Victorian Civil and Administrative Tribunal|2003-01-08|Before: Mr J, Precinct J

Canet v Brimbank CC [2003] VCAT 13 (8 January 2003)

Application for a declaration under Section 149A Planning and Environment Act 1987, whether endorsed plans endorsed plans are in accordance with permit, nature of declaration proceedings, relevant matters, meaning of "generally in accordance with".

Mrs M Canet and Mr Karvelas representing a number of other persons.

Mr C Canavan, QC with him Ms M Foley of Counsel instructed by Minster Ellison, Lawyers.

1. This is an application for a declaration made by Mrs M Canet and others under Section 149B of the Planning and Environment Act 1987. The Applicant's application stated as the reason for appeal:

"The planning permit was approved on the condition that the plans be in general accordance with Plan No 99848/T/01/P5 prepared by Grogan Richards Pty Ltd. This plan showed approximately 30 units. The plan proposed by Sargood Developments for 61 units is considered to be very different to that which was lodged and approved by Grogan Richards Pty Ltd."

2. The application was expressed to be a group submission on behalf of objectors wishing to be represented as a group at VCAT detailed in the table appended to the application. The application addressed what appeared to be a petition signed by approximately 270 persons. Mrs Canet advised that she had made to all the persons signing aware of the nature of the application being made to the Tribunal.

3. When issues of costs were raised, Mrs Canet modified this position and advised she was not able to say that the application was made on their behalf if the outcome might involve an order for costs, and she proceeded with the application on behalf of herself and Mr Karvelas.

4. Planning permit P980145 was issued by Brimbank City Council ("Council") on 1 March 2000 pursuant to a decision of the Tribunal constituted by Senior Member Byard and Members O'Leary and Rickards dated 29 January 2000.

"Use of the land for the purposes of restricted retail premises (not being confined to automotive parts and accessory sales), trade supplies (in Precinct J and having a total floor area for a single use in Precinct 1 in excess of 1250 square metres), landscape gardening supplies, convenience restaurant (in Precinct 1), takeaway food premises (in Precinct 1), restaurant (in Precinct 1), dwellings across the entire Wentworth Drive frontage, signs on the endorsed plans, and,.subject to condition 2, clearance of native vegetation on the basis that said precincts 1 and 3 accord with such precincts as defined in the relevant parts of the planning scheme, in accordance with the endorsed plans hereinafter provided for and subject to the following conditions."

1. Before development in respect of a stage commences (see Condition 8), plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with Plan No 99848/T/01/P5 prepared by Grogan Richards Pty Ltd and Plan SK-01, P2 prepared by Bird de la Couer Architects Pty Ltd and any other plans endorsed by the Responsible Authority pursuant to this permit and in relation to the proposed development of the dwellings must be prepared in accordance with the requirements of the Good Design Guide for Medium Density Housing Revision No 2 April 1999, but modified to show:

(a) Appropriate signage directing all delivery and service vehicles to only use Melton Highway and Kings Road.

(b) An area of 31 meres x 31 metres adjacent to the Melton Highway frontage, situated to the west of the proposed 50 seat fast food restaurant depicted on Plan No 99848/T/01/P5, which is to be set aside and managed for the retention of native grasslands in accordance with condition 2.

(c) Elevations for the building depicted on Plan No 99848/T/01/P5 as "Peripheral Sales".

7. Mrs Canet was one of the objectors to the permit application and before the Tribunal.

8. Before the Tribunal substantial agreement was reached between the parties. In paragraph 3 of its decision the Tribunal said:

"The situation was reached by the end of the hearing where there was, indeed, substantial agreement between the parties, except for Mrs Canet and to a degree, Mr Heaviside. Mrs Canet has staunchly resisted the grant of a permit at all stages, and she maintained that position to the end."

9. The site then under consideration by the Tribunal was much larger than the land subject to this application. The site included the whole of the land from Melton Highway to Wentworth Drive west of Kings Road and embraced:

* the site of the Bunnings Store, timber yard and nursery,

10. That site included the strip of land subject to this application ("the residential land"). It is located on the south side of Wentworth Drive extending from the intersection of Wentworth Drive and Kings Road for a distance of 461.3 metres to the west with a frontage of 28.9 metres on Kings Road. It varies in depth between 20 and 30 metres. It has an overall area of 1.92 hectares. It slopes gently from west to east. It is currently vacant grassland. The residential land separates the commercial outlets and carparks from the residential area to the north.

11. The commercial areas and carparks have been developed. The residential land is yet to be developed.

12. The Grogan Richards Pty Ltd plan Drawing No 99048/T/01/P5 marks the residential land as "medium density residential development" and shows footprints of 11 buildings, each separated, a pedestrian walk from Wentworth Drive to the commercial area in the centre. The plan is conceptual and shows some landscaping. No details appear as to number of units, height or number of storeys of buildings or any dimensions.

13. Bunnings was the original applicant for the permit. Queensland Insurance Company (QIC) later acquired the land. After the development of the commercial area QIC sold the residential land to the Respondent, Sargood Developments Pty Ltd.

14. The Respondent submitted plans for 61 attached residential dwellings on the residential land fronting Wentworth Drive consisting of the following built forms:

* 9 pairs of semi-detached dwellings (continuous built form as attached by single garages)

15. The development includes a terrace of 5, 3 storey dwellings situated at the eastern end of Wentworth Drive at the corner of Kings Road. All other dwellings are 2 storey in height.

16. 21 dwellings predominantly towards the western end of the residential land will gain vehicular access from Wentworth Drive. The remaining 40 units will have vehicular access and parking facilities off an access lane to the rear of the development which is also used as a service lane for Bunnings and the peripheral sales outlets.

17. Those dwellings with vehicular access from Wentworth Drive would have rubbish

18. collected from Wentworth Drive. The remaining units will have rubbish collected from the rear service lane.

19. Plans for the residential development were originally submitted by the Respondents to Council in May 2002. Informal notice was given to surrounding neighbours calling for comments, the plans went through a series of minor amendments but the number of units and built form remained largely unchanged.

20. Council resolved on 13 August 2002 to support the proposed development subject to minor amendments and the submission of further information. A series of amended plans and further information was submitted and on 22 October 2002 Council resolved to endorse the plans.

21. Condition 1 of the permit required that the development of the dwellings must be prepared in accordance with the requirements of the Good Design Guide. Council submitted that it was satisfied the development met this requirement and produced a detailed analysis.

22. The Applicants at the hearing sought to contest whether the plans satisfied this requirement.

23. The declaration application did not raise this issue. A discussion was held as to whether they would seek leave to amend the declaration application to include a consideration of this requirement including whether the Respondents would need an adjournment to prepare their case (not having been given notice of the Applicant's intention to raise the issue) and costs. The Applicants elected not to seek an amendment and did not proceed with their submissions in relation to the Good Design Guide.

24. The Respondents had filed and served expert reports from:

* Mr P Borrelli of SJB Planning Pty Ltd as to planning,

24. Submissions were made to the Tribunal by Mr Roan for Council, by Mrs Canet and Mr Karvelas for the Applicants and by Mr Canavan QC and Ms Foley for the Respondent.

25. The Tribunal has inspected the site and the locality.

26. I have referred above to the declaration sought by the Applicants.

27. As indicated above the hearing did not proceed to examine the requirements as to whether the plans were in accordance with the Good Design Guide.

28. Mr Canavan submitted that the question should be:

"That the decision of the City of Brimbank on 13th August 2002 to endorse the plans of Amnon Weber dated 21st August 2002 is invalid on the ground that the said plans are not generally in accordance with Plan no. 99848/T/01/PS prepared by Grogan Richards."

29. Argument took place as to the nature of the review before the Tribunal, the point being that the Planning and Environment Act does not allow objectors to a planning permit a right of review on the merits of whether an endorsement of plans by a Responsible Authority pursuant to a permit is in accordance with the permit.Section 149 of the Act confines that right to "Specified Persons"as defined in Section 148 of the Act, and the applicants do not fall within that category of persons. The question is whether the proceeding should be one of "judicial review" where the validity of the Council decision is challenged, and the question the Tribunal should then consider is whether the Council could reasonably have made the decision to endorse the plans".

30. A relevant decision submitted by Mr Canavan to the Tribunal was a decision of Mr Liston and myself in E. Gray v Delatite Shire Council and Gibson [2001] VCAT 2001 dated 31 October 2001 - Application Nos 2000/073710 and 2000/078254.

31. This was an application for a declaration in relation to a decision by a Responsible Authority to approve whether a proposed cattle feedlot was in accordance with the Victorian Code of Cattle Feedlots.

32. In paragraphs 38, 39 and 40 the Tribunal said -

"38. Clause 35.01-1 of the planning scheme provides that a Cattle Feedlot is a Section 1 or permit not required use providing it satisfies a number of conditions including the contentious condition that the Feedlot "must meet the requirements of Clause 52.26". The requirements to be met under Clause 52.26 are "all use and development of cattle feedlots must comply with the Victorian Code for Cattle Feedlots - August 1995. The Code must be complied with to the satisfaction of the Responsible Authority".

39. Having regard to the limitations of the Tribunal's declaratory powers under Section 149B set out above in the context of Clause 52.26 of the planning scheme, it is considered that the declaration must in some way relate to the opinion which must be formed by Council as to whether or not it is satisfied that the Code is complied with. A question to be resolved is what is the nature of the review being undertaken by the Tribunal, is it a merits review where the Tribunal stands in the shoes of the Council, and must form its own opinion as to whether or not it is satisfied that the Code is complied with, or is it a judicial review where the Tribunal must decide whether or not the Council's decision that it was satisfied that the Code was complied with was lawful, in the sense that it was a decision which could reasonably have been made.

40. Section 149(1)(a) of the Act provides for the review of a decision of the Council that something must be done to its satisfaction, such as the decision which the Council must make in the context of Clause 52.06. However, the right to apply for the review of such decisions is limited to "specified persons" as defined in Section 148 of the Act. The applicants in this case are not specified persons, and therefore cannot apply for the review of the Council's decision under Section 149. It follows from this that to interpret the power conferred on the Tribunal under Section 149B as being a power for a general merits review, would have the effect of rendering Section 149, and its limitations on standing, ineffective. It is considered that this is not the intention of the legislation. The declaratory power under Section 149B is a form of judicial review, and therefore the question of whether or not the proposed feedlot complied with the Code is a relevant question, that only insofar as it might demonstrate, or fail to demonstrate, that the Council's decision was reasonable. Ms Foley's depiction of the issue to be resolved by the Tribunal is to be preferred."

33. I adopt what was said by the Tribunal in that case. In my view, the question to be determined in this case is not the question asked by the Applicants or proposed by Mr Canavan, but whether or not the Council's decision that it was satisfied that the plans were generally in accordance with the Grogan Richard plans was lawful, in the sense of whether it was a decision which could reasonably have been made.

34. This approach is consistent with the structure of the legislation. The permit gives the Responsible Authority the role of determining the questions of whether the plans are in accordance with the Grogan Richards plan. Whether there is a right of review of the merits of that decision is regulated by the legislation. There is no provision in the legislation for an application for a review to be brought by the Applicants in this case, as objectors. The only persons who have a right to bring an application for a review are the "specified persons" under section 149(1), which do not include the Applicants.

35. The greater part of the Applicant's submission related to merits issues and the manner in which the proceedings before the previous hearing at the Tribunal in relation to the grant of the permit were conducted. Issues canvassed included:

* The basis of the planning grounds on which the objectors originally opposed the commercial development;

* The level of trust in the relationship between the objectors, QIC and the Council;

* A change in Council's position when QIC acquired the land when Council decided to support the commercial development rather than oppose it;

* Council "trading" its position for a substantial development contribution for a library site;

* QIC dropping its objection to the commercial development when it acquired the land;

* VCAT's approval of the Grogan Richards plan was dependant on the resident's acceptance of the plan;

* Aspects of the plans of the Grogan Richards plan being equivalent to undertakings given to the residents;

* Council processes at a Council meeting when they approved the plan;

* The expected profit and financial returns from the proposed development.

36. The question raised by the declaration rests on the Permit as the starting point. The question is whether the endorsed plans are generally in accordance with the Grogan Richards plan, or alternatively, whether the Council could reasonably have made a decision that the endorsed plans or that the plans approved by the Council were in accordance with the Grogan Richards plan.

37. In this matter the Tribunal cannot revisit the merits issue considered by the Tribunal in reaching its decision to approve the grant of the permit in the terms it did. The issues raised by the Applicants in my view relate mainly to that and are not relevant to the determination of this application. Those merits issues have been already determined by the Tribunal.

38. In particular, the questions of the relationship between the objectors, Council and the developers and whether any undertakings were given is not a relevant consideration. It appears the objectors maintained their opposition to the grant of the permit and did not consent to the Tribunal decision. There was no agreement with the objectors.

39. Even if undertakings were given resulting in an agreement with the objectors and resulting in a Tribunal decision, a breach of the terms and conditions of that agreement might only be relevant if its terms and conditions formed a part of the conditions of the Permit.

40. Mr Canavan submitted that the leading decision on the phrase "generally in accordance with" is City of South Melbourne v Raftopoulos (unreported) Application for Review No 1999/34936 dated 7 February 1989, by Senior Member Byard) in which the Tribunal stated:

"General accordance with plans allows much greater variation from them than would accord with the same plans.

I understand Mr. Molesworth to suggest that these two expressions amount to the same thing, and that the inclusion of "generally" is merely to allow for more and insignificant variations that must inevitably occur with the actual construction of a building.

If he is saying that I do not agree with him. Carpenters, brick layers and such tradesman (sic) do not construct buildings with the precision of a watchmaker. That would be impossible. A building is still built in accordance with plans and specifications, although there may be minor and insignificant variations. The Responsible Authority would not have sought an enforcement order because of a dimension being out by a millimeter in 30 metres. If it did its application would fail on the basis that the law takes no account of trifles. (Apart from that, the Tribunal has a discretion in granting and enforcement order and would not grant one in such circumstances). Tiny immaterial variations do not mean that a structure does not accord with the plans.

General accordance allows much greater latitude. Whether there is general accordance with the plans in a particular case is a question [of] fact that must be judged in accordance with the facts and circumstances of that case. Some cases may be clear whilst others are doubtful. The line between general accordance and with non-general accordance may be hazy in some circumstances, and reasonable people may differ as to the correct classification in some instances, (in O'Keefe v Shire of Perth [1964] HCA 37; 10 LGRA 147 a somewhat similar situation was described).

41. He submitted that this passage was quoted with approval in Connors v Yarra City Council & Patterson 1998/49223 (unreported), and that in Lowther Hall Anglican Grammar School v Mooney Valley City Council, (31 August 2000), unreported, Senior Member Byard commented that "generally in accordance with" did not mean exactly or precisely in accordance with.

42. I accept these submissions as to the meaning of the phrase.

43. In the Lowther Hall case, plans were required to be in general accordance with the master plan. In the process of considering the arguments put by Council that the proposal was not in general accordance with the master plan, the Tribunal commented at 7:

"It [figure 4 of the Master Plan] is not drawn to scale and it has no dimensions. The only means of discern [ing] the location of particular points, or the approximate size and location of features, is to view them in regard to other features, but such other features are also not drawn to scale or located in correct positions. The sketch can be no more than a general indication of what is intended and where it is intended.

If figure 4, as part of the Master Plan, is considered in isolation, and a proposal is required only to be in general accordance with it, then a good deal of latitude is allowed as to proposals. A proposal only has to be in general accordance with something which, of itself is only a general indication. On this basis, something quite different in design, si e or location is called for if it is to be outside the concept of general accordance."

44. I agree with the Respondent's submission that the authorities establish that the following principles must be applied to determine whether a development is generally in accordance with a permit or plans.

(a) General accordance is a question of fact to be judged on the facts and circumstances of each case, and

(b) the less detail and precision there is in the primary document or documents, the more flexibility is given by the phrase "generally in accordance with".

45. Ms Canet's submitted that the Grogan Richards plan showed specific design elements:

* Substantial variation in front landscaping scope;

* A continuous row of upper canopy trees to the rear.

46. She submitted that these were essential elements of the Grogan Richards plan which the endorsed plans did reflect. Rather she said the endorsed plans maximised dwelling density and developer profits. She submitted that a "start again" approach was necessary to produce plans that reflect these elements.

47. She submitted the development height should be based on the original objective, which is to screen the commercial development at the rear and that double story only is necessary to comply with this.

48. She also submitted that traffic management systems were necessary to address traffic issues and that the total number of units should only evolve following the satisfactory treatment of the factors she had listed.

49. Mr Canavan submitted that the concept plan was not intended to indicate the form of the residential development, but to indicate the area where residential development was to occur.

"(a) the plan purports to be a concept plan which generally indicates the location of the various proposed uses on the site. As one would expect, having regard to the origin of the plan, the main details relate to traffic and parking. It may well be said that as multi unit designers Grogan Richards are very good traffic engineers, it would be extraordinary if the Applicant and the Tribunal were relying upon a Grogan Richards traffic oriented concept to designate the form of residential development along the northern side of the development;

(b) The preamble to the permit specifically refers to dwellings across the entire Wentworth Drive frontage:

Use of the land for purposes of restricted retail premises (not being confined to automotive parts and accessory sales), trade supplies (in Precinct J) and having a total floor area for a single use in Precinct I in excess of 1250 metres), landscape gardening supplies, convenience restaurant (in Precinct I), takeaway food premises (in Precinct I), restaurant (in Precinct I) dwellings across the entire Wentworth Drive frontage_, ... (Emphasis added)_

(c) It was specifically contemplated by the wording of the condition that further plans for the proposed development of the dwellings would be prepared at each stage and submitted to the Responsible Authority. This is apparent from the wording of condition 1 itself which states:

Before development in respect of any stage commences (see condition 8), plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. When approved the plans will be endorsed and will form part of this permit. The plans must be drawn to scale with dimensions and three copies provides. The plans must be generally in accordance with Plan No 99848/T/P5 prepared by Grogan Richards Pty Ltd [sic - incorrect plan number] and Plan SK-01, P2 prepared by Bird de la Coeuer Architects Pty Ltd and any other plans endorsed by the Responsible Authority pursuant to this permit and in relation to the proposed development of the dwellings must be prepared in accordance with the requirements of the Good Design Guide for Medium Density Housing Revision No 2 April 1999, but modified to show:

(d) The concept plan fails to provide necessary details of the following matters -

* The scale of the development. There is no reference to the scale of the plan. The dimensions of the residential area are not indicated on the plans;

* The 'Area Analysis' at the bottom of the plan does not refer to the residential area, other than to nominate a category of 'balance of site';

* No elevations of the proposed dwellings is provided with the plan;

* The number of dwellings to be located on the site is not stated;

* The height and number of storeys of the dwellings is not defined;

* The floor plan and design aspects of the residential proposal have not been provided;

* Details of the colours and finishes to be employed are not given.

(e) The residential area on the Concept Plan takes up only a relatively small portion of the overall plan area and has all the indications of being an afterthought. The plan is titled: 'Concept Plan Precincts I and J'. Precinct I is the designated Fringe Commercial Area. Precinct J is the designated Fast Food Area.

This is no doubt why the residential area depicted is lacking in detail - the plan was never meant to define to any meaningful extent the design of the residential area. The specific detail of each stage of the development was to be approved by the Responsible Authority when the plans for that stage were submitted as required by conditions 1 and 8 of the permit.

Conversely, the number of car spaces, the traffic works required and the layout of the Bunnings Store are depicted in considerable detail;

In fact the inclusion of residential development on the subject site was an amendment made to the original midway through the original proceeding. Originally, the loading docks for the Bunnings development backed onto Wentworth Drive. The inclusion of medium density housing provided a further setback of the Bunnings development and buffered the existing housing on Wentworth Drive.

(f) The Tribunal's determination clearly contemplated that the final form of the development would be in the form of a row of dwelling son Wentworth Drive along both its sides and otherwise removing a direct interface between residential and commercial land uses, and the Melton Highway and creating a visual buffer between Bunnings and residential development south of Wentworth Drive. This is supported by the following extract from the reasons for orders at 10:

At the hearing on 16 December 1999, it had been anticipated that, apart from clarifying certain points in relation to conditions, that the issues in the case would be found to have been resolved. However, the Queensland Investment Corporation had acquired the site and come to certain commercial arrangements with the Applicant Bunnings Building Supplies Pty Ltd. The final form of the development is to include a row of dwellings along the rear of the site on Wentworth Drive. Although that street is, in planning terms, the interface between the residential properties to the north and commercial land between the street and Melton Highway, the row of dwellings on the site will extend residential uses further toward the Highway and maintain a residential character for Wentworth Drive along both sides.

The Tribunal's reasons specifically foreshadowed further amendments to the development and the submission of additional plans to the Responsible Authority for approval.

51. I accept these submissions and consider that the material before the Tribunal supports the propositions that:

* The Grogan Richards plan was developed to facilitate negotiations between the parties to resolve the previous Tribunal decision.

* It envisaged Wentworth Drive as a continuous residential Street.

* The residential development was designed to buffer the Bunnings site from the residents to the north of Wentworth Drive.

* The condition indicated that the dwellings were to be "across the entire Wentworth Drive frontage" and were to be a row of dwellings.

* A 2 or 3 storey height is appropriate in order to screen the residential areas from views of the commercial developments.

52. My conclusion is that the Council decision to endorse the plan was reasonable in the circumstances and nothing has been put to me to indicate that the decision was invalid. Further, I find that the endorsed plans are "generally in accordance with" the Grogan Richards plan.

53. For these reasons the declaration application is refused.

Environment Act 1987

Canet v Brimbank CC [2003] VCAT 13

At a glance

Court

Decision date

Before

Source

Judgment (114 paragraphs)

Canet v Brimbank CC [2003] VCAT 13 (8 January 2003)

Parties

Legislation Cited (1)