Detour Investments Pty Ltd v Boroondara CC [2007] VCAT 2254

This is the second of three Boroondara matters that came before me in successive weeks by way of Practice Day hearing, where an applicant was seeking to review the decision of the responsible authority to refuse to approve an amendment to plans by way of secondary consent under a permit.
In this matter, the responsible authority again relied upon a legal submission that was essentially common to all three matters. In the first of these matters, Zuzek v Boroondara City Council[1], I set out a number of principles relevant to the circumstances under which it was appropriate to use the secondary consent mechanism. In particular, I re-confirmed the criteria set out in Westpoint Corporation Pty Ltd v Moreland City Council[2].
The principles in Zuzek are equally applicable to this case, although the application of the principles to the facts of this case leads to a different outcome, and these reasons therefore form a useful 'companion piece' to Zuzek in relation to the operation of the third criterion in Westpoint, namely whether the proposed change to plans is 'of no consequence having regard to the purpose of the planning control under which the permit was granted'.
The facts of this case are relatively simple. A planning permit was issued on 2 March 2005 by the responsible authority at the direction of the Tribunal. The permit authorised the construction of 11 dwellings above a basement carpark. Two visitor spaces were provided within the basement carpark, with the balance of spaces allocated to dwellings. On 7 June 2007, the permit holder sought to re-allocate the car spaces such that the number of visitor spaces was reduced from 2 to 1.
It was common ground that the relevant planning control for the provision of visitor car parking for a development of this nature is to be found, as part of ResCode, in Clause 55.03-11 of the Boroondara Planning Scheme. The stated objective there is:

Detour Investments Pty Ltd v Boroondara CC [2007] VCAT 2254 | Case summary | Zoe

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The consequence of the application before me is therefore a shift from compliance with the standard that should normally be met, and reliance instead upon an alternative intended to meet the stated ResCode objective.
Having regard to the Westpoint criterion, a relevant test for secondary consent is therefore whether this is a matter of "no consequence, having regard to the purpose of the planning control under which the permit was granted". In Zuzek, decided after this matter was heard, I indicated that in relation to this third criterion in Westpoint, the changes for which secondary consent might be considered should not be measured as being minor or trivial in an absolute sense, but rather needed to be considered in the context of the purposes of the control that led to the grant of the permit.
Even if the proposed change to the plans does affect a factor relevant to the original permit consideration, that does not of itself mean that secondary consent cannot be given. The consequence of the change must still then be considered vis-à-vis the purpose of the planning control. In Zuzek, I followed earlier decisions that had indicated there was a continuum of possible changes that may be considered, and it is a question of judgement having regard to the nature of the change to plans in its context in each case. Within the middle of this continuum, it would be possible to form a view that a change is acceptable and of no real consequence despite it relating to the purpose of the planning control for which the permit was granted. Equally, that judgment may lead to a view that the change is potentially of consequence having regard to that planning control. This is one of those cases.
Mr Cicero for the applicant did not, in his written submission, expressly address the legal matters raised by Mr Montebello for the responsible authority, as to whether the use of the secondary consent mechanism was appropriate in this case. His view seemed to be that this was a straightforward matter where that might be reasonably assumed. He generally accepted the Westpoint criteria as the appropriate test, and proceeded directly to a merits consideration. In essence, he considered that by reference to the decision guidelines in Clause 55.03-11, the reduction of one visitor car space was of no consequence as the shortfall was more than compensated for in the circumstances where five of the two bedroom units had two car spaces allocated to them, being in excess of the ResCode requirements for two bedroom units. He also questioned the useability of visitor car spaces located in basement areas where they might not be commonly used by visitors who would instead take the 'easy option' of parking on the street.
I have some degree of sympathy for the merits position put by Mr Cicero, and this view may yet be upheld after a more formal amendment process. However, the question before me is whether the matter is of "no consequence, having regard to the planning control under which the permit was granted" (and is thus capable of being dealt with by way of secondary consent), or whether the matter is of consequence (and warrants a more formal process under s 72 or s 87 that potentially introduces third party participation or a more detailed examination of the merits).
In the end result, I believe that the loss of one visitor car space is a matter potentially of consequence in this context. I therefore believe the responsible authority has correctly exercised its judgment not to deal with this matter by way of secondary consent.
Whilst the visitor car parking arrangements were clearly argued in the earlier Tribunal hearing, it seems implicit from an analysis of that decision that some importance was attached to the applicant's reliance on meeting the relevant ResCode Standard B16. I was not taken by the parties to any evidence or submissions in that earlier proceeding that might suggest otherwise. The move from compliance with the Standard B16 to reliance on the broader ResCode objective is, in the context of this case, therefore potentially of consequence as it opens an issue as to what are the real needs for visitor car parking for this development and whether the objective is indeed met. This was not really tested in the earlier proceeding, where reliance was simply placed on the meeting of the Standard. [This is to be contrasted with Zuzek where the proposed change still complied with the relevant ResCode standard in that case].
There is some evidence from the responsible authority, albeit not tested before me, that the loss of one visitor space will impact on the development. It cannot necessarily be argued that, simply because some of the units have more than the required number of allocated car spaces dedicated to that particular dwelling, that these spaces are in some way "surplus" and capable of being used occasionally as visitor spaces. There is also some evidence, again not tested before me, that there is a lack of

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on-street car parking within the immediate area. The loss of one of the visitor car spaces would also be contrary to the local policy at Clause 22.03 of the Boroondara Planning Scheme. 9. These matters lead me to the view that the proposal to delete one visitor car space from the basement carpark is a matter of consequence having regard to the purpose of the planning control under which the permit was granted. This accords with the Council officer report which carefully assessed the proposal against the Westpoint criteria in reaching a similar judgement. Although I am in no way bound by the officer report, this 'planning assessment' strengthens my view that the proposed loss of a visitor space is of consequence having regard to the control - just as in Zuzek, the officer assessment strengthened my view that the proposed change there was not of consequence having regard to the relevant planning control there. 10. As I have indicated this does not mean that an application, properly brought in a more formal sense to amend the permit or endorsed plans, might ultimately not be successful either before the responsible authority or, on review, before this Tribunal. However, the nature of the potential consequence in this case is that a more formal amendment process ought to be used, and the merits fully tested. 11. This is a matter where the initial permit was issued at the direction of the Tribunal. For this reason, by reference to s 72(2) of the Planning and Environment Act 1987, the amendment process under s 72 is not available to the applicant. In Zuzek, I indicated that, in such circumstance, I believe that the s 87 or 87A process was available to an applicant, and I adopt that view (and the reasons for it) in this case. If the applicant wishes to pursue this matter further, that is the process that it would need to follow. 12. I might add that, in the short time since my decision in Zuzek was published, there has been some commentary on the divergence of views as between Zuzek and Begonia v Frankston City Council[3] on the use of s 87, and a view that this may lead to some confusion in Tribunal practice. This need not be of significant concern. Under my view in Zuzek, s 87 is available to amend endorsed plans, particularly where s 72 is not available. Under the view in Begonia, s 87 is not directly available to amend endorsed plans per se, but the plans can still be amended via a s 87 process by amending the permit wording to refer to the amended plans. Whilst I believe Zuzek is correct and the Begonia 'device' is unnecessary, the practical consequences are limited. Either way, s 87 is directly or indirectly available to amend plans in circumstances where secondary consent is not appropriate and s 72 is not available.

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Judgment (13 paragraphs)

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Cases Cited (1)

Detour Investments Pty Ltd v Boroondara CC [2007] VCAT 2254 (29 November 2007)