Clause 3.0 of the General Residential Zone (Schedule 10) of the Stonnington Planning Scheme enables a permit to be granted for a building or an extension to a building on the land at 90-96 Mathoura Road, Toorak that is no higher than the immediately adjacent building/s which is/are facing the same street in the same zone, being the building/s at 86A-88 Mathoura Road, Toorak.

Mr Christopher Townshend, QC with Mr Peter O'Farrell of Counsel instructed by Gadens Lawyers

1. The applicant seeks a declaration as to the meaning of an exemption in Schedule 10 to the General Residential Zone of the Stonnington Planning Scheme. The declaration is sought under section 149A(1)(a) of the Planning and Environment Act 1987 in so far as it relates to the interpretation of the planning scheme controls in respect of the subject land.
2. The declaration sought pertains to the permitted maximum height for a building that may be constructed on the subject land and is expressed in terms referable to the physical setting of the subject land. It does not purport to be confined to any specific proposal or any particular structure that may exist or may be constructed on immediately adjacent sites at any particular point in time.
3. The responsible authority opposes the making of the declaration sought. It submitted that it would go beyond a literal and preferable interpretation of the planning scheme provision under consideration.

1. The subject land is included in the General Residential Zone (GRZ). Clause 32.08-7 provides that 'the maximum height of a building used for the purpose of a dwelling or residential building must not exceed the building height specified in a schedule to this zone'. A number of exemptions are included in that provision but are not triggered on the facts before me.
2. The subject land is mapped within Schedule 10 the GRZ - Garden River & Garden Suburban Precincts. Relevantly, clause 3.0 provides:

A building used as a dwelling or a residential building must not exceed 9 metres unless the slope of the natural ground level at any cross section wider than 8 metres of the site of the building is 2.5 degrees or more, in which case the height of the building must not exceed 10 metres.[2] This does not apply to:

ϒ An extension of an existing building or the construction of a new building that exceeds the specified building height which does not exceed the height of immediately adjacent buildings facing the same street. [Tribunal emphasis]

1. The current physical conditions of the land and immediately adjacent buildings are at least of peripheral relevance, since they explain the background to the question for determination by the Tribunal. The facts are agreed between the parties.
2. The subject land currently contains two double storey buildings which provide a total of four dwellings. Land to the immediate north is 98 Mathoura Road, within the Commercial 1 Zone[3] and contains a two storey building which fronts Mathoura Road. Land to the immediate south is 86A-88 Mathoura Road, within the GRZ and contains a four storey building which also fronts Mathoura Road.
3. In Szwarcbord v Yarra CC[4], a decision of Senior Member Wright QC, the Tribunal declined to make a declaration that the maximum height of a building under the exemption was set by the higher/highest of the immediately adjacent buildings. Instead, he held that the maximum height above 9 metres is effectively set by the lower of the two immediately adjacent buildings, where the term building was used in the plural.
4. This finding was accepted by the parties in the current proceeding, and I adopt it for present purposes.
5. The issue before me is somewhat different, since the land in question in Szwarcbord sat between two immediately adjacent buildings, with all three properties within the same zone.
6. The question identified by the applicant in the proceeding before me is how to apply the exemption in clause 3.0 in circumstances where one immediately adjacent property is within the same zone as the subject land, while the other is not. To my knowledge, this issue has not been determined by the Tribunal to date.
7. In practical terms, if the provision was interpreted to refer to both adjacent buildings facing Mathoura Road irrespective of their zoning, the lowest of these is the two storey building at No. 98, which (if it was above 9 metres) would become the maximum height to which a building on the subject land could be constructed. However, if only adjacent buildings facing Mathoura Road within the GRZ (i.e. the same zoning as the subject land) were used in the assessment, that would leave only the building at No. 86A-88 to set the maximum height benchmark for the subject land at four storeys.

MEANING OF THE PROVISION BY REFERENCE TO THE SUBJECT LAND

1. It is helpful to start with the parties' positions in this proceeding which were well considered.
2. The responsible authority submitted that the provision was clear in its wording - it necessitated consideration of all immediately adjacent buildings fronting the same street. If both of those buildings were taller than the maximum building height, the exemption would allow a building to be constructed on the subject land up to the same height as the lower of these buildings. In this case, the two storey building at No. 98 would be the lower building.
3. The applicant submitted that by virtue of the structure and operation of the relevant planning controls, the exemption should be interpreted in this case to refer only to the height of the immediately adjacent building within the same zone as the subject land. That is, for the purpose of the exemption, there is only one adjacent property of relevance, being 86A-88 Mathoura Road.

1. The principles of statutory interpretation are generally well established and were not debated in the context of this hearing.[5] The provisions of the Interpretation of Legislation Act (1984) bear on this analysis, including section 35.
2. In summary, I am called upon to construe the provision in a way that is consistent with the language and purpose of the relevant part of the planning scheme.[6] On the 'modern' approach to statutory interpretation, this proposition applies irrespective of whether the provision raises an ambiguity or inconsistency. The task before me is to ascertain the meaning of the words of the exemption in their context.
3. From the outset, I accept the proposition advanced by the applicant that care needs to be taken when interpreting planning controls which are mandatory and affect whether a permit could be applied for or not. The 'exactitude' of such controls was distinguished from the status of decision guidelines which must be taken into account, but do not prescribe particular outcomes.

1. The specific wording used in the exemption does not of itself make provision for the distinction or exclusion of buildings on land within another zone when considering actual building heights. It would appear to apply irrespective of zoning, with the only criteria that both buildings are 'immediately adjacent to' the subject land and are 'facing the same street'.
2. I agree with Mr Gale on behalf of the council that when the Tribunal engages in statutory interpretation, it needs to be careful not to 'read in' words into the planning scheme that are not there.
3. In this case, it is apparent that the drafters of the clause could easily have added the words 'in the same zone' if they had intended to confine consideration of building height to buildings in the same zone as the subject land.
4. The responsible authority submitted that although a planning control would apply only to the land itself, this does not mean that it should be applied differently when there is an adjacency to a differently zoned property.
5. However, in my opinion, this level of analysis is not sufficiently comprehensive given the nature of the control in question and the structure of the planning scheme.

The preferred approach - giving meaning in context

1. The structure and proper operation of the planning scheme is highly relevant to my interpretation of the exemption under consideration.
2. The basis of the current planning scheme in Victoria is the designation of land into distinct zones, often with overlay controls applying to protect or advance particular values of the land or surrounds. This is given effect to by the identification of all land within the municipal area within planning scheme maps.
3. Mr Townshend on behalf of the applicant emphasised that immediately under the zone heading to clause 32.08, the clause itself provides:

Shown on the planning scheme map as GRZ, R1Z, R2Z or R3Z with a number (if shown).

1. Therefore, the General Residential Zone pertains to land identified as such on a relevant planning scheme map. Prima facie, the mapping sets the boundary of the zone controls.
2. The exemption in this case is contained within a clause that is part of a schedule to a zone. The zone and its schedule are expressly applied to land shown on the relevant maps. Other provisions apply to land outside the zone. According to the applicant, it follows that the exemption refers to buildings, it is referring to buildings on land within that zone, unless otherwise specified.
3. When interpreting the wording of the exemption, it is necessary to give due recognition to the extent of the controls which, in the normal course, encompass land within the zone but not beyond its boundary. In my view, when the control is read in this context, it is appropriate for it to be subject to the proviso that the land/buildings referred to is/are those under the auspices of the control itself.
4. In my opinion, the findings above provide a logical explanation to the absence of the words 'in the same zone' at the end of the relevant exemption. Simply put, they would be superfluous in circumstances where the zone applies only to land within its mapped area.
5. The permit applicant submitted that the purpose of the control, read as a whole, is to mandate maximum height parameters for buildings within the GRZ. This is either by reference to a fixed measure of 9 metres, or by the measurable parameter of the lesser of two taller adjoining buildings in the zone.
6. I accept that to adopt a wider reading to this particular exemption to include buildings outside the zone could be tantamount to importing the measurable height parameter for the GRZ from a building in the adjacent zone (Commercial 1). This would be at odds with the structure of the planning scheme which expressly provides for a different suite of provisions applying to the maximum height of buildings over the zone boundary.
7. Mr Townshend's submission is also persuasive to the extent that the practical outcome of making the declaration in this case would be to permit a building to the maximum height of the existing, adjacent four storey building within the GRZ. It would also mean that a building could not step up to the height of a taller building in an adjacent zone when there is a lower building within the same zone as the subject land.
8. Importantly, this interpretation would be consistent with the second stated purpose of the zone which includes encouraging development to respect neighbourhood character within the zone itself (having regard to the legitimate purview of the zone as defined by its mapping). I consider that this purpose of the zone is more likely to be promoted if the parameters for maximum heights are set within the zone itself by reference to existing or approved building heights within that zone.
9. Such an interpretation would also better facilitate the fourth purpose of the zone, to provide moderate housing growth in locations offering good access to services and transport. It would also sit comfortably with the height potential of the adjacent block within the Commercial Zone.
10. Therefore, I accept that it is reasonable to 'read down' the relevant exemption in its context by reference to buildings on adjacent land affected by the same planning control - in this case, within the same zone.
11. I acknowledge that it is possible for a planning control applying to one zone to expressly recognise and/or impact land within another zone. This may well be lawful. One direct example of this in the GRZ is where conditions attach to section 1 uses by reference to whether the land is located adjacent to a boundary to another zone (e.g. a Road Zone). Such an approach is often part and parcel of integrated planning.
12. However, for such an interpretation of a provision within a schedule to the zone to be the preferable one, I consider that there would generally need to be an indication of intention or a direct connection with the purpose of the control to displace the ordinary scope and application of the zone provisions.
13. Mr Gale submitted that, in a practical sense, a decision maker or member of the public would not necessarily be cognisant of a zone boundary when assessing a continuous streetscape such as this. He advanced this as a reason to interpret the provision to include buildings on either side irrespective of their zoning. He suggested that a commensurate approach is reflected in Standard B6 of Rescode (Clause 55) for example, where the front setback should be an average of the two adjacent buildings irrespective of their zoning.
14. The transition between zones is often the subject of particular decision guidelines and/or policies, since it commonly requires careful evaluation to ensure the acceptability of proposals. However, this involves a consideration of the planning merits that goes beyond the limited question before me as to whether a permit could lawfully be granted having regard to the applicable planning control.

1. A declaration is a discretionary remedy available to the Tribunal within its original jurisdiction. A decision such as this entails consideration of equitable principles enunciated in case law.[7]
2. I am conscious that there are potential ramifications of the reasoning underpinning my decision.
3. Hypothetically, the interpretation advanced by the responsible authority could cut both ways. I accept that the planning 'danger' associated with including buildings outside the zone under consideration would be to allow maximum heights within adjacent zones to de facto prescribe or permit maximum heights for the GRZ.[8]
4. The applicant submitted that this effect would be particularly problematic where the relevant zone and adjacent zones (such as those in question) establish an integrated regime for building heights across different precincts delineated by zones/overlays. I agree.
5. On the other hand, if permission for a taller building could be granted in the GRZ (such as by virtue of an immediately adjacent building on one side where the Neighbourhood Residential Zone included shorter buildings on the other side), this does not mean that a permit would necessarily be granted. Rather, the usual planning discretion would need to be exercised, bearing in mind relevant considerations which include decision guidelines seeking a suitable transition to lower order zones.

1. For the reasons above, I have affirmed the declaration sought by the applicant.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] There is currently no slope on the land that would qualify it for the increased height in this case.

[3] A Design and Development Overlay applies to that property, with a recommended maximum of 3-5 storeys.

[4] [2015] VCAT 1603.

[5] See, for example, Project Blue Sky v Australian Broadcasting Authority [1998] HCA 2828.

[6] The objectives of planning and the planning framework in Victoria contained in section 4 of the Planning and Environment Act 1987 are relevant to this analysis.

[7] For example, Victoria v Bradto Pty Ltd [2006] VCAT 1864.

[8] In Mr Townshend's notional example this was where the immediately adjacent property in the GRZ was vacant and the immediately adjacent building in the Commercial 1 zone contained a tall building.