Landstrom Holdings Pty Ltd and Delfin Limited (formerly Property Group Ltd) on the first three days. Mr R Osborn QC appeared with Mr Stokans on the last day.

1. This Application was brought by the Applicant, Burnside Properties Pty Ltd, under Section 149B of the Planning and Environment Act 1987 ("the Act") seeking a declaration that a decision of the Melton Shire Council ("the Council") as responsible authority under the Melton Planning Scheme is invalid.

2. The decision in issue is the Council's decision of 29 November 1999 to approve a Development Plan for a "Community Sporting Club" at Caroline Springs pursuant to Clause 43.04 of the Melton Planning Scheme.

3. This decision is referred to by two dates. The date shown in the Application is the date on which the decision of the Council was made; but the actual approval stamp was placed on the document described as Caroline Springs Development Plan - Western Highway Community Sporting Club May 1999 on 3 December 1999, and that date is also used.

4. The dispute to which this Application relates concerns a vacant parcel of land at Caroline Springs, a new suburb of Melton East.

6. The Applicant identified itself in the Application as "the owner and developer of nearby land which includes the site of a planned community activity centre which has been planned and is being developed in reliance on the land use structure in the Melton East Strategy Plan 1997......"

7. The Council as responsible authority is a respondent, as the decision maker whose decision is under challenge. Two other persons were accepted as respondents. These were Landstrom Holdings Pty Ltd, being the owner of the subject land, and Delfin Limited (formerly Delfin Property Group Ltd), a joint venturer with Landstrom in the development of the Caroline Springs estate. A statement of grounds on which these companies intended to rely had been given; and neither the Applicant nor the responsible authority objected to their becoming parties to the Application.

8. It became evident during the hearing that the parties did not distinguish between the interests of the two companies, but identified both with the interest of Delfin Limited. I will refer to "Delfin" to cover both the companies, unless both are referred to separately in the context.

9. By agreement between the responsible authority and the Applicant, the responsible authority presented its case first. Mr Montebello called no witnesses, although he did rely on part of the statement of the evidence of Mr Milner, which had been filed and served along with statements from the other witnesses prior to the hearing, pursuant to directions. He tendered relevant documents, including parts of both the current and former Planning Schemes, the Melton East Strategy Plan, Local Structure Plans, with a commentary on the documents by way of submission, and a formal written submission. The other parties were invited to inform the Tribunal if any of the documents presented in this way were unfamiliar to them, and if they needed to have time to consider any such documents, but they did not find it necessary to take advantage of this opportunity.

10. The Applicant is the owner of a proposed hotel site, for which Permit no.TP11492 has been issued, on the north west corner of the Western Highway and Westwood Drive, well to the east of the subject land.

11. Pursuant to directions, statements of expert evidence were filed and served prior to the hearing. The Applicant relied on the evidence of Mr David Whitney, consultant planner, of Perrott Lyon Mathieson Pty Ltd and Mr T W Biles, consultant planner, of Contour Consultants Australia Pty Ltd.

12. Delfin relied on the evidence of Mr Robert Milner, consultant planner, of Coomes Consulting Group Pty Ltd and Mr Simon V Rumbold of Jebb Holland Dimasi, a consultant in property and market analysis.

13. Mr Rumbold also prepared a second statement, which was filed and served before the fourth hearing day. This contained material specifically about the nature of the facility and why its operator would prefer a highway location. It was accepted subject to Mr Pitt's objection that although the evidence of the planners addressed material taken into account by the Council in reaching its decision, and whether or not its decision was reasonable, there was no justification for accepting Mr Rumbold's second statement. The material was not before the Council at the relevant date.

14. Despite the evidence in chief having been served before the hearing, Mr Stokans applied to have Mr Whitney ordered out during Mr Biles' evidence. Mr Pitt opposed the application on the grounds that this order was rarely given in the case of opinion evidence, and that Mr Stokans' witness had been present during Mr Biles' evidence. The Tribunal rejected the application, on the ground that if Mr Whitney were to modify his opinions as a result of anything he heard during oral evidence, the Tribunal could benefit from his further consideration of the matter.

15. In opening, Mr Pitt described his client's case as depending on the sole ground that the Council, in reaching its decision on 29 November 1999, had failed to take into account something that the Planning Scheme stated must be considered. The planning merits could only be considered on the issue of whether a declaration should be made. He explained that his client had filed material as a basis for showing how it was affected, i.e. as a matter of demonstrating its standing.

16. The other parties did not contest the Applicant's standing. Indeed, Mr Montebello submitted that the Council wished to obtain guidance from the Tribunal with respect to the issue of consistency of the Development Plan with the Melton East Strategy Plan, as it expected that its decision would be challenged one way or another, if not under Section 149B of the Act, then by some other means. However, the debate as to the nature of the proceeding and the extent to which the grounds had been adequately expressed led to amendment of the Applicant's grounds at the commencement of the hearing.

17. Mr Pitt also submitted that Delfin had conceded that its Development Plan was defective, by lodging a new Development Plan (dated March 2000) with the Council. Mr Stokans denied that this was the case, but wished to have reference made to the Amended Development Plan in the amended grounds of Application. After some debate about the wording of the proposed amendment of the Applicant's grounds, however, Mr Stokans agreed that the Tribunal could not deal with a decision that the Council had not yet made as to whether the Amended Development Plan should be approved in the context of this Application.

18. At the end of his client's case, Mr Pitt raised the question of a relationship between one of the football clubs associated with the proposed development and one of the Commissioners who comprised the Council. Commissioner Hyett, who moved that the proposal be approved, had been a director of the Williamstown Football Club. He was still shown as a director in the ASIC search that Mr Pitt had obtained. There was no reference to this relationship in the record of the meeting tendered to the Tribunal. Mr Montebello was able to clarify the situation as at the relevant date by tendering a copy of Mr Hyett's resignation as a director of the Club and its acceptance, dated 28 and 29 June 1999, prior to either of the meetings at which this proposal was considered by the Commissioners. The letter of resignation included a statement that Mr Hyett now considered it appropriate to put his energies into assisting football at a Regional level.

19. I indicated that I did not consider this a matter relevant to the present Application. There has been no attempt to vitiate the Council's decision on the ground that the decision itself was bad under the Local Government Act 1989, or that there was bad faith or an ulterior purpose.

20. Caroline Springs is a major residential development situated on the northern side of the Western Highway, in the area between Westwood Drive and Clarke Road, forming a new locality in what was formerly part of Rockbank. The new residential estate immediately to the east of Caroline Springs is now known as "Burnside". Both Caroline Springs and Burnside are suburbs within the area described in the Planning Scheme as Melton East. Both are very substantial developments, with an impressive array of incidental community and commercial facilities, either already in place or included in the plans. Caroline Springs, however, still has a large site on the Highway the future of which the owner hoped to resolve by the approval of the Development Plan to which this Application relates.

21. Mr Milner, who gave evidence on behalf of Delfin, stated that the Caroline Springs project has been comprehensively planned, and will be the largest "planned" community in Melbourne. He described the development as taking place within the framework of a Caroline Springs Strategy Plan lodged with the Council in November 1997, and a Local Structure Plan for the Southern Neighbourhood of Caroline Springs approved by the responsible authority in November 1997. He stated that the Local Structure Plan did not address proposed Activity Centres. The Melton East Strategy Plan does.

22. The Caroline Springs estate, as described on behalf of Delfin, is to have within two years of commencement, 500 homes occupied by 1,200 people; 8 local and village parks; a 600 sq.m. shop and petrol filling station; 4 hectares of lakes; 3 primary schools with 250 students; a multi-media centre/library; a sport and recreation centre, children's services and childcare centre; and two bus services. It is apparent from the photographs tendered by the parties that there are already numerous occupied homes, and Mowbray College has a substantial school already completed and operating.

23. Caroline Springs is entered off the Western Highway by way of Caroline Springs Boulevard, a broad road laid out with a central tree plantation separating the traffic lanes, and nature strips on both sides. The entry point intersection is signalised. An entry feature identifies the estate by name. There is no other direct access point from the highway, according to the layout plan; all dwellings are accessed off the Boulevard by a series of local and collector streets, so that the houses nearest the Highway will front onto cul de sacs, turning their backs to the Highway, even where they have a double frontage.

24. Stage 1 of Caroline Springs includes three residential "villages" and some commercial and community facilities. Mr Milner described the location of the Burnside Activity Centre to the east of Caroline Springs, adjacent to the intersection of the Western Highway and Westwood Drive, which is one of three community Activity Centres planned for Melton East. The Burnside Activity Centre was approved by Council in February 1998, and comprises 8.8 hectares of retail, non-retail, peripheral sales, sporting facilities and so on. Mr Milner also referred to a small neighbourhood centre known as the Brookside Centre based on education and recreation facilities, established on the corner of Caroline Springs Boulevard and Rockbank Middle Road North, to the north of the subject land.

25. On the west side of Caroline Springs Boulevard is a grassed reserve with a lake. On the east side is a site for which approval has been given to a convenience store, petrol station, associated car parking, and a small Country Fire Authority depot. Work had recently commenced on the convenience store site. The next adjoining parcel to the east from that site is the subject land

26. The dispute has arisen by virtue of the Planning Scheme controls which deal with the development of Melton East, including Caroline Springs. They envisage that development will be controlled not by means of a requirement for a permit alone, but through consistency with a "Development Plan". This is a term which is not defined in either the Act or the Planning Scheme. The Victoria Planning Provisions format Planning Scheme, however, makes provision for a "Development Plan Overlay" to be adopted as one of the Overlays which provide an additional layer of control in addition to the provisions of the zone affecting the land: see Clause 41 of the Planning Scheme.

27. The subject land is located in a Residential 1 Zone. Western Highway is in a Road Zone Category 1. To the west of Westwood Drive, fronting the Highway beyond the Caroline Springs property, is a Mixed Use Zone, with a Business 1 Zone directly to its north on the west side of Westwood Drive. This is now the Westwood Drive Activity Centre. The Development Plan Overlay covers all the land to the north of the highway and west of Westwood Drive in the zones to which I have referred. Land to the south of the Highway is zoned Industrial 1.

28. The Melton Planning Scheme is a Victoria Planning Provisions format scheme; but a similar provision also applied in the Planning Scheme which the current scheme replaced.

29. The Council has treated the proposed use as a "Restricted Place of Assembly" under the Table of Uses. This is defined in the scheme as:

"Land used by members of a club or group, or by members' guests, for religious or cultural activities, entertainment, or meetings. It may include food and drink for consumption on the premises, and gaming."

30. Messrs Whitney and Biles accepted the "Restricted Place of Assembly" characterisation in their evidence.

31. The application for approval of the Development Plan emphasised that what was proposed was a "community" sporting club. Council resolved to approve it as a "Community sporting club (Restricted Place of Assembly)", referring both to how Delfin described the proposal, and how Council had characterised it under the Planning Scheme. Mr Montebello argued, consistently with the formal characterisation, that what was proposed is an entertainment use. Entertainment can serve a community function.

32. A "Restricted place of assembly" falls within the "Leisure and recreation group" of uses in the "nesting diagrams" in Clause 75 of the Planning Scheme. However, certain aspects of the overall proposal fall into the "Retail premises group". These are all the aspects which are within the definition of "food and drink premises", which includes hotel, restaurant and tavern. "Tavern" is defined as:

"Land used to sell liquor for consumption on the premises. It may include accommodation, food for consumption on the premises, entertainment, dancing, amusement machines, and gambling."

33. This appears to cover many of the activities intended. It differs from a "hotel" as defined by the ability of a hotel to sell liquor for consumption off the premises. "Hotel" is defined as:

"Land used to sell liquor for consumption on and off the premises. It may include accommodation, food for consumption on the premises, entertainment, dancing, amusement machines, and gambling."

34. "Gaming premises" is a use included in its own right in the "Retail premises group", as well as coming in as part of a Tavern or a Hotel.

35. It is these aspects of the proposal that appear to be the most important part of it, rather than the "function centre" aspect. Nor does the connection with football clubs seem to be an issue in determining the proper characterisation of the nature of the land use, as they would not be conducting any sporting activities there. The reference to "elite sporting clubs" is not intended to limit the use of the facilities to members of such clubs, but to make use of the club name to attract commercial patronage.

36. Mr Pitt also drew attention to the need for a permit under Clause 32.01-2 for "Food and Drink Premises" (which is defined to include both hotel and restaurant uses), and under Clause 51.27 for use to sell or consume liquor where a licence is required under the Liquor Control Act 1987.

37. Under Clause 52.28-1, no permit is required to install and use a gaming machine in a restricted area if that area does not exceed 25 per cent of the gross floor area of the premises where liquor may be consumed. Under Clause 52.28-4, no permit is required to install and use a gaming machine in an unrestricted area. Both provisions are subject to a number of qualifications.

38. It is common ground that this proposal would be a Section 2 use in the zone, needing a permit under Clause 32.01-1 of the Planning Scheme. It also needs a permit for the construction of a building for a Section 2 use: Clause 32.01-5.

39. But the issues here are not directly related to the grant of a permit; they are limited to the approval of a Development Plan for land including the subject land.

40. Clause 43.04 contains the provisions of the Development Plan Overlay. As the Applicant has challenged the validity of the decision on broad grounds, encompassing the entire Clause and the relevant Schedule, I will set out the Clause in full (save for the title and identification reference and the Notes), in the form in which the parties addressed it for the purposes of this Application, together with Schedule 1, which is the relevant Schedule to the clause. Clause 43.04 provides as follows:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To identify areas which require the form and conditions of future use and development to be shown on a development plan before a permit can be granted to use or develop the land.

To exempt an application from notice and review if it is generally in accordance with an incorporated plan.

43.04-1 Requirement before a permit is granted

A permit must not be granted to use or subdivide land, construct a building or construct or carry out works until a development plan has been prepared to the satisfaction of the responsible authority.

This does not apply if a schedule to this overlay specifically states that a permit may be granted before a development plan has been prepared to the satisfaction of the responsible authority.

· Be generally in accordance with the development plan.

· Include any conditions or requirements specified in a schedule to this overlay.

An application under any provision to this scheme which is generally in accordance with the development plan is exempt from the notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the appeal rights of Section 82(1) of the Act.

The development plan may consist of plans or other documents and may, with the agreement of the responsible authority, be prepared and implemented in stages.

· The proposed use and development of each part of the land.

· Any other requirements specified for the plan in a schedule to this overlay.

The development plan may be amended to the satisfaction of the responsible authority.

41. The Notes referred only to the State Planning Policy Framework and the Local Planning Policy Framework. Relevant local policies and strategies must therefore be found in Local Planning Policy Framework. There are a number of them, to which I shall return.

Prior to the issue of a planning permit for any use or development, a Development Plan must be prepared to the satisfaction of the Responsible Authority.

· Detailed plans of sub areas within the plan as well as supporting documentation which assists to clarify the nature of development proposed.

· The relationship of the land to existing or proposed land uses on adjoining land.

· The proposed subdivision lot layout, the road network, pedestrian and bicycle network and open space and drainage reserves.

· The layout of any proposed Activity Centre.

· The proposed land uses for sub areas within the locality.

· The location of all vehicle and pedestrian access ways within, to and from the development.

· The location and layout of all car parking areas, loading bays and access to and from these areas.

· Details of all landscaping development proposed, including the types and species of plants and any arrangements for the maintenance of the landscaping after it has been established.

· The management of vegetation to minimise fire hazard and to ensure the safety or people and property.

· The stages (if any) by which the development of the land is proposed to proceed.

Before deciding to approve a Development Plan, the responsible authority must consider:

· The existing and possible future development and use of the land and of contiguous or adjacent land.

· The need for appropriate setbacks from residential areas.

· The provision of water, sewerage, drainage and electricity services.

· The orderly planning of the zone, including the management of traffic, the provision of pedestrian ways and open space.

· The need for financial or other contributions towards the provision of reticulated service infrastructure, community and social facilities and services, transport infrastructure and services.

· The provisions of the Melton East Strategy Plan and municipal planning policy. [emphasis addded]

43. Clause 43.04-1 does not create any new permit requirements within the Planning Scheme; it only applies if a permit is required. Whether or not that is the case depends on the zone provisions (or the provisions of any other relevant overlay). The same applies to Schedule 1.

44. The significance of the Development Plan, as far as the Applicant is concerned, lies in the following -

· The form and conditions of future use and development are supposed to be shown on an approved development plan before a permit can be granted to use or develop the land; and

· Once a Development Plan has been approved, a permit application which is generally in accordance with it will be exempt from notice of a permit application (Section 52(1)(a), (b) and (d)), notice of the responsible authority's decision (Section 64(1), (2) and (3), and also from the right of an objector to review the responsible authority's decision to grant a permit (Section 82(1) of the Act).

45. Under a VPP format Planning Scheme, the reference to an "incorporated plan" calls up Clause 81. This provides:

"The documents listed in the schedule to this clause are incorporated documents under section 6(2)(j) of the Planning and Environment Act 1987. These documents are of local application.

If a document is not included in the table or the schedule, it is not an incorporated document."

46. The Development Plan is not an "incorporated plan" listed in Clause 81 of the Planning Scheme. The Manual for the Victoria Planning Provisions published by the Department of Infrastructure for the guidance of (among others) Councils as Planning Authorities preparing their VPP format Planning Schemes, states (at p.43) that "If the plan contains specific requirements which affect whether or not a permit is required, it should generally be an incorporated plan." The development plans to which Schedule 1 applies do not affect whether or not a permit is required, so strictly speaking, do not fall within that guideline. Other development plans in other schedules may work differently.

47. Nor is Schedule 1 a Schedule in which it is stated that a permit may be granted before a development plan has been prepared to the satisfaction of the responsible authority. On the contrary, it reiterates the need for a Development Plan to be prepared to the satisfaction of the responsible authority before a permit may be issued.

48. The "purposes" may assist in interpretation, but they do not change the permit and approval requirements. The operative part of Clause 43.04 is that a permit must not be granted until a development plan has been prepared to the satisfaction of the responsible authority. It is the Council's approval of the development plan that opens the way to the issue of a permit. Once the development plan has been approved, the exemptions from third party rights apply, and the reference in the "purpose" clause to exemptions related to "an incorporated plan" cannot alter the fact that the exemption clause itself refers only to "the development plan", without any requirement that it be incorporated.

49. The issue in this Application is therefore related to the power of the Council to issue a permit for the proposal, and to the exemptions from third party rights that would normally attend a permit application under the Act, potentially affecting the rights of the Applicant as owner of a rival site, or a site that could be used for at least some of the elements included in Delfin's development proposal, and in a more general way, as the owner of a large estate with a Western Highway frontage in close proximity to the subject land.

50. Prior to the hearing, further and better particulars of Ground 1 were provided. At the hearing, the Tribunal amended the grounds on which the Application had been brought by the addition of a third ground, at the request of Mr Pitt, who appeared for the Applicant. Mr Montebello and Mr Stokans, who appeared respectively for the respondent responsible authority and the two companies comprising "Delfin" (Landstrom Holdings Pty Ltd and Delfin Limited) consented to the amendment. The grounds are now:

1. The said Development Plan does not contain the matters which a development plan must show pursuant to Clause 1.0 in Schedule 1 to the Development Plan Overlay applying to the land.

1.1.1 The development plan does not detail plans of sub-areas within the plan as well as supporting documentation which assists to clarify the nature of the development proposed.

1.1.2 The only detail provided is a textual description of the nature of the use.

1.2 Beyond showing the juxtaposition of various components (without detailing the relationship) the documentation does not show the relationship of the land to existing or proposed uses on adjoining land.

1.3 The plan gives no indication of pedestrian or bicycle networks or access.

1.4 The justification of the proposal includes reference to other proposed or permitted commercial facilities which would constitute components of an Activity Centre but the plan does not show any layout of the overall Activity Centre.

1.5 The proposal does not show the location of vehicle and pedestrian accessways within, to and from the development.

1.6 The proposal does not show the location and layout of all car parking areas, loading bays and access to and from these areas.

1.7 The proposal does not show details of all landscaping development proposed, including the type of species of plants and any arrangement for the maintenance of landscaping after it has been established.

1.8 The proposal does not show the management of vegetation to minimise fire hazard and to ensure the safety of people and property.

1.9 The proposal does not show the Stages by which the development of the land us proposed to proceed.

2. Burnside Properties Pty Ltd is the owner and developer of nearby land which includes the site of a planned community activity centre which has been planned and in being developed in reliance on the land use structure in the Melton East Strategy Plan 1997 which specifies the location of activities centres at different hierarchical roles including centres on land forming part of the Caroline Springs development but not in the location the subject of the Development Plan for the Community Sporting Club at Caroline Springs purportedly approved by the Council on 29 November 1999.

3. That the responsible authority, taking into account all relevant considerations and disregarding all irrelevant considerations, could not, having regard to the provisions of the Melton Planning Scheme, validly have approved the "Caroline Springs Community Sporting Club Development Plan".

51. The Council contested the Application on the grounds of which notice had been given by letter dated 6 March 1999, not seeking to amend in response to the Applicant's amendment. But its notice of grounds did include a general statement of disagreement with the further and better particulars of Ground 1 of the Application, as well as:

· The approved development plan is within the framework established by the Melton East Strategy Plan.

· The Melton East Strategy Plan does not set in stone the precise course of the future development of the large area to which it applies.

· The information contained in the development plan as approved satisfies the provisions of the relevant schedule of the Melton Planning Scheme.

· The development of the land as proposed is justified by regard to a detailed consideration of the strategic land use issues that arise.

· The applicant's motivations in seeking the determination are based more on maintaining a competitive advantage in respect of its proposed development of adjacent land than on achieving desirable strategic outcomes.

· The level of detail provided in the development plan is sufficient or will be provided by reference to Condition 1 of the development plan approval. (deleted 3/4/00).

· Whatever information is allegedly not provided is not of such a nature as would be of any real relevance to the Applicant (Burnside).

· The mechanism by which review of the decision has been sought is an inappropriate mechanism given the nature of the decision and the manner in which third party review rights have been sought to be limited by the Melton Planning Scheme.

52. The grounds on which Delfin and Landstom both relied, by leave granted on 9 February 2000 (and omitting the request for further and better particulars contained in its notice) were:

1. The development plan satisfies the requirements of Clause 1 in Schedule 1 to the Development Plan Overlay insofar as it is relevant.

2. The Caroline Springs Development Plan is consistent with the goals and objectives of the Melton East Strategy Plan in that it will:

· Provide a range of benefits in keeping with the extent of the area and its potential future population;

· Provide opportunities for employment generating use in an appropriate location;

· Provide a structure which allows equitable accessibility of residents to community facilities, employment and services;

· Promote economic development, employment opportunities and self sufficiency by seeking to meet the social, economic , recreational and cultural needs of the community;

· Result in the timely provision of recreation facilities for present and future inhabitants of Caroline Springs.

3. The Development Plan is consistent with State government policy as expressed in Living Suburbs, Retail Development Policy and Clause 17.01-2 of the Victoria Planning Provisions.

4. The Melton East Strategy Plan is a strategic document, not a prescriptive control which contemplates alternative structures provided that the overall goals and objectives of the Melton East Strategy Plan are met.

5. The Melton East Strategy Plan does not prescribe what type of development is desired on properties abutting the Western Highway.

6. The proposed community sporting club will complement the existing retail activities on Western Highway and provide a community benefit for the emerging population at Caroline Springs.

7. The proposal will provide a community benefit by providing a buffer between the Western Highway and residential development to the north.

8. At best the proposed development will amount to a neighbourhood activity centre and as such will compete with the Burnside Community Activity Centre in the retail hierarchy.

9. The proposal will provide a net community benefit.

10. The application is a thinly veiled commercial objection.

53. It can be seen that Delfin wished to address the merits of its proposal. Insofar as this material addresses the considerations properly available to the Council in making its decision to approve the Development Plan, it is taken to address Ground 3 of the Applicant's grounds. Beyond that, material related to the merits of the proposal is taken to be directed primarily at the exercise of the Tribunal's discretion whether to grant a declaration or not, if the decision which is the subject of the Application is found to be invalid.

54. In opening the case for Delfin, despite the range of matters included in its statement of grounds, Mr Osborn put the fundamental issue as "whether it was open to Council to approve the development plan". He submitted that the Applicant had to show that the responsible authority had not acted according to law. Mr Osborn submitted that the substance of the Applicant's argument raised issues of both form and substance.

55. By the time the evidence had been completed, Mr Pitt and Mr Osborn were able to agree that the essential issues were whether it was open to the Council to make the decision it did, and whether the document before it could be characterised as a Development Plan at all.

56. Section 149B of the Act provides as follows:

(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.

57. The grounds on which the exercise of a discretionary power of approval by the Council acting as responsible authority in applications made under the Act could be successfully challenged were stated by Ashley J in Kantor v Murrindindi (1997) 18 AATR 285 at 308-9, and may be summarised as:

· the decision was not one which a responsible authority acting reasonably could have made;

· In making the decision, the responsible authority had taken irrelevant matters into account;

· The responsible authority had failed to take relevant matters into account;

· In determining what matters were relevant, the judgment of Mason J in Minister for Aboriginal Affairs & Anor v Peko-Wallsend & Ors [1986] HCA 40; (1985-1986) 162 CLR 24 at 39-42, gave the proper approach. The factors which may be taken into account in exercising an unconfined discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.

58. "Reasonableness" is determined on the "Wednesbury" test: see Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305 by Gibbs J at 328:

"Even if the council has not erred in this way an opinion will nevertheless not be valid if it is so unreasonable that no reasonable council could have formed it (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223, at pp 228-229 and 233-234."

59. An Application under Section 149B is not subject to the same restrictions as to the interest of the applicant in the subject land as an Application under Sections 149 and 149A, under which only a "specified person" as defined in Section 148 may apply.

60. It is, however, subject to the restriction that only a presidential member may exercise the Tribunal's power. The Tribunal was originally constituted to include Mrs Baird, who is a qualified and experienced planner but not a presidential member. After some discussion as to possible ways to retain the benefit of Mrs Baird's expertise, the attempt was abandoned and she retired.

61. Tribunals such as this one, established by legislation the model for which was originally the Commonwealth Administrative Appeals Tribunal, are "obliged by statute, when reviewing a primary administrative decision, to be satisfied whether or not that decision was, on the material before the Tribunal, the correct or preferable one": see Transport Accident Commission v Bausch [1998] 4 VR 249 per Tadgell JA at 263, and the cases there referred to.

62. But this Application invites the Tribunal to find not that the Council's decision to approve the development plans was wrong on the merits, but that it is invalid. The limitations on the remedy available to the Applicant under Section 149B mean that instead of the Tribunal reviewing the application for approval on the basis of the evidence before it and making the "correct or preferable decision" on that evidence, the Tribunal is required to consider the legal adequacy of the decision making process.

63. The evidence before the Council when it made its decision will in most circumstances be the relevant material on which to determine whether the decision was or was not invalid. There is an exception to this rule, in that where it is necessary for the Tribunal to make a finding on whether the Council erred as to the jurisdictional facts, the Tribunal must answer the question on the evidence before it, rather than the evidence before the Council: Enfield v DAC [2000] HCA 5; (2000) 106 LGERA 419 at 428, 433 and (per Gaudron J) 439.

64. The nature of the jurisdiction exercised by the Tribunal under Section 149B of the Act was described by Deputy President Macnamara in Castik Investments Pty Ltd v City of Stonnington (1999) 3 VPR 46 (at 54) as follows:

"A somewhat more extended form of the declaratory power is now to be found in Section 149B of the Planning and Environment Act 1987 bestowing the jurisdiction upon this Tribunal. There is a similar jurisdiction to be found in Section 185AA of the Local Government Act 1989 empowering the Tribunal to make declarations as to the validity of special rate and special charge schemes. ......... In their form they represent the declaration of existing legal rights, not a process of merits review at all. The history of these provisions demonstrates that they were intended to move determinations of legal right in planning matters to the relevant planning tribunal rather than the courts. That is, the provisions are concerned solely with issues of venue not to change the substantive law against which rights were to be determined."

65. Deputy President Macnamara said of the contrast between the administrative review and the declaration proceedings in Castik Investments Pty Ltd v City of Stonnington (at 54):

"This form of review stands in contrast to judicial review which has been provided historically by means of superior courts' general declaratory and injunctive powers and under the prerogative writs and now at Commonwealth and State level under special statutes such as the Administrative Decisions (Judicial Review) Act of the Commonwealth. A judicial review does not focus upon the merits of the decision but rather whether the decision-maker has misdirected himself in law, acted without jurisdiction or in excess of jurisdiction etc....."

66. Strictly speaking, the form of remedy available by way of declaration in the Supreme Court that has been transferred to this Tribunal by Section 149B is not "judicial review", but one of the equitable remedies available to restrain apprehended breaches of the law and to declare rights and obligations under the law. The joint judgment of the majority of the High Court makes this distinction and refers to the role of the declaration, together with the injunction, in the development of modern administrative law in Enfield v DAC [2000] HCA 5; (2000) 106 LGERA 419 at 427; [2000] HCA 5. This correction of the description of the remedy does not alter the test to be applied to determine the validity of the decision.

67. The wide discretion available to the Court with respect to the equitable remedy of the declaration has also been made available to the Tribunal. In considering whether a declaration would be appropriate in the circumstances, the Tribunal is governed by its general duty under Section 97 of the Victorian Civil and Administrative Tribunal Act 1998, which provides that "The Tribunal must act fairly and according to the substantial merits of the case in all proceedings." This does not mean "review the case on its merits" in the sense of applying the principles of administrative review to every proceeding, but to act according to the substantial merits of the case rather than being limited by forms and technicalities, whatever the type of proceeding.

68. It follows from the nature of the proceeding that the law applied to determine an Application for a declaration under Section 149B of the Act is not the law as it stands at the date the Tribunal reaches its decision, which is a hallmark of the review jurisdiction; but the law as it stood when the decision was made.

69. Two changes have been made since the decision which is the subject of this Application. As already mentioned, a new "Amended Development Plan" for the Western Highway Community Sporting Club, dated 27 March 2000 was delivered to the Council by Delfin, and copies were given to the other parties before the hearing. The Tribunal has dealt with the Application on the basis of the Development Plan as it stood when the Council approved it, not the Amended Development Plan.

70. Second, a change has been made to the text of the "purpose" clause for the Development Plan Overlay. The last paragraph of the purpose has been changed, and no longer refers to an "incorporated" plan. This change has occurred since the end of the hearing, and has been disregarded.

71. A brief description was contained on p.1 of the "Caroline Springs Development Plan -Western Highway Community Sporting Club" document prepared by Delfin for submission to the responsible authority, and dated May 1999. This states:

"The land will be used for a Community Sporting Club. It is currently intended that this community facility will be jointly formed by the Western Bulldogs and Western Jets Football Clubs. A community fund will be set up to be financed from profits generated from club activities on this site.

The club will include a range of high quality food and beverage facilities plus function rooms as well as some gaming facilities (under 25% of proposed licensed floor area). The proposed use will be detailed further at the development plan stage, as required by the Melton Planning Scheme.

A detailed description of the proposed Community Sporting Club is provided in the accompanying MacroPlan Report."

72. The MacroPlan Report was attached to the Development Plan submission. It added the following general description:

"The facility will be located on 1 hectare of land, adjacent to the proposed supermarket and petrol filling station and will consist of a club/sports bar, function area, bistro/restaurant, extensive garden area, gaming area and Tabaret. The Community Sporting Club will be managed by a joint partnership between the Western Bulldogs (AFL), Western Jets (VFL) and Williamstown Football Club (VFL)."

73. Further details (which were relied on by Mr Montebello in his submission) were then set out (pp 3-4):

· A building area of approximately 1,750 sq.m. on 1 hectare.

· Function and conference area for 400 patrons with "break out" rooms.

· Gaming room with 150 sets and 105 machines being less than 25% of the area of the facility.

74. It can be seen that although this proposed facility is associated with sporting clubs, no actual sport will take place on the proposed site. A substantial function and conference facility is included, apparently without any intended limitation to sporting-related activities. There is some limited provision for children's playing areas; but there will also be substantial areas where children will not be able to go, associated with gaming and liquor licensing restrictions. The emphasis of the proposal appears to be on functions, food and gaming, on a large scale. The first Council officer's report dated 12 August 1999 also referred to a community fund, which would be financed from profits generated by the club activities. It is not stated whether this fund was proposed to be anything more than the (State government) Community Support Fund that would be fed by gaming revenues under Section 138 of the Gaming Machine Control Act 1991.

75. Further information contained in the MacroPlan report (at p.4) reveals that it is proposed that the Western Bulldogs, the Western Jets and Williamstown football clubs would be joint partners in an equal agreement to provide the "sporting" facility. It is stated that this is -

"........ a unique opportunity to harness the benefits of the site within the future area of Melbourne and within the western regional zone of the AFL and VFL."

76. The report also states that this joint agreement would -

".... ... provide a community sporting facility providing community benefit to Caroline Springs and at a broader level throughout the western metropolitan area."

77. Reference is also made to the substantial membership base in the western region for both Australian and Victorian Football Leagues; and that the site is centrally located in the Leagues' regional zone.

78. The siting of the proposal is explained (at p.5 of the MacroPlan report) as follows:

"The siting of the sporting club on the Western Highway is crucial in terms of commercial viability. The Clubs consider the major benefits of the site as follows:

1. the highway exposure offers visibility to the venue as a social/function facility.

2. The location allows identification and profiling of the AFL and VFL which is considered crucial for elite sporting clubs.

3. A commercial facility of this size could only be developed on a high profile site.

4. The facility is not surrounded by residential properties, which minimised any potential detrimental impact on residents."

79. This recognises that the proposed use is a substantial commercial facility, which will seek to draw patronage from the region. In my view, this is a more realistic characterisation of what is proposed than attempting to justify it as a local "community" use, even though some members of the local community will no doubt wish to go there. It is quite plain that the last thing Delfin wants is to locate this use within the estate; it is expressly stated that the Western Highway frontage is crucial.

80. Delfin submitted that the proposal was not intended to be a substitute for the non-commercial community facilities that would be provided as part of the Caroline Springs development. It would provide an opportunity for early provision of a quality restaurant/bistro, functions rooms, employment opportunities, gaming, and a "sporting focus" within the area. This "sporting focus" would be provided by way of football club facilities at Brookside, for a club such as the Western Jets to train. Brookside is situated to the north of the subject land, in a more central location within Caroline Springs, and has a community centre in which the three schools and formal playing fields are to be located.

81. This development is not, therefore, to be considered as the sport and recreation centre listed as part of the facilities to be provided at Caroline Springs within two years of commencement. The Community Sporting Club is primarily intended to serve a catchment wider than Caroline Springs or even the Melton community; it is not a sporting venture, nor a club in the restrictive sense that there would be a selective membership process excluding people who wished to enter; but in view of the degree of detail that was presented to the Council before it made its decision, I do not consider that there was any possibility that it was misled about the nature of the development it had been asked to approve.

82. The reference to the absence of residential properties requires qualification. When the proposal was submitted to the Council, the neighbouring uses were shown as follows on the Development Plan:

South - Western Highway, with Industrial (IN3) on the south side of the highway.

83. The Development Plan submission was initially the subject of a negative report by a planning officer. This report, dated 12 August 1999, was tendered by Mr Montebello. The Council (comprised by the Commissioners) adjourned consideration of the proposal to enable discussions to be held with Delfin and objectors. As a result, changes were made to the proposal. These are shown in the bold print below:

South - Western Highway, with Industrial (IN3) on the south side of the highway.

West - supermarket and petrol station (the supermarket also being recognised as a large "convenience store" for some purposes, such as the application for approval of it).

84. The only real difference between the proposals is that instead of a possibility of commercial development to the east of the subject land, stretching towards another commercial development further to the east down the highway, the subject land was separated from other commercial land to its east by a residential development, which is under construction at present. As all the land in both the subject site and the site to the east of it was zoned Residential 1, no change of zoning was in question; only the future use designation on the Development Plan.

85. This change fulfils the Council's objective of preventing ribbon commercial development along the highway. At the same time, it places Residential development on two sides of the subject land, which is a disadvantage as far as the "siting advantages" identified by the report are concerned.

86. The other major objections to the proposal that were originally identified by the Council were that -

· the site failed the Land Use objectives of the Melton East Strategy Plan by failing to provide a structure which allows equitable accessibility of residents to community facilities, employment, services.... and

· the proposed development is sited in a location that is inconsistent with the adopted principles of the Melton East Strategy Plan. The use would be more appropriately located within the Town Centre on the estate, not on the edge of the development in an area that is not a defined Activity Centre.

87. The proposal was seen as a serious deviation from the Melton East Strategy Plan and the Municipal Strategic Statement. The Development Plan was considered to have failed to provide a comprehensive justification for an alternative land use structure. The development was therefore inconsistent with planning policy and did not warrant Council approval. The Council officer reporting on the proposal recommended that Delfin be advised that the Council would be more likely to support such a facility in the Town Centre, where such large scale commercial operations would naturally complement other higher order retail and community functions.

88. In both versions of the proposal, the actual plan illustrating the proposal and surrounding land uses is called an "Indicative Site Plan". The Development Plan can comprise both plans and other documents: Clause 43.04-3.

89. This plan was the subject of much criticism. In the form presented to the Council on each occasion, it was accompanied by other plans, so that its context was clearer than it would have been if it had stood alone. The contents list for the Development Plan shows that a sales brochure accompanied this site plan on submission to the Council. Copies of a locality map and the sales brochure were attached to the officer's reports, together with the Land Use Structure plan and Indicative Activity Centre Framework plan from the Melton East Strategy Plan. I will try to describe what the two versions of the Indicative Site Plan did contain, as well as some of the things they did not (which are described in the respondents' statements of grounds, but were elaborated at the hearing).

Burnside Properties Pty Ltd v Melton CC [2000] VCAT 2326

At a glance

Court

Decision date

Source

Judgment (693 paragraphs)

Burnside Properties Pty Ltd v Melton CC [2000] VCAT 2326 (30 November 2000)

Parties

Legislation Cited (5)

Cases Cited (3)