Charnley Glen Pty Ltd v Boroondara City Council [2000] VSC 340

Supreme Court of Victoria|2000-08-28|Before: Balmford, J.

The application which the appellant made to the Council as responsible authority, and from which this proceeding arises, was an application for a permit to subdivide the subject land into two lots, the intention of the appellant being to construct a single dwelling on each lot after subdivision. The conditions in part relate to that intention, and it is clear that the Council was aware of that intention at the time when it dealt with the application. Because the lots are greater in area than 300 square metres, the effect of clause 32.01-3 of the planning scheme is that if the plan of subdivision is approved, the appellant will not require a permit to construct those dwellings, provided that they comply with the prescribed provisions of Vic Code 1.

The Senior Member said at paragraphs 16 to 20 of the Reasons:

This proposal is really aimed at achieving a dual occupancy . . .

Having regard to the adverse comments that appear in a number of cases and notably the High Court decision of Pioneer Concrete (Qld) [Pty] Ltd v Brisbane City Council (1980) 145 CLR 485 . . . against the practice of piecemeal or partial applications in relation to a whole proposal, one might take the approach adopted to be suspect. Why should the Applicant seek mere subdivision as an initial step when the ultimate objective is a dual occupancy? I pose that as a rhetorical question, although the answer probably is that the Applicant perceives a tactical advantage in doing so.

In Pioneer Concrete, the appellant had applied for a permit to use land as a quarry. It intended to construct an access road on an adjoining piece of land, but did not include that use or that land in its application. A majority of the High Court held that the application should have included both uses. Stephen J with whom Murphy J expressly agreed, Wilson J reaching the same conclusion, said at 500:

.. .. ..where, as here, the use proposed is a single use, no piecemeal series of applications is permissible, at least under the City of Brisbane's town planning measures; instead, that use must be stated in appropriate detail in one application and all the land involved in the use must be the subject of the application.

Even leaving on one side the question as to whether there are relevant differences between the enactments applicable to the City of Brisbane in 1980 and to the City of Boroondara in 2000, I do not find that decision to be relevant in the present case. The procedure adopted by the applicant, as has been said, means that, if successful in its application for a permit to subdivide, it will not need to make a second application for a permit to build houses on the lots because of the terms of clause 32.01-3. That being so, that procedure cannot be described as a "piecemeal or partial" application. Only one application for a permit is necessary, namely the application for a permit to subdivide. It is not suggested that the appellant's aim of building two detached houses on the two lots has ever been concealed from the Council. The form of the permit as proposed to be granted, containing conditions relevant to the use of the subject land for two detached houses, makes clear, as has been said, that the Council took into account that proposed use when dealing with the application.

In any case, if a permit were granted for the building of a house on each proposed lot of the subject land, and those two houses were built, a further permit would be needed to subdivide the subject land into two lots (see paragraph 24 below). Thus it is that procedure, which the Senior Member favours, which would in fact involve a "piecemeal or partial" application.

The Senior Member goes on to note in paragraph 21 of the Reasons that the adoption of the procedure adopted by the appellant:

provides a means of avoiding the various amenity considerations which would apply to a dual occupancy application. Amongst other things it would avoid an assessment of what is really a dual occupancy against the considerations of the Good Design Guide.

The "other things" are not specified, and it can be assumed that the Senior Member's substantial concern relates to the need for assessment of the proposal to build two houses on the subject land against the considerations of the Good Design Guide.

All the amenity issues, and the Good Design Guide itself, are thus effectively avoided in a situation where they are intended to apply.

However, neither the Minister nor the responsible authority has seen fit to require that the Good Design Guide should apply to the construction of a single detached house on a lot of more than 300 square metres in area. Mr Peake, for the appellant, submitted that this could be achieved by the Minister's amending the Victoria Planning Provisions, or by the responsible authority's enacting a Design and Development Overlay. Mr Molesworth, for the objectors, did not suggest that this was not the case.

In this context, I note that the issue is not a new one; there are several decisions of the Tribunal and its predecessor, the Administrative Appeals Tribunal ("the AAT"), in which this question has been ventilated, as to which see paragraph 32 below. Both the Minister, and responsible authorities generally, have had the opportunity to consider whether the Good Design Guide should be applied in this situation. Neither the Minister nor the Council has seen fit to enact any appropriate amendment to the planning scheme, and it must be assumed, therefore, that the Good Design Guide is not "intended to apply" to the construction of a detached house on a lot of more than 300 square metres in area. The intention that that matter be governed by Vic Code 1 is emphasised by clause 16.01-2 of the planning scheme, as appears from paragraph 13 above.

In the context of the application to subdivide, the responsible authority is required to consider the decision guidelines in clause 65 of the planning scheme, the State Planning Policy Framework, the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies, as well as Vic Code 1. As the application for a permit to subdivide was decided in a situation where the Council was aware of the proposal to build two houses on the land, it is to be presumed that, in the making of the decision, all of those matters were considered by the Council in the light of that proposal. The Senior Member did not suggest that the Council omitted to consider any matter which it was required by the planning scheme to consider. His criticism of the conditions imposed by the Council, appearing in paragraph 56 of the Reasons, was that they were "too vague to be effective, or even valid". He did not attempt to redraft them, although it was within his power to do so (as to which see section 85(1)(e) of the Act).

Further, although the responsible authority is not required in this context to consider the Good Design Guide, it is apparent from the permit that it did in fact do so, given that it imposed condition 4(d) providing that the section 173 agreement should require compliance with the relevant requirements of Elements 6 and 7. Other Elements of the Good Design Guide could have been included in the conditions had the Council considered that an appropriate course.

If a dual occupancy permit was granted and a dual occupancy was subsequently constructed pursuant thereto, then the review site would be able to be subdivided without the need of a planning permit so as to provide a separate site with a separate title for each of the houses.

That appears to have been the position under clause 119-2 of the old planning scheme; it is not the position under clause 32.01-2 of the new planning scheme. That clause provides in effect that an application for a permit to subdivide land into lots each containing an existing dwelling is exempt from the notice requirements and objection and review rights provided for in the Act. However, a permit to subdivide is still required, and the granting of that permit is in the discretion of the responsible authority, which is required to take into account the matters set out in clause 32.01-2, as to which see paragraph 10 above.

The Senior Member referred to a number of decisions of the Tribunal and its predecessor the AAT as authority for the proposition that an application for a permit to subdivide should not be considered "without regard to its effect and what it enables and what effect it would have on the achievement of planning policies and purposes". However, there is no suggestion in the Reasons that the Council did not consider the application before it with regard to its effect on planning policies and purposes; and indeed, the terms of the section 173 agreement required by condition 4 of the permit as proposed by the Council to be granted would indicate that it did so. The Tribunal's consideration of these matters, however, is generalised and unrelated to any particular features of the subject land or the neighbourhood generally or the specific concerns of the objectors.

The views of the Senior Member which are set out in paragraphs 15 to 20 above are expressed several times throughout the Reasons in different terms. They are obviously strongly held. Paragraph 32 reads in part:

In my opinion there is a strong reason based on sound principle for refusing the current application. There is an equally legitimate, if not more legitimate, means of attaining a dual occupancy on the site by applying directly for permission for such dual occupancy. When one considers the consequences of granting this proposal in its present form it is found that it defeats the purposes of sound planning. It avoids consideration of the various important amenity issues that should be applicable, including a consideration of the Good Design Guide.

Again, the "various important amenity issues", other than the requirements of the Good Design Guide, are not specified. The view of the Senior Member appears to me to be based on what he considers should be the relevant planning controls, rather than on the controls which are in place.

All this amounts to a strong basis for why this proposal ought to be refused.

The objectors are the owners of the properties to the east (Mr and Mrs Tee) and to the north (Mr Adis) of the subject land. One ground of objection was that the proposal would enable developments of undue bulk. As to this ground, the Senior Member said at paragraphs 59 and following:

59. The building envelopes provide some basis for assessment, but it is really very difficult to adequately assess a proposal that has not been formulated. It seems to me legitimate for the objector to be apprehensive when he has no specific proposal that he can assess. Perhaps he is not really in a position to say whether the as yet unformed proposal will be of excessive bulk, etc., but he is called upon, at least, to embark upon a highly abstract conceptual exercise which is realistically likely to be beyond the scope of most objectors, indeed perhaps beyond most people generally including town planners and Tribunal members.

60. I do not suggest that a 3 dimensional model will usually be necessary or required. Parties and Tribunal members can usually be called upon to read and interpret plans, but here there are no plans for the ultimate developments and we are called upon to deal with intangible and unformulated possibilities. This is not only hard to do but it becomes very hard to be confident of the results of such an exercise.

61. As I have said, it may be satisfactory, in some cases, where the Tribunal is content to proceed on the basis of building envelopes and conditions, but I am not satisfied with those devices in this case. It seems to me to be like pushing a bucket with a flail. The selected instrument is ineffective because it wobbles too much at the joint.

62. Such a task might have to be undertaken if there was no option, but here there is a better and much more satisfactory option namely to refuse the planning permit on the grounds I have indicated.

63. I might add that any assessment of impact on streetscape and neighbourhood character would be pretty difficult with nothing more than building envelopes to proceed upon.

64. I do not mean by all this that building envelopes are not a useful device for some purposes. Merely they are inadequate here.

65. Thus I am not satisfied, as the Tribunal has apparently been in some other cases, that building envelopes and conditions are a satisfactory answer. For the reasons I have given, I have decided that this application should be refused.

The other grounds of objection related to privacy, access, a preference for corner blocks for such a development, and the procedures adopted by the responsible authority in dealing with the application, a matter which the Senior Member rightly found to be irrelevant. Those objections were dismissed in a few words. There was no other reference by the Senior Member, apart from what I have set out in this and the preceding paragraph, to the substantive grounds of the objectors' appeal. His decision appears to have been based entirely on his view that an application for a permit for a two-lot subdivision with the intention of building a house on each lot was inappropriate and should not be permitted because of the possible planning effects, which in his view are incurable. He did not point to any actual, specific effects in the case before him. Nor, as has been said, did he attempt to deal with the planning effects which concerned him by imposing further conditions on the grant of the permit, which would have been within his power.

Mr Molesworth drew attention to the decision guidelines in clause 65 of the planning scheme which the responsible authority is required to take into account when considering an application to subdivide land into lots of between 300 and 4000 square metres (see paragraph 10 above). Clause 65.02 requires consideration of "the existing use and possible future development of the land and nearby land". Accordingly, he submitted this was a proper matter for the Tribunal to take into account, and using its expertise, the Tribunal ought to be accepted as able to determine whether the development most likely to follow would be "squeezed" on to the subdivided blocks. However, the complaint of the Senior Member was of a more generalised nature than that submission allows for.

In summary, the Senior Member did not suggest that the Council did not consider the application in the light of the planning considerations which it was required to take into account; and appears to overlook the fact that in addition to those considerations it also took account of the Good Design Guide, which it was not required to take into account. He did not attempt to redraft the conditions proposed to be imposed by the Council on the permit. His decision deals only briefly with the facts before him, and is based instead on what he perceives as shortcomings in the relevant controls, and potential planning difficulties. The discretion of the Tribunal in matters arising under the Act is extremely wide, but is not unlimited. The necessity to take planning policies and purposes into account does not empower the Tribunal to ignore the operation of planning controls as they exist.

It is clear that there is in the Tribunal a difference in opinion as to whether a permit should be granted for a subdivision into two lots of more than 300 square metres where a house is proposed to be erected on each lot. Three cases were cited to me, decided by Tribunals differently constituted from that with which I am concerned, in which it was found that this was a legitimate process envisaged by the planning controls but that appropriate restrictions, by way of building envelopes and conditions, could be imposed to control development. Simmonds and Tindale v City of Kingston (No 1996/10891) and Craighill Nominees Pty Ltd v City of Boroondara (1996) 17 AATR 109 were both decided by the same member, and Peter Richards Surveying v Moonee Valley City Council [1999] VCAT 2134 by another member. In Craighill the Tribunal said at 116:

The process must be said to be a legitimate one; a fact acknowledged by the other parties. Whether it is considered to be desirable is a matter for the responsible authority to pursue if it is concerned. The Tribunal's analysis leads it to conclude that what is proposed is envisaged by the planning controls.

The extract from the Reasons set out in paragraph 28 above indicates the Senior Member's disagreement with the findings in those three cases. The distinction drawn by him there, and also in paragraph 41 of the Reasons, is that he is unable to be satisfied that "such devices as building envelopes and conditions and 173 agreements could adequately safeguard the situation" (paragraph 41). The Tribunal is not, of course, bound by previous decisions, and every case must turn, ultimately, on its own facts. However, consistency between decisions is always desirable, if it can be achieved, and inconsistency should, where possible, be explained and justified. In this case the Senior Member does not, in my view, explain or justify the distinction which he draws between his view of the effect of building envelopes and conditions and the view of the other Senior Members of the Tribunal whose decisions I have cited, and to which he refers.

A subdivision into two lots of over 300 square metres, with the express intention of building a house on each lot, is permitted by the planning scheme. Given the terms of the scheme, it must be assumed that the Minister and the responsible authority have taken the view that in fact, "such devices as building envelopes and conditions and 173 agreements" are sufficient to protect residential amenity to the extent considered appropriate by those authorities.

It is convenient to set out here a number of well-known statements of relevant principle.

In Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6 at 18 Smith J, with whom Adam J concurred, expressed in the following terms the circumstances in which error by the Planning Appeals Board (a forerunner of the Tribunal) might lead to an order nisi for review being made absolute:

. . .the appellant, in order to succeed in this case, has to demonstrate to the satisfaction of this Court that the Town Planning Appeals Tribunal went wrong in law in arriving at its decision. It would not be enough for the appellant to show that the Tribunal's reasons for its decision are so expressed as to suggest the possibility that the Tribunal proceeded upon a wrong view of the law. This Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.

Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40:

Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.

To quote again from Mason J at pages 40-41 of Peko-Wallsend:

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion and a decision made within those boundaries cannot be impugned.

It is not in issue that failure by an administrative tribunal to consider relevant matters can constitute a vitiating error of law. Whether such a vitiating error has occurred will always turn on the circumstances of the particular case, including the legislative requirements imposed on the tribunal in question. In Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675 Barwick CJ said at 679-80:

Of course, if it is shown that a Tribunal such as the present, in making an order within its competence, has failed to take into account relevant matters, its determination can be reviewed, as in this case, upon an order to review. So much is a settled facet of the relevant jurisprudence. But that course cannot be taken unless it clearly appears that there has been a material error of that kind. Whether or not it has occurred is a matter of fact and not of surmise. Failure in expressing reasons for decision is a very unsure guide to the resolution of such a fact, though in some cases it may be indicative. But, in any case, such a failure to advert to some material circumstance, if it exists, must be weighed in the light of all the circumstances of the proceedings including the nature and extent of the charter of the Tribunal.

That question is further discussed by Ormiston J in Body Corporate Strata Plan No 4166 & Ors v Stirling Properties Ltd (No. 2) [1984] VicRp 73; [1984] VR 903 at 913-4, where his Honour said:

Further, it seems established that failure to consider relevant matters can constitute a vitiating error. As Gowans J observed in Wattle Glen Estates Pty Ltd v MMBW (1974) 40 LGRA 104 at 109:

In this connexion reliance was placed on the limited reasons stated by the tribunal at the time of giving its decision as indicating a failure to give consideration to relevant circumstances and considerations advanced in evidence adduced and in arguments submitted for the appellant. If it were established that there was a failure of this kind, there would be, in my opinion, a miscarriage of discretion vitiating the determination: see Harrison v Mansfield [1953] VicLawRp 60; [1953] VLR 399.

On the other hand some caution must be exercised in reaching such a conclusion. The proper test was stated by Sholl J in Yendall v Smith Mitchell & Co Ltd [1953] VicLawRp 53; [1953] VLR 369 at p 379 as adopted by Adam J in McConkey v McConkey [1960] VicRp 47; [1960] VR 295 at p 300 . . .

The test stated by Sholl J is most clearly set out by him in the following extract from Harrison v Mansfield at 404, where His Honour said, after referring back to Yendall v Smith Mitchell,:

The true principle . . . must be, not that everything relevant which a magistrate does not refer to is to be taken to have been overlooked, or on the other hand, that it is to be taken to have been considered, but that, if something which should have been considered is not referred to, and the nature of the decision suggests some error, which may have been due to that matter not having been considered as it should have been, or if the magistrate's observations indicate, on a comparison of what he said with what he did not say, that the matter in question has not been considered as it should have been, the appellate tribunal may properly draw such an inference, and the magistrate will have no cause to complain if it does so.

(I should point out that the extract of that test as set out in the report of Stirling Properties is incorrect, in the omission of the word "not" before "been considered" where fourth appearing, and is also confusing in other ways.)

In Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works & Ors (1980) 44 LGRA 65, Fullagar J, after referring to Kentucky Fried Chicken and other authorities, said at 67:

. . . the cases show, as one would expect, that decisions of [the Town Planning Appeals Tribunal] are not to be set aside by over-legalistic analyses of reasons stated or by over-zealous drawing of inferences from things not stated.

In Spurling v Development Underwriting (Vic.) Pty. Ltd. [1973] VicRp 1; (1973) VR 1 at 11, Stephen J said:

In approaching the decision of an expert tribunal I must, I think, not only refrain from making up my own mind on the evidence before it, must not only confine myself to inquiring whether on any reasonable view of the evidence the [Town Planning Appeals] Tribunal's decision on a question of fact can be supported, but must also bear in mind that I am concerned with areas in which members of the Tribunal have special expertise and experience which the legislation plainly intends them to employ. I must, therefore, be slow to conclude that on no reasonable view could this Tribunal decide a particular matter of fact as it has.

In this case the Senior Member has made his reasons for decision very clear, and it was not suggested that he has omitted to include any consideration which was in his mind.

Considering the matter before me in the light of those authorities, I find the following errors of law to be such that cumulatively they vitiate the decision of the Tribunal in application number 1999/49583:

the finding that an applicant seeking to subdivide land into two lots each having an area of more than 300 square metres should apply for a permit to erect dwellings on the lots rather than a permit for the subdivision;

the finding that in the circumstances of this case the application for a permit to subdivide rather than a permit to erect the dwellings constituted a "piecemeal or partial" application;

the finding that a permit would not be necessary to subdivide the land once the two houses had been erected;

the taking into account of an irrelevant consideration, namely the procedure adopted by the applicant; and

the failure to take into account relevant considerations, being:

the considerations applicable to an application to subdivide land into two lots each having an area of more than 300 square metres; and

the power of the Tribunal to impose conditions on the permit.

Although the second order of the Tribunal purports to dismiss application number 1999/66882, that application was not considered in the Reasons, save as set out in paragraph 4 above. However, the order of the Tribunal allowing application number 1999/49583 meant that there were no conditions in existence which could be the subject of application number 1999/66882. My finding as to the first application necessarily requires the reinstatement of the second application as having been made on the basis of the errors of law which vitiate the first order.

For these reasons the orders of the Tribunal will be set aside and both applications for review remitted to the Tribunal to be heard and decided again. There will be directions that the rehearing take place before a differently constituted Tribunal, and that the question of the hearing of further evidence be a matter in the discretion of the Tribunal. Counsel may wish to make submissions as to costs.

Body Corporate Strata Plan No 4166 & Ors v Stirling Properties (No. 2) [1984] VicRp 73; [1984] VR 903

Harrison v Mansfield [1953] VicLawRp 60; [1953] VLR 399

Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Peter Richards Surveying v Moonee Valley City Council [1999] VCAT 2134

Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259

At a glance

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Judgment (70 paragraphs)

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Cases Cited (10)