Victorian Civil and Administrative Tribunal|2000-10-31

Cooper v Surfcoast SC [2000] VCAT 2180 (31 October 2000)

Application under Section 87 Planning and Environment Act 1987; Surfcoast Planning Scheme; Residential 1 Zone; Loss of View; Material Detriment; Substantial Disadvantage

Date of Hearing Merits Hearing: Monday 11th and Wednesday 13th September 2000

"4. No plant , equipment, or furniture which is greater in height above the floor of the roof deck than the top of the parapet surrounding that roof deck, may be permanently fixed to the roof deck or the parapet; and no non-fixed furniture or other equipment which is greater in height above the floor of the roof deck than the top of the parapet around the roof deck, may be left on the roof deck when not in use for any period longer than 12 hours, unless that furniture or other equipment is folded down or dismantled in such a way that its height above the floor of the roof deck is not greater than the height of the top of the parapet."

The Tribunal intends to order that the Responsible Authority shall within 60 days of its date of this order, (or such extended period as the Tribunal upon application may allow), pay to the Coopers and the Stevens their costs as expended upon this proceeding as claimed by them (and described in the attached Tribunal reasons), except that the payment to the Stevens is not to include the costs charged to them by Mr Townsend for his attendance at the Tribunal's site inspection.

The Tribunal will deduct an amount for that site inspection as agreed by the parties, and advised to the Registrar within 10 working days of the date of this direction, or failing this as determined by the following process.

If the parties cannot agree on the amount to be deducted for the site inspection, they must advise the Tribunal accordingly no later than 10 working days from the date of this order, and, by the same date, provide submissions as to the appropriate amount. The Tribunal will thereafter consider the adjustment to be made to the costs, and issue its order concerning costs.

Any party may of course request that there be further hearing in relation to this aspect of the matter of costs.

Mr John Cicero, Solicitor of the firm Best Hooper, appeared for the Responsible Authority.

Mr Terry Montebello, Solicitor of the firm Maddock Lonie and Chisholm, appeared for the Requestors. He called Mr Les and Mrs Carmel Cooper, the Requestors, to give evidence.

Mr Matthew Townsend, Barrister, instructed by Arthur Robinson and Hedderwicks, Solicitors, appeared for the Respondent Permit Holders. He called:

* Mr Tim Biles, Town Planner of Contour Consultants (Australia) Pty Ltd to give expert evidence;

* Ms Anna Stevens, the Respondent and co-owner of the land which is the subject of the application; and

* Ms Kerstin Thompson, architect of Kerstin Thompson Architects Pty Ltd, who is the designer of the Stevens' dwelling.

All witnesses with the exception of Mr Biles gave sworn evidence.

Mr Michael Klyne, the owner of a nearby property at 6 Eighth Avenue, attended on part of the first day of hearing but left without making any submission.

1. This application to the Tribunal is made under Section 87 of the Planning and Environment Act 1987. The requestors - the Coopers - being the owners/occupiers of a residential property in Seventh Avenue, in the Point Roadknight area of Anglesea, seek cancellation or amendment of Planning Permit 99/8076, issued on the 15th of April 1999 by the Shire of Surfcoast, for the construction of a two storey dwelling on a lot in Eighth Avenue, Anglesea.

2. The Tribunal having heard the merits of the application, and inspected the subject land on Thursday 14 September 2000, presented a statement of oral reasons for its decision in the matter on Friday 15 September 2000. The following written reasons are an elaboration of the reasons given orally.

3. The two storey dwelling allowed by Permit 99/8076 has largely been constructed, at least so far as its external form is concerned. Most of it went up in a single day - the 27th of June 2000 - as it is of tilt slab construction. That dwelling, which is being built for the respondents - the Stevens - is seaward and downslope of the Cooper property: it sits between the Cooper house and the rocky promontory of Point Roadknight. The new dwelling blocks the view formerly available from the upper level of the Coopers' dwelling to the Point Roadknight rocks and to the bay enclosed by the rocks.

4. The Coopers seek to have the permit cancelled, or at least have the permit amended to alter the form and height of the second storey of the Stevens' dwelling and/or the siting of the dwelling on the land. At the hearing of the application, details of the nature of the requested amendment were provided: the Coopers seek to have the top 1.6m of the walls of the dwelling removed, and the roof deck, which sits within the walls (that act as a balustrade to the roof deck), moved from the northern end of the dwelling to the southern end. Relocation of the dwelling generally to the south-west of its present location is an alternative option.

5. The ground upon which the Coopers rely is that they are persons who ought to have been given notice of the application for permit pursuant to Section 52(1)(d) of the Planning and Environment Act 1987. The Coopers thus rely on Section 89(1) of the Act in bringing the proceeding. It is common ground by the parties that no notice was given to the Coopers.

6. The Point Roadknight area of Anglesea lies to the east of the Great Ocean Road at the southern end of the township. It is a relatively low-density residential neighbourhood -the subject land for example is some 1400sq m in area- developed principally with double storey dwellings. The dwellings are in the main used as holiday homes, but there are some permanent residences such as the Coopers' dwelling. The dwellings sit in a well-landscaped environment. Most of the vegetation is indigenous and of a coastal variety, including Tea Tree. The original vegetation in the area appears to be somewhat less than 6m in height, though residents have introduced some taller trees to the area.

7. The Coopers' dwelling at No. 6 (on the eastern side of) Seventh Avenue is a double storey dwelling with pitched roof constructed in the 1980's. The wall heights of that dwelling are in the order of 5.5m and the overall height is approximately 7.5m. The dwelling contains a large upstairs living space with attached bedrooms, and a smaller living space downstairs with further bedroom and other facilities. The renovations undertaken to the dwelling by the Coopers, who have permanently resided in the house since late 1999, have included introducing additional or larger windows, and expanding the kitchen in an easterly direction into an area formerly occupied by part of a first floor deck on the eastern side of the dwelling. A relatively small first floor deck thus remains on the eastern elevation. There is another larger deck at first floor level on the western elevation of the dwelling and a number of others at ground floor level.

8. The dwelling, which is under construction on the land at No. 11 (on the eastern side of) Eighth Avenue for the Stevens, is a contemporary tilt slab concrete structure. The dwelling is essentially rectangular in shape with a north-south dimension of approximately 14.5m and an east-west dimension of approximately 6m. It has a flat roof. The dwelling is set back some 33m from the site's frontage, and its ground floor level is approximately 1.5m below the level of Eighth Avenue as the land slopes gently in the direction of the sea to the east. The exterior walls of the dwelling have heights of some 7.5m above natural ground level. The internal ceiling height at first floor level for the living room is 4.5m, and for the master bedroom at first floor level in the order of 3.5m. Downstairs bedrooms and living spaces have ceiling heights of 2.4m. A roof deck is accommodated within the dwelling walls, which serve as balustrading to the deck located in the northern third of the building envelope. The subject dwelling has been designed by Ms Kerstin Thompson. She was called by Mr Townsend to give evidence concerning the architectural objectives of the project.

9. To the north of the land owned by the Stevens is a single storey dwelling, and the lot to the south is vacant. To the east, towards the sea, are the rear gardens of properties which face onto the next downslope street. Opposite the Stevens' land on the western side of Eighth Avenue, dwellings are primarily of double storey construction, with decks along their eastern elevation taking advantage of views towards the sea and Point Roadknight. The view from the Coopers' dwelling to the Stevens' site is laterally confined by two of these dwellings on the western side of Eighth Avenue (Nos 6 and 8) which are located approximately 50 to 60m to the north of the Stevens' land. The Coopers' residence is thus between 80 and 100m from the Stevens' land.

10. The subject area of Point Roadknight is at the time of preparing these written reasons affected by the new format planning scheme for Surfcoast Shire. It is a scheme based on the Victoria Planning Provisions. It was gazetted on 5th October 2000 - after the hearing of this matter and the presentation of a statement of oral reasons for my foreshadowed decision on the substantive issues. The parties, however, had earlier anticipated the imminent introduction of the new scheme and included relevant references to it in their submissions to me. I do not believe, therefore, that it necessary to invite any further submissions on the new controls which are as anticipated. In any case, while the current controls are relevant to my decision as to whether it would be just and fair to accede to the Coopers' request, (see especially Section 90A of the Act) those controls are perhaps less critical than those in place at the time of the Council's decision to publicly advertise the permit application and approve it.

11. The Point Roadknight locality is zoned Residential 1 under the new scheme. The zone controls do not impose a requirement for planning permission for the use or development of the affected land for a single dwelling of this type. Under the Significant Landscape Overlay (Schedule 2) which also applies to the area, however, planning permission is required for the construction of a building greater than 5m in height. One of the objectives for the relevant schedule to the overlay is:

"To provide for a reasonable sharing of views of significant landscape features, including views of the ocean and coastal shoreline, coastal forest and mountains, rivers and estuaries, and notable cultural landscape features which form an important part of the amenity of coastal properties."

12. A Coastal Development Policy also applies inter alia to all land covered by the Significant Landscape Overlay in question. It is said at Clause 22.01-2 in a section relating to "view sharing" to be policy that_:_

"Buildings be sited and designed to achieve a reasonable sharing of views between properties of significant landscape features..."

Further it is also said to be policy in relation to building scale, landscapes and view sheds that:

"The height, scale and bulk of buildings will be controlled in order to:

* Preserve the low rise, low impact character of the coastal townships and of development along the Great Ocean Road;...

* Protect residential amenity by encouraging a reasonable sharing of views between new and established properties, particularly where the view is of a significant landscape feature, including views of the ocean and coastal shoreline, coastal forest and mountains, rivers and estuaries and notable cultural features."

"To recognise that views form an important part of the amenity of a property and provide for a reasonable sharing of views of significant landscape features, including views of the ocean, coastal shoreline and native or cultural features."

13. Under the old format Surfcoast Planning Scheme which was in place at the time of the Tribunal hearing and when the Council made its decisions in March-April 1999, the Stevens' land and surrounds were zoned Residential A. In that zone, a dwelling of less than 7.5m in height above natural ground level could have been constructed without the need for planning permission. However, Clause 121 of the Scheme applied an overlay control inter alia to land within the Residential A Zone, which had the effect of limiting buildings to one storey in height except with a permit. There was no purpose described for Clause 121 nor did it contain any particular decision guidelines. The general guidelines of Clause 18 of the Planning Scheme, therefore, were to be relied upon. They directed attention to relevant State, regional and municipal planning policies, the orderly planning of the area, and the effect of the development upon the amenity of the neighbourhood.

14. Mr Cicero advised also that while there were no purposes or decision guidelines in the zone, as a matter of practice, the Responsible Authority had administered the control available under Clause 121 so as to enable it to look at issues such as visual bulk, scale, overlooking and view sharing.

15. He further advised that the Shire had a policy entitled "Surfcoast Shire's Residential Guidelines Policy" against which the Council Planning Officer assessed the application. The officer observed in her report that all relevant aspects of the proposal complied with the guidelines

16. Also, at the time of the Council's decision on the Stevens' application for permit, the proposed new format Scheme had already been on public exhibition. The forthcoming scheme therefore was potentially part of the decision-making context for the Council.

17. The then proposed controls were not identical to those now in place, at least in terms of structure. I was advised that the use of the Residential 1 Zone was proposed, but the subject locality was to be affected by three overlays - two Significant Landscape Overlays (Great Ocean Road and Coastal Environs - SLO1, and Coastal Townscape Character - SLO2); and a Design and Development Overlay (Significant View Sharing - DDO.01). Those overlays were only later combined into the one Significant Landscape Overlay in response to public submissions and the comments of the Ministerial Panel appointed to hear those submissions. Nevertheless, the three overlays then proposed already contained references to the importance of views and set view sharing objectives.

18. The Significant View Sharing Schedule to the Design and Development Overlay, in similar vein to the Significant Landscape Overlay (O2) now in place, had as an objective:

That schedule inter alia imposed the need for permission for buildings and works which were higher than 5m above natural ground level.

The decision guidelines for such applications included:

"* The impact of the proposed buildings and works on the view from another property as a result of the siting, height, size, bulk, colour and design of the building, including the roof.

* The opportunity for a reasonable sharing of views having regard to the extent of the available view and the significance of the view from the properties affected."

19. Schedule 1 to the Significant Landscape Overlay as exhibited included, amongst other things, the same control for buildings and works above 5m in height as the Design and Development Overlay. That schedule also made reference to views to sites, in so far as it required proposals for new buildings to be accompanied by information about the type and colour of external materials so as to enable the Responsible Authority to be satisfied that they would be "compatible with the natural surroundings... to minimise visual impact of structures."

20. Further, at the time of scheme exhibition, a proposed View Sharing Policy was included at Clause 22.05, which was to apply generally along the Great Ocean Road view shed. It was said that the policy basis was as follows:

"The coastline of south-west Victoria offers spectacular coastal landscape views of the ocean, headlands, rugged cliffs, dunes and forests. Taking best advantage of these views is a prime consideration of the design and siting of residential development and is one of the more important factors influencing the residential amenity of properties along the coast. Whilst it is generally recognised there is no right of a view per se, the value placed on views as part of the residential amenity of a property requires that where possible, there should be a reasonable sharing of views.

This policy clarifies the circumstances and conditions in which view sharing will be considered as a legitimate amenity consideration." (My emphasis).

The view sharing objectives were set out as follows:

"To recognise the importance of a view as part of the amenity of a property, particularly where the view is of a particular landscape feature, including views to the ocean and coastal shoreline, coastal forest and mountains, rivers and estuaries and notable cultural landscape features.

To achieve a reasonable sharing of views where the topography or lot size provides the opportunity for a view to be created over a rooftop or between buildings or other screens." (Tribunal emphasis).

In the same vein as the current Coastal Development Policy, it was said to be policy that:

"Buildings be sited and designed to achieve a reasonable sharing of views between properties of significant landscape features..."

21. The provisions of the Planning and Environment Act relating to requests for cancellation or amendment of permits which are relevant to the present application are as follows:

"What are the grounds for cancellation or amendment of permits?

87(1) The Tribunal may cancel or amend any permit if it considers that there has been -

(e) Any failure to give notice in accordance with Section 52 ...

What are the limits on the power to cancel or amend a permit?

88 The power to cancel or amend a permit under this division may be exercised -

(a) if the permit relates to the construction of buildings or the carrying out of other works, at any time before those operations have been completed...

89(1) Any person who objected or would have been entitled to object to the issue of a permit may ask the Tribunal to cancel or amend the permit if -

(a) the person believes that the person should have been given notice of the application for permit and was not given that notice...

(3) The Tribunal may refuse to consider a request under this Section or Section 87 unless it is satisfied that the request has been made as soon as practicable after the person making it had notice of the facts relied upon in support of the request.

Matters which the Tribunal must take into account

90A(1) In determining a request, the Tribunal must take into account the matters set out in Section 84B(I) as if the request were an application for review.

(2) The matters set out in Section 84B(1) are in addition to any other matters, which the Tribunal can properly take account of or have regard to or is required to take account of or have regard to in determining a request.

91(1) After hearing a request, the Tribunal may direct the Responsible Authority to cancel or amend the permit and to take any action required in relation to the permit...

(3) The Tribunal must not direct a responsible authority to cancel or amend the permit on a request under Section 89(2) unless it is satisfied that -

(a) In the case of a request under Section 89(1)(a) the person -

(i) could not reasonably be expected to have been aware of the application for the permit in time to lodge an objection under Division 1; and

(ii) was substantially disadvantaged by the issue of the permit; and

94(2) If a permit is cancelled or amended under this Division the responsible authority is liable to pay compensation to any person who has incurred expenditure or liability for expenditure as a result of the issue of the permit in respect of -

(a) any of that expenditure which is wasted because the permit is cancelled or amended; and

(b) any additional expenditure or liability necessarily incurred in purchasing other land to use or develop in the required manner because the permit is cancelled or amended. ..."

22. Section 52 (as referred to in Section 87(1)(e)) so far as is relevant to this application provides:

"(1) Unless the responsible authority requires the applicant to give notice, the responsible authority must give notice of an application in a prescribed form -

(a) to the owners ... and occupiers of allotments or lots adjoining the land to which the application applies unless the responsible authority is satisfied that the grant of the permit would not cause material detriment to any person; ... and

(d) to any other persons, if the responsible authority considers that the grant of the permit may cause material detriment to them.

(2) A notice under sub-section (1)(d) may be given -

(ii) by publishing a notice in newspapers generally circulating in the area in which the land is situated;

(iii) by giving the notice personally or sending it by post; or

(iv) in any other way that the responsible authority considers appropriate."

23. Section 84B (as referred to in Section 90A(D)) provides a list of matters which the Tribunal may take into account in relation to applications. The section provides that the Tribunal:

"(a) must take into account any relevant planning scheme;

(b) must have regard to the objectives of planning in Victoria;

(e) must (where appropriate) take account of the extent to which persons residing or owning land in the vicinity of the land which is the subject of the application for review were able to and did in fact participate in the procedures required to be followed under this Act before the responsible authority could make a decision in respect of the application for a permit;

(f) must (where appropriate) have regard to any amendment to a planning scheme which has been adopted by the planning authority but not, as at the date on which the application for review is determined, approved by the Minister;"

Section 84B(2) provides that those matters are "in addition to any other matters which the person or body in respect of whose decision the application for review is made could properly take account of or have regard to or is required to take account of or have regard to in making its decision".

24. In that respect Section 60 of the Act is relevant. It lists the matters which a responsible authority is required to consider before deciding on an application. sub-section 1(b) provides that the responsible authority may consider amongst other things:

"(ii) any strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council; and

(iia) any amendment to the planning scheme which has been adopted by a planning authority; and

25. The provisions of the Act at Section 52 and 87 and following give rise to three issues to be determined in this case:

1. Is the Coopers' ground made out? That is, did the Responsible Authority fail to properly exercise the discretion to advertise under Section 52(1)(d)?. This question involves the issue of whether the Coopers can be regarded as persons suffering material detriment.

2. Are the Coopers substantially disadvantaged by the grant of the permit?

3. Would it be just and fair to cancel or amend the permit?

26. These are the only three questions to be determined in this proceeding, as the other "hurdles" to the favourable exercise of discretion in response to the Section 87 application have been conceded by all parties. They include that the Coopers could not have been reasonably aware of the application for permit (Section 91(3)(a)(ii), the application was lodged as soon as practicable (Section 89(3)) and the building is not yet completed (Section 88). I turn now to each of the three main questions.

27. I was advised that when the permit application was made to the Council for the Stevens' dwelling, the application was advertised to adjoining and opposite properties - being Nos. 8, 10, 12 and 12A, 13 and 9 Eighth Avenue, and to the three properties to the rear of the subject land. No objections were received in response to the advertising.

28. The ground upon which the Coopers' rely is that the Responsible Authority failed to properly exercise the discretion required of it under Section 52(1)(d) of the Act by not giving notice to them of the application for the Stevens' dwelling. It was argued that the Authority could not have reasonably formed the view that no persons, other than those notified under Section 52(1)(a), might suffer material detriment.

29. The question of whether the Responsible Authority properly exercised its discretion in relation to advertising of the permit application under Section 52(1)(d) (or at least whether Ms Martin acting under delegation did so), involves two questions:

* did the Authority/Ms Martin consider the matter at all; and

* if they did, was the decision made to not advertise to the wider locality, reasonably open to it/her?

30. With respect to the first question, I do not believe that notice being given to properties across the road from the Stevens' land is evidence that consideration was given to advertising under Section 52(1)(d). The Act distinguishes at Section 52(1)(a) and Section 52(1)(d) between "adjoining" properties and other properties. As was submitted at the hearing by Mr Montebello, while there are various court cases which relate to the matter of what is adjoining land, it can perhaps be said that the "jury is out" as to whether "adjoining" includes properties opposite an application site - that is separated by a roadway, or only relates to properties directly abutting the land in question. I would say that I am inclined to the view that properties across a roadway are not properly to be regarded as adjoining, but it is nevertheless conventional practice in relation to permit advertising that adjoining and opposite properties are viewed as requiring notice under Section 52(1)(a), and only properties further afield are considered as eligible for receipt of notice under Section 52(1)(d).

31. It seems to me, therefore, that the advertising which occurred to properties across Eighth Avenue (by direct mail), is not clear evidence of an exercise of discretion under Section 52(1)(d) having taken place.

32. Secondly, the cases which deal with this issue, including Pearce and Coburg [1973] VicRp 56; (1973) VR 583 hold that, unless there is evidence to the contrary, it is to be presumed that the Responsible Authority did turn its mind to whether notice should be given. I think that there is some evidence in this case that Section 52(1)(d) advertising was not considered. That evidence is firstly the existence and influence of the long standing practice by the Responsible Authority, described by Mr Cicero of not advertising applications for double storey houses in coastal resort towns by way of notice on the site.

33. It is a not uncommon occurrence, when the advertising of permit applications is being considered, that properties in the wider locality of an application site will be too numerous and/or too remote from the land in question to warrant direct notice by mail, and instead notice to those properties is given by the erection of a notice or notices on site (or by public notice in a newspaper). In circumstances where a responsible authority has a routine practice of not erecting notices, it seems possible that the giving of wider notice might be overlooked entirely.

34. Secondly, Ms Martin's decision concerning advertising to opposite and adjoining properties showed some uncertainty. The site visit record sheet indicated that she was not sure whether advertising should occur to the property at 12 Eighth Avenue opposite the land (a question mark follows the address of that property); and the list of properties which she compiled during the on-site visit as requiring advertising, while it included 6 Eighth Avenue, was not later implemented, in so far as the latter property did not receive notice.

35. However, even if Ms Martin for the Responsible Authority did consider the matter of wider advertising, I am of the view that, in the context of the policies of the emerging new format Planning Scheme, and of the long-standing practice on the part of the Responsible Authority, described by Mr Cicero, of seeking to achieve view sharing when applications were made under Clause 121 of the Scheme, she could not have reasonably concluded that no other persons might be materially affected by the development proposed by the Stevens.

36. I acknowledge that the Coopers' dwelling is not readily apparent from Eighth Avenue directly adjacent to the subject site: one has to walk perhaps 60m to the north to notice that the dwelling sits behind and looks through two of the houses on the western side of Eighth Avenue. I believe, however, a careful assessment by a planning officer in the context of the topography of this locality, and cognisant of the view sharing objectives of the Responsible Authority, including as espoused in the exhibited new Scheme, would at least have had led to some doubts as to whether there might not be other properties' affected by the development.

37. In relation to the discretion being exercised, I note that the Responsible Authority is simply required to form a view that there would be no other persons for whom the proposal would cause material detriment - the legislative provision merely refers to the Responsible Authority "considering" this to be the case. This is to be contrasted with the requirement of the Responsible Authority to be "satisfied" in relation to the absence of detriment under Section 52(1)(a). Mr Montebello argued that the provisions of Section 52(1)(d) are perhaps stricter and I agree.

38. I was referred to the observations by the Tribunal in the decision in D. and S. Jesson v City of Frankston and O.T. and E.M. Virtaren 1 AATR 314 concerning the difficulty of foreseeing all possible ways planning detriment may arise. In that earlier determination, Mr Byard commented that "when in doubt do" must be the advertising approach. It is one which should have applied in the present case given sloping land of the locality with dwellings sited to maximise coastal views.

39. I would also observe in passing that the Responsible Authority's routine practice of not placing notices on site to advertise applications for two storey dwellings in coastal resort towns, suggests that the Authority may regularly be failing to give consideration to possible detriment to properties beyond those immediately adjoining or opposite an application site. The Tribunal has already expressed concerns about such routine practices on the part of a responsible authority in the decision in Collins Street Properties Pty Ltd v City of Melbourne and Maxi City Pty Ltd 16 AATR 127 @ 141. I would also observe that the Responsible Authority's belief there is no efficacy to on-site notices in coastal towns because the properties in the towns are unlikely to be occupied by permanent residents, ignores the fact that a proportion of the dwellings in any coastal town will be permanently occupied, often by retired persons. Such is the case for the Coopers.

40. The above findings of course depend upon the effects of the Stevens' dwelling upon the Cooper residence being "material detriment" as referred to in Section 52(1) of the Act. I believe that the effects for the Coopers are such material detriment. In my view material detriment means a detriment which, while it may be small (although not so small as to be trivial), warrants planning attention. In this respect I follow the decisions in Ellul & Ors v Shire of Melton 3 AATR 179 @ 187 and Collins Street @ 140.

41. In my view the identification of detriment warranting planning attention , as was submitted by Mr Montebello, must be determined in the context of the relevant controls and matters for consideration under the Planning Scheme. There is no doubt that views and amenity were (and are) matters for consideration under the relevant provisions of the Surfcoast Scheme, and adverse effects would arise from the Stevens' development for others.

42. I am therefore of the view that the ground by the requestors has been made out and the Responsible Authority, if it made an assessment of the advertising issue under Section 52(1)(d) at all, made an assessment that was not reasonably open to it. In the context of the view sharing approach required to be taken to applications, a proper assessment would have been that some other dwellings in the neighbourhood might be affected and should receive notice - at least in the form of a notice on the site.

Were the Coopers Substantially Disadvantaged by the Grant of the Permit?

43. At the outset on this question, I would say that it must be noted that the reference in Section 87 is to "disadvantage" rather than to "detriment". It seems to me that this term may embrace adverse effects wider than those normally considered in a planning context as causing detriment. Such factors might include the inconvenience to Mr Cooper of not being able to observe the conditions of the sea at the base of Point Roadknight in order to ascertain the safety of beach conditions for children or grandchildren, and the suitability of the beach for surfing.

44. Without looking to wider types of disamenity such as just described, however, and considering only conventional planning detriment, I believe that the Coopers have been substantially disadvantaged. The Coopers were denied the opportunity to participate in the decision making process for the permit for the Stevens' dwelling, and that had they been afforded the opportunity to participate in the decision making process, a permit would not have been granted in the form it has. I believe that a properly informed consideration of the permit application would have led to a different design for the dwelling on the Stevens' land, which would have enabled retention of at least some of the views to Point Roadknight from the Cooper residence. This would have been possible, I believe, without any significant increased detriment, or no increased detriment, for any other property.

45. I was not persuaded by Ms Thompson's evidence - which principally related to the owner's preferences for siting of the dwelling - that other siting options could not be found on this large allotment of some 1400sq m, or that the building height could not have been somewhat reduced, resulting in a dwelling which would have met both the Stevens' needs as well as better serving the requirements of the neighbourhood for view sharing. It is clear that a dwelling with a wall height of 1.6m lower than as constructed - at least for part of its length - or incorporating a more angular roof form, could have been designed. I believe also that some compromise on the 4.5m high ceilings at first floor level would also have been possible.

46. In this respect I observe that in the officer's report on the Stevens' application there seems to be no consideration given to the box like form of the structure, or that the walls are unusually high for a double storey dwelling on an only gently sloping lot (7.5m high), or that the internal ceiling heights are anything but usual. To the extent that this officer's report reflects an inadequate consideration of these issues of height and scale, I believe that those matters would have been highlighted by an objection such as might have been lodged by the Coopers if advertising had occurred properly. I disagree therefore with Mr Biles that the outcome on the permit would have been the same even if the Coopers had objected.

47. The substantial disadvantage in this case is as a direct result of the failure of the planning system to allow persons entitled to participate in to be so involved.

Would it be Just and Fair to Cancel or Amend the Permit?

48. In determining this final matter I must go beyond to my finding that the permit would not have been granted in the form it has, and the adverse effects upon the Cooper property, and weight those matters against the qualitatively different effects upon the permit holder of substantial modification or cancellation of the permit. In making this judgment, I have recognised that neither the requestors nor the permit holders have done anything wrong in terms of their involvement in the planning system.

49. I have determined that the balance of the effects for the permit holder and the requestors dictates that the permit should not be cancelled or amended in any substantial way.

50. As just discussed, I have found that the Coopers have been substantially disadvantaged by the grant of this permit - they were denied the opportunity to participate in the planning system and denied the opportunity to achieve the proper outcome for development of the Stevens' land - that proper planning outcome being one which would achieve a fairer view sharing arrangement between properties, as is supported by the Planning Scheme.

51. However, it has to be recognised that there is no right to a view as such - the means by which views become a planning consideration is that they are recognised as being a component of or a contributor to the amenity of an area or a dwelling. The Surfcoast Planning Scheme recognises this, as has the Tribunal on numerous occasions since the decision in Tashounidis v Shire of Flinders 1 AATR 116.

52. In weighing the effects for the requestors and respondents, therefore, I believe it is relevant to consider how important was the view in question to the amenity of the Cooper dwelling and therefore the significance of the loss.

53. It is my assessment that despite the fact that the component of the view which has been lost contains a very significant feature in the surrounding landscape, the Coopers' house will retain ample views in all directions (except to the north) and a high level of amenity remains: there are generous views to the sea in a wide arc from the upstairs rooms of the dwelling.

54. I also believe that the significance of the loss of this portion of the Coopers' view is lessened by the fact that Point Roadknight itself was observable from restricted areas on the upper level of their dwelling: a quite small corner of the kitchen, through one bedroom window, and from the lesser of the upper level decks available to the dwelling. It has to be said that this is a house which is attractively supplied with decks at both upper and lower levels. The loss of view to Point Roadknight being only from restricted parts of the Cooper dwelling is to be contrasted with the more significant loss of a view available from a large part of a main living space.

55. Furthermore, I believe that Mr Biles' ascertain that the Coopers' view to Point Roadknight is an ephemeral one has some basis: the view in the direction of the point is across a number of properties, and it might come to be blocked by trees on adjoining land if neighbours are not co-operative in their pruning practices.

56. Balanced against the remaining high level of amenity of the Coopers' dwelling, is the inconvenience and other costs to the permit holders if the permit were to be substantially amended or cancelled. In this respect despite the absence of engineering evidence, I accept that even if a decision were made only to amend the permit by reducing wall heights, a major re-design of the dwelling would be required, including refabrication of some of the exterior walls and relocation of the exterior stairs.

57. In weighing the effects for the requestors and respondents, I have noted that compensation would be available to the permit holders from the Responsible Authority if the permit were amended or cancelled pursuant to Section 93 of the Act. However, the compensation available does not include "solatium", and would not cover the personal inconvenience and loss of the planned residence, for this household. Such a loss is not compensible in the same way as loss of a business venture may be, such as was the subject of compensation in the case of Appeal 1999/38961 G. Costa v Rural City of Mildura and R. Penny and Ors (unreported).

58. Mr Cicero urged me not to let this decision turn on moral judgments. I agree that such judgments are generally to be avoided in planning matters, and indeed there are a number of reported decisions expressing that view. While there is perhaps a greater justification for consideration of rights and wrongs in the context of a Section 87 application, where justness and fairness are expressly identified as issues for consideration, nevertheless I have avoided making such judgments in the present application. I would comment, however, that had I been inclined to ignore Mr Cicero's advice, I might have been influenced by the fact that the permit holders' approach to development of housing is perhaps not as community spirited as might be desirable. Ms Stevens seemed to believe that as she had purchased a property closer to the sea and at a higher price than the Coopers residence, that building out of the views of the latter property was not unreasonable.

59. Also, Mr Townsend sought to make something of the fact that the requestors' dwelling has the same overall height as the respondents' dwelling, He was perhaps suggesting that the requestors were being unreasonable, given the respondents were seeking a development only of the same overall height. It is, however, simply not the case that all allotments, irrespective of identical zoning and other planning controls, have equal "entitlements" in terms of development potential. The proper development outcome for any site must be a response to the site's context including existing built form and physical characteristics, and no two sites are ever identical.

60. Further, Mr Townsend made submissions to the effect that the Coopers were trying to achieve through the planning system that which they were not prepared to pay for in the market place, this presumably was reference to an option for the Coopers of purchasing a more expensive block of land closer to the sea, or the Coopers perhaps in some way financially compensating the Stevens for restricting the development potential of their land (in favour of the Coopers' view). This submission is to fundamentally misunderstand the nature of the planning system, however. Planning controls do regulate the operations market economy, as does all Government legislation. Individuals are entitled, however, to utilise the planning system as part of the "mixed economy" in which they operate. The planning system is not to be seen simply as a "fall back" to a failure to achieve ends by private negotiation. Indeed, as a component of the mixed economy, it is a means by which the community deliberately seeks to direct the operations of the market towards agreed social, economic and environmental outcomes which would not otherwise be forthcoming.

61. While I have indicated for the reasons above that I am not prepared to cancel the permit for the Stevens' dwelling, or make the substantial amendments sought by the requestors, I believe, however, that it would be just and fair having regard to the competing interests to impose a condition on the use of the roof of the Stevens' dwelling. As Mr Montebello submitted, the Coopers' view could be further disrupted by the permanent storage of equipment on the roof, or the fixing of furniture and other features to the rooftop. While reasonable use of the roof deck should be allowed, further blocking of the Coopers' views should not be permitted when the roof is not actually being used by the Stevens' household. For this reason I believe it appropriate to amend the permit granted for the dwelling to include an additional condition precluding the permanent fixing of furniture and other features to the rooftop and avoiding the permanent storage of goods and materials on the roof.

62. At the time of my giving oral reasons for the forthcoming decision on this application, on Friday 15th September 2000, the permit which is the subject of the amendment request was a permit issued under the then current scheme. That is to say it was a permit issued under the old format Planning Scheme then in force.

63. As noted earlier, however, since that time, the new format Planning Scheme for the Shire was introduced (on 5th October 2000). Permit 99/8076, therefore, is now a permit issued under a former planning scheme.

64. The question of the status of permits granted under former schemes and whether or not they can be amended under Section 87 has been the subject of a number of recent decisions by the Tribunal, including that in Vomanda v City of Melbourne 2 VPR 91.

65. In the Vomanda decision, the Tribunal expressed the view that certain types of permits granted under former schemes (permits for uses prohibited under the replacement scheme) had "expired" and could not be amended under Section 87. While the arguments in Vomanda might be said to logically extend to permits for proposals which are discretionary under replacement schemes (or indeed all former permits), the decision in Application for Review 1999/0578302 Thomson Wolveridge and Perrett Pty Ltd v Shire of Mornington Peninsula (heard together with Appeal 1999/057855 - both unreported) has distinguished Section 3 permits from other types of permits. In Wolveridge, the Tribunal notes that Section 24 of the Planning and Environment (Planning Schemes) Act 1996 would have the effect of keeping "alive" permits for uses which are now permissible even though the originating scheme has terminated.

66. The permit which is the subject of this application to the Tribunal is of the latter kind: the new format Scheme does not prohibit the granting of such permits (though this is not to say that discretion would be exercised favourably). I believe, therefore, that, despite the Scheme changes, there is no prohibition upon making an amendment of the subject permit.

67. Applications for costs were made against the Responsible Authority on behalf of the requestors and the respondents.

68. Mr Montebello sought the legal fees incurred by Maddock Lonie and Chisholm for the Coopers of $13,046.44, plus the cost of the costs hearing. Mr Townsend for the Stevens sought an amount of $23,970.06. This comprised Mr Biles and Ms Kerstin Thompson's fees, instructing solicitor's fees, and appearance and other fees for Mr Townsend, and for Ms Brennan at an earlier directions hearing.

69. These applications were both made under Section 109(3)(e) of the Victorian Civil and Administrative Act 1998 - explicitly in Mr Montebello's case and impliedly in Mr Townsend's case.

70. That Section of the Act and other relevant sections are as follows:

"109(1) Subject to this Division, each party is to bear their own costs in the proceeding.

(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.

(3) The Tribunal may make an order under sub-section (2) only if satisfied that it is fair to do so, having regard to--

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as--

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(v) attempting to deceive another party or the Tribunal;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(e) any other matter the Tribunal considers relevant."

71. The basis of the request by Mr Montebello for the Coopers was essentially that the Tribunal's reasons given orally on Friday 15 September 2000 had included a finding that there had been a failure to give notice by the Responsible Authority and there was substantial disadvantage to the requestors, albeit that the Tribunal had found it would not be just and fair to cancel (or substantially amend) the permit.

72. He said that it was clear that the mistake by the Responsible Authority in not giving notice was not merely an oversight or an administrative error, such as had occurred in Appeal 1996/17815 E. & G. Dixon v City of Stonnington (unreported). Rather, he said, the failure to give notice had come about as a direct result of either the policy which is in place regarding the not giving of notice under Section 52(1)(d) of the Planning and Environment Act (by signs on the site), or it was as a result of the failure of the relevant planning officer to reasonably consider the relevant issues so far as advertising was concerned, and, in particular, the policy context for the decision to be made on the permit application, especially as related to view sharing.

73. Referring to the decision by the Tribunal in Appeal 1999/055403 Nakkasoglu v City of Bayside and Woodhams (unreported), and its findings about the nature of the disadvantage which might be caused to others as referred to in Section 109, he suggested that the Responsible Authority had unnecessarily disadvantaged the Coopers.

74. He expanded on this argument by referring to six reasons as to why the Tribunal should be satisfied it would be fair to make an award for costs:

"* There was a clear failure to properly and reasonably exercise a statutory duty one that has been the subject of comment over and over by the Tribunal.

* The nature of the proceeding is one which is not of the ordinary type. It was not a normal planning appeal to which one might think the ordinary rule would apply. The proceeding has been widely recognised as being a very serious proceeding with serious consequences. Like enforcement orders, it is a proceeding which more so justifies the making of an award for costs than the normal planning application.

* The sole ground relied on by the Requestors was established without equivocation according to the Tribunal's oral reasons. It would appear that the failure to give notice came about by the adherence to a wrong policy. In any events, it is clear that if it was not a wrong policy that influenced the decision to not give notice, then, there was a complete failure to appreciate the importance of giving notice and the planning scheme and policy provisions that should govern the question of whether notice should be given. There appears to be no heed taken of the warnings in Jesson that "when in doubt, do" and the like.

* Despite being approached by the Coopers, Council never took any action regarding its error except to notify its insurer. Council has never acknowledged its failure. Instead, it has chosen to contest the ground of failure to give notice and always maintained throughout the hearing that it had not erred. Council would not take action itself and consequently, the Coopers had no choice but to initiate legal action themselves and then find Council as one of the hurdles to making out a ground.

* The Coopers are ordinary people. If notice had been given, there is little doubt that they would have had the capacity to represent themselves before a Tribunal. However, they were deprived of that opportunity and instead, had to brief lawyers to initiate what on any view is a technical and serious legal proceeding. They had to seek a stop order and give an undertaking as to damages. This all reasonably required legal assistance. No legal aid is available for such proceedings.

* Finally, these are proceedings which so easily could have been avoided by simply giving notice. It is not an onerous task as compared to the consequences and the delays and costs involved in not giving notice."

75. Mr Townsend submitted that the Responsible Authority ought to be the subject of an order for costs in favour of the Stevens on the basis that the Responsible Authority had as a result of its failure to give notice and its misinterpretation of the Planning Scheme that it administers, put the other parties to expense unnecessarily. In this he referred to the decision by the Tribunal in Richardson and Others v Ellison 15 AATR 269 at 283, and to Harley v South Gippsland Shire Council and Robertson (2000) VCAT 248. He said also that the Stevens had been caught up in the proceedings through no fault of their own. They had been inconvenienced with numerous trips to Anglesea to accompany experts, brief Counsel and take photographs, amongst other things. Mr Townsend submitted that having to incur the additional expense of defending what was until recently legitimately theirs, was not contemplated by (the ordinary rule of) Section 109 of the Act.

76. Mr Cicero for the Responsible Authority resisted the orders for costs on the basis that this was not a case where the Responsible Authority failed to give notice at all or, having given notice missed an adjoining owner or occupier and failed to send out the notice. He submitted that despite the Tribunal's findings, it was open for the Tribunal to find that the decision not to give notice under Section 52(1)(d) does not amount to circumstances in which it would be fair to penalise a responsible authority that had otherwise acted properly in relation to the application. Further, he submitted that even if notice had been given, having regard to the way that the parties put their case before the Tribunal in the current proceeding, it was quite likely that an appeal on the merits would have been inevitable, and irrespective of the outcome of such an appeal, the parties would have borne their own costs. Moreover, he said that given the issues involved, the Tribunal would also be entitled to conclude that in all probability the parties would have been represented legally and/or would have called evidence to support their respective decisions. He said further that the Tribunal should not lightly penalise a council by an award of costs where it had exercised a discretion even where the Tribunal later came to the view that the exercise of the discretion had miscarried, unless the Tribunal could conclude that the decision of the Responsible Authority was so unreasonable there was really no argument about whether it acted reasonably or not. He said that this was not such a case.

77. As is made clear in my reasons, I have found that the Responsible Authority failed to properly perform its statutory duty in relation to advertising of this application under Section 52(1)(d) of the Planning and Environment Act 1987. As my reasons indicate, it is possible that the Responsible Authority's officer did not turn her mind at all to the issue of advertising beyond that required under Section 52(1)(a) - that is the giving of notice to (opposite and) adjoining properties who ordinarily would receive such notice. This was principally because the officer's decision was made within the context knowledge of the long-standing Council practice of not placing signs on sites to advertise house extensions in coastal resort towns, as advised by Mr Cicero.

78. My decision also makes it clear that even if the Responsible Authority's officer did turn her mind to the advertising of the application pursuant to Section 52(1)(d), the exercise of that discretion miscarried. I indicated that I believed that, in the context of the view sharing considerations apparently routinely applied by the Responsible Authority to applications under Clause 121 of the Planning Scheme, and the forthcoming policies of the new format Scheme concerning view sharing which had already been exhibited, the Responsible Authority's officer could not reasonably have concluded that no notice should be given, especially in the circumstances of sloping land in a coastal town where views to the sea are clearly a valued component of residential amenity. I believe that it was unreasonable not to take a prudent approach of attempting to give notice (by an on-site notice) to a wider group of properties from which views might be affected, and which the officer could not necessarily identify without detailed on-site inspections.

79. The most persuasive of Mr Cicero's arguments against the award of costs is that in all probability the parties would have had to attend a review hearing before the Tribunal on the merits of the application if the Coopers' had been given notice and had participated in the original decision by the Responsible Authority.

80. In that respect, I have earlier indicated that I am of the view that the officer's report to Council on this application reveals that the application was inadequately assessed. I also have said that had the Responsible Authority received an objection from the Coopers in relation to the present application, the outcome of the consideration of the permit application would have been the issuing of a permit subject to different conditions. Those conditions would have required an amendment of the plans for the house to afford a more equitable sharing of views between the properties. Mr Cicero is therefore correct in his submission that it would have been possible that in response to such a requirement upon the Stevens that they may have sought an appeal against such a condition.

81. I believe, however, that the lodging of an appeal by the Stevens would not have been an inevitable outcome: the modification of the Stevens' dwelling may not have been assessed as unreasonable by them: there would still have been extensive views available to them, and the integrity of the architectural design of the dwelling might have been retained despite alterations to the roofline or walls In these circumstances I do not believe that I should "discount" costs which only might have been incurred had such a review been lodged.

82. I have determined that the costs of the other parties to the permit proceeding should be borne by the Responsible Authority.

83. As to the matter of the quantum of costs, Mr Montebello submitted that the Coopers should be paid "the reasonable costs that they have had to expend to do what they had to do to get a hearing" in relation to the matter of view sharing. Impliedly Mr Montebello was seeking the full "solicitor/client" costs in relation to this matter. Mr Townsend also sought an order that the Responsible Authority should pay the permit holders "reasonable costs actually incurred". He submitted that the Tribunal should adopt the approach taken in the Lowther Hall Anglican Grammar School v Moonee Valley decision (1999 VCAT 72), whereby the Tribunal believed itself to be in the best position to determine the reasonableness or otherwise of the work undertaken by the solicitors, Council and consultants engaged by the requestors for costs (rather than the Registrar who might otherwise tax the costs), and had had regard to actual costs incurred, rather awarding costs on a party/party basis on a specified County Court scale. He said that in the alternative, if the Tribunal deemed the award of party/party costs on a County Court scale appropriate, that County Court Scale D should apply, having regard to the value of the property in dispute. In this he relied on a decision by the Tribunal in Le Coz v Innominata Pty Ltd [1999] VCAT 1599. He said that this approach was reasonable given the seriousness of the costs faced as a result of cancellation or amendment of the permit and the complexity and difficulty of the Tribunal decision.

84. Mr Cicero for the Responsible Authority argued that the costs awarded ought to be party/party costs based on the approach by the Tribunal in Bayside City Council v Campbell and Ors [1999] VCAT 1638 and that the appropriate County Court Scale for taxing would be Scale B.

85. I have given consideration to the matters raised in relation to the claims for costs and I agree with the view of Mrs Monk in the Lowther Hall case, that the Tribunal is in the best position to judge the requirement for expenditure. I have determined that it is appropriate that the Responsible Authority should pay the costs actually incurred by the other two parties in this proceeding. I believe the costs are reasonable, and as the other parties were in no way at fault, there are no mitigating circumstances which would justify the other parties carrying a share of the costs, as would result if a party/party approach were adopted.

86. The only exception to full payment of the costs actually incurred, which I propose to make, is for Mr Townsend's attendance at the site inspection. Site inspections are intended to serve the purpose of enabling a Tribunal to better understand submissions and evidence presented in the hearing room and are not intended to provide an opportunity for presentation of additional submissions by an advocate. I believe that it would have been adequate for Ms Stevens alone to have been present on the inspection. She could adequately have replied to the Tribunal's queries, I believe, and would have been able to observe that no additional submissions were made by the other parties.

87. I have issued a direction only in relation to costs at this stage to allow the parties themselves to come to an agreement concerning the amount of costs to be deducted for Mr Townsend's attendance at the inspection. Failing such agreement, I propose to take further written submissions on the matter. A costs order will later be issued.

Environment Act 1987

Victorian Civil and Administrative Act 1998

Cooper v Surfcoast SC [2000] VCAT 2180

At a glance

Court

Decision date

Source

Judgment (182 paragraphs)

Cooper v Surfcoast SC [2000] VCAT 2180 (31 October 2000)

Parties

Legislation Cited (2)