Victorian Civil and Administrative Tribunal|1999-05-31

Dretzke v Boroondara CC [1999] VCAT 920 (31 May 1999)

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

This hearing results from an application by the Applicants for Review, made by letter to the Tribunal dated 20 April 1999 by their solicitor, John McMullin, for a hearing on the issues which relate to a document (to use a neutral term) issued by Ms Baird, sitting alone as the Tribunal in an Application under section 82 of the Planning and Environment Act ("the PEA") to review a decision to grant a permit.

The proposal was for two 2 storey townhouses ("dual occupancy") at 16 Bennett Street, Balwyn ("the subject land").

The Boroondara Planning Scheme applies. The subject land is in the Camberwell Residential Zone. In this zone, a permit is required for development of the subject land for the proposed purpose. Clause 21 requires the assessment of the proposal against the objectives and criteria of the Good Design Guide for Medium Density Housing.

The Tribunal heard the Application to Review on 19 March 1999. Ms Baird conducted an inspection, and reached certain conclusions. She then issued a document which set out two broad findings, which were (in summary) that the subject land was appropriate for a dual occupancy development; but that there were a number of features of the particular form of development proposed that were unsatisfactory in their present form. Ms Baird stated:

"The form of such a development is crucial and in principle, the Tribunal does not consider a two storey unit to the rear of the site as inappropriate, subject to issues relating to amenity impacts and visual bulk being satisfactorily addressed."

The relationship of the front unit to its streetscape was also regarded as unsatisfactory.

In the case of these identified issues, the Tribunal set out a series of design goals that should be addressed in order to produce a form of development that would be satisfactory to the Tribunal. They included attention to the following details, which have been reduced for brevity to "dot points". The full text is found at pp.9-10 of the document dated 31 March 1999.

* extent of paved area and domination of the garage to be addressed.

* greater articulation and variation in the building to more closely reflect prevailing building forms and elements.

* relationship of the habitable rooms windows with the adjoining property to be reviewed.

* the floor area of the second unit should be reduced, including the further recession of bedroom 2, to reduce the visual impact of the development for residents of No. 11 Haig Street.

It was suggested that the extensive lobby in the upper level of the rear unit could be reduced, together with redesign/reduction of bedrooms, to achieve this objective.

* the Tribunal wished to see an increase in the available area for landscaping along the southern and eastern site boundaries.

It was suggested that this could also be achieved by a reduction in the floor area of the rear unit, which would also assist to improve the relationship between the habitable room windows of the rear unit and adjoining premises at No. 11 Haig Street.

* Greater articulation is required to enhance the appearance of blank walls.

"Rather than to refuse the development, the Tribunal considers it appropriate to afford the permit applicant the opportunity to submit amended plans responding to these matters."

"The direction of this Tribunal in this Application for Review is that within 15 working days of the date of this order, the permit applicant must advise the Tribunal and other parties to this Application for Review whether or not further amended plans will be prepared that respond to this interim order.

If the permit applicant intends to prepare such amended plans, they must be prepared and copies provided to the Tribunal and other parties to the Application for Review no later than six weeks from the date of the permit applicant's stated intention to prepare such plans.

On receipt of those plans, the Responsible Authority and objectors may provide any comments they wish on the revised plans to the Registrar of the Victorian Civil and Administrative Tribunal within a further period of 10 working days.

Any party to the Application for Review may request that the proceeding be brought on for further hearing in order that submissions may be made orally. The Tribunal of its own volition may also determine that this course is appropriate, having regard to the nature of any amended plans submitted."

Mr McMullan objected to this on the following grounds:

1. The Objectors believe that the determination of the Tribunal dated 31 March 1999 is beyond power.

2. The Tribunal is empowered, under section 51(2) of the Victorian Civil and Administrative Tribunal Act, to affirm a decision under review, vary a decision under review, set aside a decision under review and make another decision in substitution for it, or set aside a decision under review and remit it to the decision-maker.

The Tribunal, in its determination of 31 March 1999, has made, in effect, an advisory opinion, and afforded the permit applicant an opportunity to prepare amended plans, then imposed a 10 day review period for objectors, and an opportunity to apply to the Tribunal for a hearing on the amended plans.

The Objectors say that this goes further than the powers afforded to the Tribunal under section 51(2).

3. The Objectors say that the practice of the Tribunal, in this instance, to determine the respects in which the permit application is defective, and then afford the permit applicant the opportunity to prepare fresh plans:

(a) is inconsistent with the process set out in the Planning and Environment Act;

(b) substitutes a new permit application process without legislative power;

(c) is inconsistent with proper principles of judicial administration, in particular, this process arguably:

(i) pre-determines the success of the future application without affording the other parties a reasonable opportunity to be heard;

(ii) is an unwarranted judicial interference with the parties' conduct of their case (the Tribunal is being more pro-active in advising the permit applicant than is appropriate).

For the purpose of the hearing of this legal argument only, the Tribunal was reconstituted to include Deputy President Bruce. This is one of two procedural options. The other is that the legal argument would have to be made to Ms Baird, who is a qualified and experienced planner, but is not legally qualified, leading to two possibilities-

v Ms Baird could decide the legal questions with the consent of the parties.

v If the parties did not consent to Ms Baird, sitting alone, determining the legal argument, then under Clause 66 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, ("the VCAT Act"), arrangements would have had to be made for the question to be determined by a judicial member or a legal practitioner member nominated by the President. This would have probably meant a second hearing, as the proceeding was not recorded. In the event, one party made submissions orally, and a number of issues were the subject of oral elaboration in addition to the written submissions, so that the likelihood of a second hearing being required to determine the point became very high.

The Tribunal was reconstituted by Mrs Bruce under delegated powers, in order to enable the question of law to be determined by a legal practitioner. None of the parties objected to the reconstitution.

Messrs McMullin and Mitchell tendered written submissions, which they supplemented by oral argument. Mr Rantino presented the Council's argument orally, and his submissions were supported and further elaborated on by Mr Mitchell.

Mr McMullin submitted that the Tribunal had acted beyond power, in that the "determination" of 31 March 1999 went beyond the powers afforded to the Tribunal by Section 51(2) of the VCAT Act. This sub-section provides:

(2) In determining a proceeding for review of a decision the Tribunal may, by order--

(c) set aside the decision under review and make another decision in substitution for it; or

(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

Implicit in the first issue raised by Mr McMullin was an argument about the status of the document issued on 31 March 1999. While Mr McMullin accepted that it was not a final decision, he argued that it was intended to lead to a final decision, and sought to apply Section 51(2) as the enabling power relevant to it, in order to show that the option offered in it goes beyond what is allowable in a determination of the Tribunal.

The argument continued that the Tribunal had given an advisory opinion, which it has no power to do. The permit applicant had been given an opportunity to prepare amended plans, without reference to an enabling power under the Act, without an application from the permit applicant, and without the other parties being heard on the matter. None of this was within Section 51(2), under which the Tribunal is empowered to make certain orders in determining a proceeding for review.

There is in fact power in Section 125 of the VCAT Act for the Tribunal to give advisory opinions; but it is dependent on there being provision for this in the enabling enactment (in this case, the PEA Act). It was not suggested that Section 125 was relevant in this case.

It was further alleged that this process substituted a new design and application process at the Tribunal stage, without legislative authority.

Mr McMullin accepted that the powers under Section 51(1) of the VCAT Act are also available to the Tribunal for the purpose of the document issued on 31 March 1999, but argued that it must be read together with Section 51(2), as an enabling power related to the making of the decision.

(1) In exercising its review jurisdiction in respect of a decision, the Tribunal--

(a) has all the functions of the decision-maker; and

(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and

(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

If the "document" issued on 31 March 1999 had been a final decision, there would be no question of the Tribunal hearing this application with respect to it. The objectors' remedy would have been by way of appeal to the Supreme Court. Even if the "document" had been an interim order, the definition of "order" in Section 3 of the VCAT Act would make it subject to appeal under Section 148 to the Court.

Despite the wording of the grounds of application, Mr McMullin did not argue that the document is either an interim or a final order of the Tribunal, and was quite prepared to adopt a neutral expression for the purpose of the arguments which he did pursue. Whatever its status, his argument was that this document disclosed that a flawed process had been adopted on the way to a decision.

The passages in the document to which objection was taken are headed respectively "Conclusion" and "Direction". The general heading for the long passage headed "Conclusion" is "Reasons for Order". However, the reasons explain why the Tribunal came to the conclusion that the directions which were then given were the appropriate course. They do not justify a conclusion that the document is either an interim or a final order in the proceeding.

Mr Rantino, who appeared for the Council, with whom Mr Mitchell (for the Permit Applicant) agreed on this point, submitted that the document was a direction under Section 80(1) of the VCAT Act. Both argued that the "proceeding" had not been determined under Section 51(2) of the VCAT Act, although they differed on the role of Section 51(1). It is implicit in both arguments that the proceeding is not determined until the Tribunal makes an order under Section 51(2) of the VCAT Act.

Mr Rantino's submission in favour of the argument that the document is a direction took as its first point the fact that that is what it says it is. Under Section 80(1), there is power to make a direction of this nature while the proceeding remains on foot. The power, which may be exercised by any member of the Tribunal, is to -

"... give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding."

Mr Rantino's argument proceeded that the direction contemplated that if the Permit Applicant was minded to take up the option contained in it, at some point there would need to be an amendment of the application plans. This power also exists, and is found in Section 127 of the VCAT Act (in the case of a document in the proceeding), or in Clause 64(2) of Schedule 1 to the VCAT Act in the specific case of the application for the permit which is the subject of the proceeding, in case there was any doubt about whether the permit application fell within Section 127. Clause 64 provides (omitting references to other legislation not relevant for this purpose):

(1) This clause applies to the following proceedings--

(a) a proceeding for review of a decision under the Planning and Environment Act 1987 of a responsible authority in respect of an application for a permit or the failure of a responsible authority to grant a permit....

(2) At any time in a proceeding to which this clause applies the Tribunal may make any amendment it thinks fit to the application for the permit, works approval or licence the subject of the proceeding.

(3) Without limiting the generality of sub-clause (2), the Tribunal may make an amendment to an application for a permit under the Planning and Environment Act 1987--

(a) as to a use or development different from the use or development mentioned in the application;

(b) as to the land to the use or development of which the application relates.

(4) This clause is in addition to, and does not limit or affect section 127.

Clause 64 contains a very wide power, and is the appropriate power for the form of amendment contemplated by Ms Baird. It expressly includes power to amend the application to a use or development different from the use or development mentioned in the application. It even (as Mr Mitchell pointed out) authorises amendment of the land to which the application relates: see Clause 64(3). Mr Rantino submits that the direction was within power; and power to make the amendment which it contemplates also exists.

The use of the expression "at any time in the proceeding", in both Clause 64 and Section 80, is appropriate to the Tribunal's wide powers. It is not equivalent to the expression "at any time in the course of hearing an appeal" which appeared in Section 51 of the Planning Appeals Act 1980 (the original form of the power to amend a permit application), which would arguably limit the power to give directions and the like after the close of a hearing where no liberty to apply was reserved.

Mr Mitchell argued for an alternative head of power: that under Section 51(1) of the VCAT Act, the Tribunal could do everything that the Responsible Authority could do in the process of reaching a decision on a permit application. This included raising aspects of concern about the application and inviting revised plans.

However, this course of action, which may very well be followed by a Responsible Authority, is not part of the statutory process set out in Part 4 of the Planning and Environment Act 1987. It comes from the ultimate power of the Responsible Authority to refuse an application, which induces a permit applicant to negotiate. It may indeed lead to a failure to determine a permit application within the time limit, giving rise to an application to review that failure being lodged in this Tribunal. A de facto "power" of that nature is not appropriate to be included in the functions available to the Tribunal.

In the Tribunal's opinion, the "functions of the decision-maker" referred to in Section 51(1) are more appropriately considered to be limited to the functions of the Responsible Authority in making its decision, such as the imposition of conditions. The Tribunal's own amendment and directions powers render superfluous any wider incorporation by this reference of the pre-decision functions of the Responsible Authority.

The possibilities of amendment or refusal, put forward as the alternatives by Mr McMullin, were not the only options left open by the Tribunal. It should not be presumed that a refusal would follow if the Permit Applicant did not take up the option offered. The Tribunal had another power available. It did not have to decide between granting a permit or disallowing the Application to Review. As Mr Mitchell pointed out, it could decide to grant a permit subject to conditions, whether or not a new plan was submitted pursuant to its invitation. A condition which required an amending plan to be endorsed could address each of the matters identified by the Tribunal.

The Tribunal's "conclusion" and "direction" of 31 March did not refer to the use of the conditions power. However, in the context of a general indication that the proposed dual occupancy was not objectionable in principle, the availability of this power comes naturally to mind.

Under Section 85(1)(b)(ii) of the PEA, the Tribunal has its own "conditions" power, applicable to an application to review a decision to grant a permit. It can "grant the permit and direct that it must or must not contain any specified conditions". It also has a general power under Section 85(1)(d) to direct that a permit "must or must not contain any specified condition".

In addition, as already referred to, the Tribunal has the opportunity to exercise "all the functions of the decision-maker", under Section 51(1)(a). The extended conditions powers authorised by Section 62 of the PEA are also available to the Tribunal.

Section 62(2)(i) and (j) of the PEA give the Responsible Authority (the decision-maker in this instance) power to impose two relevant forms of condition. These are:

(i) a condition that plans, drawings or other documents be prepared by the applicant and lodged with the responsible authority for approval before the use or development or a specified part of it starts; and

(j) a condition requiring changes to be made to any plan or drawing forming part of the application for the permit."

Section 62(3) provides:

"The responsible authority may approve an amendment to any plans, drawings or other documents approved under a permit if the amendments are consistent with the Planning Scheme and the permit."

In issuing the direction, the Tribunal was not foreclosing its wide powers to achieve any required design changes by using its conditions powers. The process adopted was one possibility; but design changes could certainly have been stipulated in the order without the necessity for a new plan being prepared prior to the final determination and adopted by use of the amendment power in Clause 64.

The areas of concern expressed in the direction, as Mr Rantino pointed out, could not themselves have been directly translated into an order by way of condition. They were too broad. There would not have been the requisite degree of certainty as to the obligations placed on the Permit Applicant, or sufficient objective criteria by which the Responsible Authority could judge whether the condition was complied with in any new plan tendered. But this was not the final determination, and the criteria by which conditions must be assessed for validity are not relevant to the "conclusions" expressed in broad terms. The Tribunal could have articulated its concerns into a condition specifying a list of detailed changes if it had been minded to adopt this option. Such conditions are everyday occurrences.

The "option" given on 31 March 1999 allowed the preparation of an amended design which took into account the design goals, made the changes considered by the designer to be the appropriate responses to those goals, produced a plan that showed the amended proposal comprehensively for consideration by the parties, and made provision for further submissions. If accepted, that plan could be the basis of an order for the grant of a permit with the amended plan as the endorsed plan. This would make it unnecessary for a condition to be included in the permit setting out a list of required design changes. A condition of this nature further requires that the changes have to be shown in a modified plan, that would be have to be submitted for approval prior to commencement of development.

The option adopted by Ms Baird has two advantages over a condition of this nature. The first is that it leaves the designer to make the best he can out of the parameters laid down by the Tribunal, while ensuring that both the Tribunal and the other parties see where the parameters have led, and are able to address the question of whether the design is now acceptable.

The difficulty of rendering design details into words effectively, when a change to one part of the design may mean a consequential change to another part of it, creates a danger of unintended consequences if the Tribunal sets out a list of design changes as part of "a condition requiring changes to be made to any plan". A condition of this nature requires an amended plan to be submitted to the Responsible Authority, not to the Tribunal, for approval under the permit. If the plan comes back to the Tribunal as part of an amendment proposal, the Tribunal can be satisfied as to whether its intentions have been carried out satisfactorily.

The second advantage arises because the other parties would not have a right to be consulted about the appropriateness of the design outcome under a permit condition requiring a series of design changes under Section 62(2)(i) of the PEA. Once the conditional permit was issued, the plan submitted under it would go back to the Responsible Authority, which would consider whether it complied satisfactorily with the condition without reference to the parties other than the permit applicant, as Mr Mitchell pointed out. Objectors do not have standing to review decisions of this nature under Section 149 of the PEA.

Mr Rantino submitted that the Tribunal's preferred option was appropriate and useful; in giving this indication of the way the design should go, the Tribunal provided more guidance for a proper design standard than would be available in that other alternative, reasons for refusal of the application. The appropriateness of the subject land for dual occupancy use, subject to the application being of appropriate design, makes it likely that a further application would be made following a refusal of the form of development in the present application. Guidance for the future would be welcomed by the Permit Applicant and Council for that reason. The opportunity to amend to overcome perceived defects is even more welcomed by them because it also saves time and cost.

Messrs Rantino and Mitchell both summarised the situation in a similar fashion, which may be paraphrased as: A direction was issued, contemplating either that the Permit Applicant would apply for further amendment of the permit application with respect to a new plan prepared for the purpose of addressing the issues raised by the Tribunal, and that rights to comment and if necessary hold a further hearing would then flow from that; or that the Tribunal would go on to make its determination on the basis of the material before it if the Permit Applicant decided not to seek a further amendment of this application.

The Tribunal finds that Messrs Rantino's and Mitchell's interpretation of the position as at 31 March 1999 is correct. The document in which this position is expressed is properly characterised as a direction.

Section 51(2) of the VCAT Act has no application to this Review yet, because no decision has been made. If an attack is to be mounted under Section 51(2), it is premature at this point.

As the "proceeding" has not ended, both the directions power and the amendment power in Section 80 and Clause 64, and for that matter, the amendment power in Section 127, which is not limited or effected by Clause 64, remain open to the Tribunal, and were open for Ms Baird to use on 31 March 1999.

A finding of fact was made, in that the site was found to be appropriate for a dual occupancy development. As a matter of principle, this was not contentious, as "dual occupancy" does not require a use permit in the relevant zone. Whether the particular dual occupancy development was appropriate remained an open question. It is implicit in the direction that those aspects of the design that were identified as unsatisfactory were perceived by the Tribunal as possibly curable. The question of whether the perceived defects were serious enough to warrant refusal had not been determined.

Mr McMullin moved to his second objection, that the Tribunal was embarking on "interactive decision-making" by setting out a list of design concerns and inviting the Permit Applicant to respond with a new plan before a final determination was made.

Mr Rantino pointed out that Mr McMullin was careful not to criticise the equity or fairness of Ms Baird's action. This was indeed emphasised by Mr McMullin. If the direction is to be invalidated, it is not on this ground.

Was the direction inconsistent with proper principles of judicial administration?

Mr McMullin submitted that the Tribunal had determined the respects in which the application was defective. Having done so, to afford the Permit Applicant the opportunity to prepare fresh plans was inconsistent with proper principles of judicial administration.

While Mr McMullin accepted that it was appropriate for the Tribunal to articulate its concerns, and indicate what it wished to see, he argued that this should not lead to an opportunity to submit, direct to the Tribunal, new plans taking into account the matters that the Tribunal had indicated were unacceptable. He submitted that there was an inference that if its concerns were met, the Tribunal would issue a permit on the basis of the new plans. Nor should the Tribunal give the Permit Applicant a choice whether to prepare amended plans or not, and to come back with the new plans if it chose.

Mr McMullin accepted that the difference between what he called an advisory opinion and a conditional decision was a matter of degree. He would not challenge a condition requiring an increased setback; but in giving a "general indication", and allowing the Permit Applicant to come back with a fresh plan, he asserted that the Tribunal was taking on the role of the designer, instead of the review body. This raises the danger of the Tribunal becoming an interactive decision maker, which is contrary to sound principles of judicial administration.

Mr McMullin distinguished between the role of an expert Tribunal, expected to make use of the expertise of its members, and descending into the arena to become a designer of the project. By showing what will satisfy the Tribunal, he argues, the Tribunal places itself too close to what the applicant does, and destroys what he describes as "judicial reservation". While he agrees that the Tribunal did not promise the Permit Applicant a permit if it did what was indicated, he submits that it looks like a promise, or what is described in his written submission as a "quasi-binding promise"; or at least a prejudgment. He argues that if the Tribunal is to take on a design role, Parliament must authorise it; but the present legislation does not do so. Nor is it desirable in principle.

Mr McMullin referred to the judgment of Kirby JA in The Council of the Municipality of Burwood v Harvey (1995) 86 LGERA 389, a decision of the NSW Court of Appeal. This decision quoted and approved a passage from Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55, in which Lord Denning, delivering the judgment of the Court, stated the principles of an adversarial court system, referring to the role of the judge and advocates. The passage relied on (at 64) is:

"The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumed the robe of an advocate; and the change does not become him well."

The context of this statement is that of civil and statutory actions by a widow for damages for an accidental death, proceeding in a Court before a judge. The issue was whether the judge had intervened excessively in the course of the evidence, especially cross-examination. This is far from the context of a review by this Tribunal of the decision of a Council whether or not to grant a permit. There was no question of powers such as this Tribunal's, which include powers to inform itself as it thinks fit, and to inspect in the absence of the parties. There was no expectation that many parties will represent themselves, and no limit on the right of parties to legal representation, as there is in Section 62 of the VCAT Act. There was no analogy in that context for the existence of the statutory authority to impose a condition requiring changes to be made to the application plan, i.e. one of the documents which is the subject of the review process.

Indeed, the whole context of the conduct of cross-examination in a trial is so different from the question of whether this Tribunal has power to invite an amendment of permit after the hearing has concluded that the Tribunal does not find the authority helpful.

Of more relevance is Harvey's case. The decision in question in that case was one of the Land and Environment Court of NSW, but not its planning jurisdiction. The subject of the trial was a compensation claim for compulsory acquisition. This is also far from being comparable to a planning review in this Tribunal; but Kirby P, in his statement of the reasons for observing the conventions of the Courts, despite the changes to the conduct of civil proceedings which have taken place in recent times, includes reference (at 396) to the creation of expert Tribunals with several of the features of this Tribunal -

"with specialised judges and other members, novel standing rights and modified procedures aimed to facilitate, if not actually encourage, persons to pursue, or defend, their legal rights without the necessity of securing qualified legal practitioners to represent them".

The Harvey case was about the judge becoming a "combative advocate" by excessive intervention in the evidence. He was said to have assisted an unrepresented claimant to the point where a "reasonable apprehension of bias" against the other party was alleged.

If it were alleged in this case that the direction of 31 March 1999 showed bias in favour of one party, Harvey's case would be directly relevant. But it is not.

The Land and Environment Court is a court. Kirby P drew a distinction between an administrative Tribunal and a superior court of record, which is what the Land and Environment Court is, even though its judicial charter includes similar wide provisions to this Tribunal's position under Section 98 of the VCAT Act. Kirby P referred to these powers as "providing a measure of flexibility in the conduct of proceedings" (at p. 404). But, he continued,

"... in such a court it cannot have been Parliament's intention to provide an extensive jurisdiction to depart from the procedures normal to a superior court of record in this country and especially where the consequence is an apparent departure from procedural fairness: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 366."

Mahony JA agreed that the Act provided for the conduct of proceedings in the Land and Environment Court that would not be acceptable in an ordinary court, but considered that this should be taken into account in determining the applicability of the principles relating to judicial intervention, rather than making such principles irrelevant.

Mahony JA also referred (at 410) to the possibility that a trial may miscarry when it is taken out of the hands of the parties, leading to an appearance that the judge has failed to decide impartially the issues that he had taken up and pursued. It is the right of the parties to conduct proceedings in the manner which they believe likely to serve their purposes - within appropriate limits. Mr McMullin submitted that the hearing in the present Application had been taken out of the hands of the parties by the Tribunal's intervention in inviting further amendment after the end of the hearing. He adds that the Tribunal is being more pro-active in advising the Permit Applicant than is appropriate. Whether this has an appearance of lack of impartiality is a matter of serious concern to the Tribunal, despite Mr McMullin's assurances that the equity and fairness of this hearing are not placed in question.

The reasons which Kirby P gave (at 397) in support of the "traditional distance, neutrality and limited intervention which have been features of judicial conduct in our own system if justice" include -

"... the need, every day, to win the confidence of the litigants and their acceptance that the judicial officer has approached the controversy presented to the Court with detachment and equal attention to the arguments of each party. The losing party, in particular, must not be left with a sense of grievance that the judicial decision-maker has taken on the cause of, or become too close to, its opponent.....

If a party feels that the decision-maker is not neutral, but has taken on the cause of its opponent, the central point of decision-making will have been lost. The losing party will not only be disappointed. It will be disturbed at the apparent failure of the judicial institution to operate as intended and expected."

The need for the community to accept the orders of the Tribunal is comparable to the need for acceptance of the authority of the orders of a court. The integrity of the process is described by Kirby P as the ultimate foundation of this acceptance, as well as of the judiciary's authority.

However, the excessive intervention by a trial judge in the conduct of a compensation claim which was proceeding along traditional lines is a far cry from the actual issue in the present case.

Nothing critical is said here about the conduct of the Tribunal during the hearing; indeed any criticism of the Tribunal's conduct of the hearing is denied. The issue is one that could not come up in the context of the trials referred to in the cases cited, because it is involved with the power of the Tribunal to amend, or to impose conditions, in a manner that will change the plans which form part of the application for permit. It is not even necessary for an amendment of the permit application to be sought, if the Tribunal decides that certain features of the application should be modified in order to achieve an acceptable outcome which should be the subject of a permit. It can require the modification by condition.

The Tribunal is yet to determine this Application to Review, and still has available for its future use the conditions power in Section 62(2)(i) and (j) of the PEA pursuant to Section 51(1)(a) of the VCAT Act. The Tribunal's powers should be liberally construed, in accordance with the flexibility that is such a feature of the Tribunal's jurisdiction as illustrated by the various powers and functions that have been referred to.

The process that would have been appropriate, in Mr McMullin's submission, would have been to adjourn the proceedings, subsequently deal with an application to amend the plans, and then determine the Application to Review.

However, this would not be a practical suggestion unless the Tribunal had already formed the opinion that certain design changes may be desirable, if not critical to the decision, before the end of the hearing. In this instance, it was after the view took place that the possibility of a further amending plan was raised.

The wide powers of amendment of a document created before the Application to Review commenced, found in Clause 64 of Schedule 1, have already been referred to. A further power available to the Tribunal was exercised in relation to the view, or inspection of the subject land and surrounding area, conducted by Ms Baird prior to 31 March 1999.

As Mr Mitchell pointed out, the Tribunal is entitled to inform itself on any matter as it sees fit, subject to the rules of natural justice: Section 98(1) of the VCAT Act.

The Tribunal's power to inspect is usually exercised in a "planning enactment" case after the end of the hearing and without a formal arrangement by which the parties or their representatives are present, unless entry to a building is required (which was not required in this instance). Inspection by the Tribunal without the parties is allowed for in Section 129(1)(a) of the VCAT Act. It is possible that something arising upon an inspection which occurs in the absence of the parties might require that the hearing be reconvened, if the Tribunal considers the parties should be invited to make submissions on a question that came to prominence, or perhaps came to the Tribunal's attention for the first time, during the view. The legislative framework setting up this possibility must carry the implication that the power to issue directions also remains open until the final decision is made, as the Tribunal is bound by the rules of natural justice under Section 98.

However, using these powers to reconvene the hearing and invite further amendments to the application plans is not a practice that should be adopted as a matter of course. It has disadvantages. It exposes all parties to the proceeding to an element of uncertainty that the close of the hearing is not to be the end of the opportunity that the parties have to put their case to the Tribunal; and it also extends the length of the proceeding.

The Tribunal has to be zealous to guard against creating an impression that the Permit Applicant is being given a chance to improve its position by turning a potential "loss" of a contested proceeding into a "win". While the Tribunal is bound to implement the purpose of the Good Design Guide as set out in Clause 21 of the Regional Section of the Planning Scheme, which includes ensuring that new developments maintain or enhance existing neighbourhood character and amenity, the nature of the proceeding is a contested Application to Review. The Tribunal must also be concerned with the fair determination of the contested proceeding as between the parties.

A powerful argument, put by Mr McMullin, is the effect on the Tribunal if it became accepted as a matter of course that the Permit Applicant could ask for the Tribunal's preliminary thoughts, and then come back with new plans to overcome any disclosed reservations about the design. Certainly this is not the role of a review body. If there is an area within which the Tribunal can legitimately afford an opportunity for the Permit Applicant to overcome perceived deficiencies without the Tribunal refusing a permit and causing it to start again with a fresh application, this area must have defined limits. Further, there must be some justification in the circumstances of the case for it. A judgment that the potential improvement would be in accordance with Clause 21 cannot alone be sufficient justification, as that would apply to every case where design deficiencies could be identified.

Mr Rantino described the process set out in the direction as one designed to advance the proceeding. This is a proper role for a direction. He proceeded to describe his client's understanding of the situation, exploring as he did so the possible extent of the limits of this power.

The process does not seek to exclude relevant parties: the Permit Applicant is invited to submit a new plan, other parties are invited to make submissions about the amended plan, and a party can request a hearing on it.

The Council's attitude is to first see the new plan, and then decide its response. The Council sees its options as:

v If on seeing the plan, Council is of the opinion that it is a "transformation" of the development, Council reserves its right to submit that further advertising should be ordered, as it would then consider the general community, not only the parties; or

v Council may have no objection to the plan, in which case it would maintain its present support for the proposed development; or

If the new plan did bring about a "transformation" of the proposal, Mr Rantino submitted that the Council would object on the basis of the principle in Addicoat v Fox [No.2] [1979] VicRp 37; [1979] VR 347, a decision of Brooking J, in which the ambit of earlier powers of both a Responsible Authority and an Appeals Tribunal to permit variations was considered, in the context of an application for use of land as a shopping complex.

The facts were that notice of the application had been given in terms of the proposed "use". After objections had been received, the Permit Applicant had lodged two different plans, and the Council had determined to grant a permit subject to conditions, not only for the use, but also for development of the subject land. Following issue of the notice of decision, another plan was submitted. The plans were different in the degree of detail - or lack of it - of the development proposal included in them. The last plan was the subject of an indication by the Tribunal on appeal that if it had the power to do so, it would have directed the issue of a permit subject to a condition that the development be generally in accordance with the last plan. (The language of the legislation of the time was "appeal" rather than Application to Review.)

The power to grant a permit varying from the application was the subject first of an appeal to the Town Planning Appeals Tribunal, and then from the Tribunal to the Court. The Tribunal at that date had a statutory power to disregard failures to comply with the Act or regulations (similar to the power now contained in Clause 62 of Schedule 1 to the VCAT Act); and also had a duty to act according to equity and good conscience and the substantial merits of the case without regard to technicalities and legal forms (being similar to the duties now contained in Sections 97 and 98(1)(d) of the VCAT Act).

The power of the Tribunal to directly amend the permit application was not part of the range of powers available at that time. There was no express equivalent to Section 62(2)(i) and (j) or Section 62(3) of the PEA. The Court was dealing essentially with general principles of the limitations on conditions powers to effect variations of an application.

In that context, the Court found that the power to grant or refuse to grant a permit, or to grant it subject to conditions, did not authorise the Tribunal to direct the issue of a permit without regard to the subject matter of the application for permit. The conditions power is treated as having been conferred as an incident of the power to determine the appeal, and the appeal is against the determination to grant the permit the subject of the application (at p.364).

The powers available to the Tribunal were found (at 365 and 366) not to enable it to direct that a permit issue in respect of a use or development which differs from the use or development the subject of the permit application -

" ......so radically that the direction cannot be supported as an exercise of the power to direct that the permit applied for be issued subject to conditions."

This was put in a slightly different form (at 366), in relation to the power to disregard technicalities or legal forms. Brooking J found that this power did not authorise the Tribunal in dealing with the case to treat the application as if it were an application for a radically different development or use. But "radical difference" is the test in the case of both the powers in question.

An example of an impermissible use of the Tribunal's powers given by Brooking J, quoting from a previous Tribunal decision with which he disagreed, was if the Tribunal were to direct the issue of a permit for a factory when the permit application was for a block of flats (p.367).

It is not seriously contended by anyone for the purposes of this hearing that Clause 64 authorises amendment to the extent that the project described in the permit application is transformed into a different project.

Mr Mitchell submitted that Clause 64 was a specific legislative response to the limitations considered in Addicoat v Fox [No.2]. However, although he argued that Clause 64 has a very wide scope, he agreed that there must be some limit on its use; and at least did not disagree when it was put to him that the project had to stay the same, even if both the use and development for the purpose of the project could be modified by use of the amendment power.

Brooking J expressed concern in Addicoat v Fox [No.2] that a consequence of the argument for wide powers in the Tribunal to direct the issue of a permit for something radically different from the permit application would be the diminution of the safeguard afforded to persons to whom notice of an application was required to be given. This safeguard is just as important now as it was then. Brooking J referred to previous decisions in which the Tribunal had expressed differing views on whether it had power to require the advertisement of an amended plan put before it at the hearing. It was not necessary for him to decide this issue, but he expressed the following opinion (at 367):

"I am disposed to think that the only power which the tribunal has to require the giving or publication of notice is that expressly conferred by s.20(3) and (4). But even it the tribunal did have power to require the giving or publication of notice of an amending proposal concerning use or development, the existence of such a discretionary power would not afford the same protection as the mandatory and explicit provisions of s.18B."

The reference to Section 20 is to the Town and Country Planning Act 1961, and relates to the giving of notice of an application once an appeal was lodged, the present version of which is found in Section 83B of the PEA. It does not refer to amendment of an application, but to inadequate notification, or no prior notification, of the permit application (such as can occur where the Responsible Authority decides to refuse an application).

This passage gives some support for Mr McMullin's argument that the notice given by the Tribunal is of less value to the community, or that part of it that may be affected by an application, than the notice provisions of Section 52 of the PEA, which carry rights to object and to review an adverse decision.

In the present case, however, it is considered that the question of the giving of notice is not the same as the question considered by Brooking J. If Ms Baird had formed the view that the design changes which she contemplated were so different, or included such features, that persons other than the parties to the Application to Review might be affected by them, she would have had to give consideration to a procedure for notice to persons other than parties. It is in that context that the doubt expressed by Brooking J belongs. The Tribunal has no express statutory power to initiate a new round of notices to persons who are not parties to the proceeding, introducing a series of opportunities to object or to make application to be joined as parties to proceeding where the hearing has been completed.

In the present case, the Tribunal has only been concerned with notice to the parties before it. Directions to ensure they are properly informed and have an opportunity to comment on the changes in contemplation do not exceed what may properly be done in the course of the proceeding as a matter of extending natural justice to them.

It may be otherwise if the changes proposed were greater. The question would have to be asked whether the fact that other persons who were not parties might be affected by the revised proposal was an indication that it went beyond what may be achieved by proper use of the amendment power or the conditions power. If additional notices were thought to be necessary as a matter of extending natural justice to affected persons not already before the Tribunal, it may be that the application would be "radically different", or transformed into a new and different application, which should properly be dealt with by the Responsible Authority before coming before the Tribunal in its capacity as the review body.

Addicoat v Fox [No.2] also dealt with the role of conditions in bringing about modifications of a permit application. Brooking J (at 360) was considering the question at the Responsible Authority level, where the notice period had closed, objections had been received, and the applicant wished to provide a further document, such as an amended plan, and invites the Responsible Authority to grant a permit which is for development in accordance with the amended plan. This is done -

"... not by way of varying his original application, but by way of inviting the Responsible Authority to grant his original application subject to the condition that the original plan be amended in the respect concerned. In deciding whether it has power to accede to this application, the Responsible Authority will have to consider whether the effect of the amendment is such that the original use or development proposed is being permitted subject to a condition or, on the other hand, a different use or development is being permitted."

Brooking J referred (at 362-363) to numerous Tribunal decisions where a range of responses to unsatisfactory applications was demonstrated. These included giving an expression of opinion about a lesser development that might be accepted although the actual application was refused; the grant of a permit for a lesser development (such as directing a permit for 7 units when the application was for 8); directions for the issue of a permit subject to a condition that a new plan be prepared in the light of objections made to the proposal during the hearing; or conditions varying the setback from the boundary or the relocation of windows, which are relevant in this instance.

The statement in which Brooking J drew all these various examples together has since been the guiding principle by which the use of the conditions power to authorise modification of the application has been tested. He found (at 363):

"In my opinion, a power to grant a permit subject to conditions authorizes the Responsible Authority to grant a permit for a use or development which differs from the use or development the subject of the application for permit, provided that the difference is not so radical as to enable it to be said, viewing the matter broadly and fairly, that to grant a permit on the supposed conditions would not be to grant the permit applied for with modifications, but to grant a different permit. This is plainly a matter of degree, and indeed is almost one of impression. In my view, the changes made may be considerable without necessarily bringing it about that the permit granted is a different as opposed to a modified permit."

The Tribunal considers that this still remains the relevant principle, as all amendments and all conditions still have to be seen in the context of the application to which they are a response, no matter how broad the powers to make changes in various ways may be.

In going on (at 363) to state that he found it unnecessary to decide whether more might be accepted by way of limiting the development than by extending it, his Honour summed up the distinction between what was allowable and what was not as -

"the point ....at which alteration ceases to be modification and becomes transformation".

It may be thought that the express power in Clause 64(3)(a) to amend to a use or development different to the one mentioned in the application supplies the power to amend to a "radically different development or use". However, we are not in this instance dealing with a radical difference, but with design details. If the Permit Applicant takes advantage of the Tribunal's directions to submit a new plan, it will still be a plan for two 2-storey town houses, although the building details would be altered by reduction of certain parts of both the ground and the upper floor plans, and to show greater articulation of the façade and certain other walls.

The Tribunal considers that the process adopted by Ms Baird simply gives the Tribunal and the parties a chance to see in plan form the total impact of design changes which could have been required by a condition to vary certain features of the design. The Tribunal may never have to decide whether to grant a permit on the original plans, or grant a permit containing conditions detailing design changes, or refuse a permit, because the direction may result in an amendment which the Tribunal considers satisfactory. But this procedure allows the other parties to comment on the detail of design changes which are in the Tribunal's contemplation, as part of a complete picture, preserving unity of design. Directions given for the process by which this can be achieved can be within power, and this direction was.

The Tribunal's power to achieve changes to the design - but not transformation of the application - whether by use of the amendment power or by proper conditions, should be considered to be defined by the principles set out in Addicoat v Fox [No.2].

There remains open the possibility for argument that any plan submitted does or does not exceed the scope of the directions given.

It would be premature to determine that any changes which the Permit Applicant may seek to make pursuant to the directions must go beyond modification and amount to a transformation. The proposed amendments have not yet been brought into existence. The directions as to what is contemplated do not inevitably require that in taking up the option to submit a new plan, the Permit Applicant must exceed what is allowable. Any plan submitted can be considered and tested by the other parties in accordance with the course of action outlined by Mr Rantino.

Mr McMullin finally submitted that Section 80(1) of the VCAT Act does not give the Tribunal power to do by directions what it could not do in its determination. The Tribunal accepts that in its final determination, it would have to achieve any design changes considered appropriate by use of the conditions power.

The Tribunal is of the view that this proceeding has not been finalised, and both the directions and the amendment powers were still available to the Tribunal on 31 March 1999, when the direction was issued.

However, the use of the directions power to invite an application for a further amendment after the close of the hearing should be sparingly exercised. Especially, it should never be assumed that the Tribunal will accede to a suggestion for further amendment made on the initiative of the Permit Applicant at the end of a hearing, after the other parties have closed their cases.

The expeditious determination, as well as the fair hearing, of the proceeding is an objective of the directions power in Section 80. It is generally contrary to the interest of expeditious determination to have an amending plan introduced after the close of the hearing, because it necessitates another round of submissions and probably another hearing. Mr Rantino offered a justification for this delay, submitting that if a permit was refused on grounds related to matters of design detail, there would probably be a further permit application involving the same parties; and it was not only the Permit Applicant who would be inconvenienced by having to start again with a new application to the Council. While this is appreciated, it should not be assumed automatically that a second application following a refusal for which reasons have been provided will return to the Tribunal for a second review hearing. The various interests would appear to require a balance to be taken in the particular case between the delays and costs associated with a refusal for readily curable design defects, and consideration of how easily and quickly the design deficiencies can be rectified (assuming that the nature of the changes is within power).

The questions of law raised in this application were determined by Mrs Bruce, who is a legal practitioner, under Clause 66 of Schedule 1 to the VCAT Act.

It should be noted that references to the powers of the Tribunal as set out in Schedule 1 to the VCAT Act are specific to "planning enactments" as defined, and do not necessarily apply to other classes of proceeding: see Section 58 of the VCAT Act.

The objection of the Applicants for Review to the Tribunal's direction issued 31 March 1999 is disallowed.

Mr J McMullin, solicitor, represented the Applicants for Review, Mr R Dretzke and 18 other objectors.

Mr J Rantino of Maddock Lonie & Chisholm, Lawyers, represented the Responsible Authority.

Mr D Mitchell, of Best Hooper, Lawyers, represented the Permit Applicant.

Civil and Administrative Tribunal Act 1998

Environment Act 1987

Country Planning Act 1961

Dretzke v Boroondara CC [1999] VCAT 920

At a glance

Court

Decision date

Source

Judgment (171 paragraphs)

Dretzke v Boroondara CC [1999] VCAT 920 (31 May 1999)

Parties

Legislation Cited (4)

Cases Cited (2)