2. This request for cancellation of a permit brought under s.87 of the Planning and Environment Act 1987 is adjourned to an administrative mention on 30 September 2004.

Mr. Colin Taylor, solicitor of the firm of Russell Kennedy Solicitors, appeared for the requestors.

Mr. William R. Leahy, respondent, appeared in person.

There was no appearance by or on behalf of the responsible authority.

Request under s.87 of the Planning and Environment Act 1987 (PE Act) for cancellation of a permit.

NATURE OF APPLICATION MADE ON 13 SEPTEMBER 2004

Application under s.92 PE Act for a stop development order.

Cancellation of planning permit 357/2004 issued on 5 August 2004 which permit allows the construction of a 2 metre high colourbond fence close to portion of the southern side boundary of the review site.

Residential 1 zone and subject to a Design and Development Overlay (Schedule 7), a Heritage Overlay (Schedule 8) and a Special Building Overlay under the Port Phillip Planning Scheme.

1 The hearing on 13 September 2004 was an urgent one in relation to the request of Mr. and Mrs. Foster for cancellation of planning permit 357/2004 issued by the responsible authority on 5 August 2004. That permit allows the construction of a 2 metre high colourbond fence on portion of the southern (side) boundary of their land.

2 Mr. and Mrs. Foster occupy the adjoining property to the south. They have initiated proceedings under s.87 of the Planning and Environment Act 1987 (PE Act) seeking cancellation of the permit. This urgent application was made under s.92 of the Act whereby they sought a stop development order in relation to the carrying out of the building works permitted by the permit. It was common ground between the parties that construction of the section of fence had commenced on the morning of 13 September 2004. Some posts had been erected. Mr. and Mrs. Foster were concerned that, if the works were completed in accordance with the permit they would be unable to seek cancellation of the permit. Section 88 PE Act would bar their request proceedings in those circumstances.

3 Their request proceeding under s.87 PE Act was founded alternatively on the grounds under that section of concealment or misstatement of material facts in relation to the application as a first alternative, and failure to give notice under s.52 PE Act on the other.

4 There are other proceedings, and other disputes, between these neighbours. One existing proceeding before the Tribunal is P1847/2004. That is an enforcement order application in relation to another portion of the colourbond fence on or near the common boundary. That matter has been before the President of the Tribunal on a Friday who has apparently directed it to be fixed for hearing on a date in October 2004. However, that matter is not before me, and neither are the other disputes.

5 This present case concerns a length of fence 7.5 metres long and 2 metres high to be erected between two existing sections of such fence to its east and west.

6 On the Foster side of the fence there is a walk-way down the side of their house. There are habitable room windows looking out onto this walk-way as depicted in the endorsed plans in relation to the permit that was granted in August 2004. However, it is claimed, and admitted, that there are two more habitable room windows looking out onto this walk-way that are not depicted on those plans. It is claimed that the proposed section of fence will or may adversely effect these habitable room windows in terms of the outlook from them, and possibly by some shading of them, although they would not be shaded at the equinox.

7 The proposal is for the colourbond fence to be erected parallel to the common boundary, but not on that boundary. There is an existing brick wall along the boundary. It is agreed that this brick wall is 1.5 metres high. There is a trellis on top of it. It is claimed by Mr. Leahy (respondent) that the trellis is 0.75 metres high giving a total height of the wall and trellis at 2.25 metres. It is agreed, on behalf of Mr. and Mrs. Foster, that this trellis is at least 0.6 metres high. That minimum figure would give an overall height of 2.1 metres.

8 The trellis obscures the view through it to the extent of 75% leaving only little squares of transparency amounting to 25% of the whole.

9 The proposed colourbond fence would be inside the Leahy property, parallel to the brick wall, but set back from it by a short distance. It would not be as tall as the combined height of the brick wall and the trellis.

10 So far as the majority of the length of this fence is concerned (amounting to 4 metres or 4.5 metres) there is, beyond the site of the proposed fence, a shed which is parallel to the brick wall and set back from it by only a short distance.

11 There are four sets of planning controls effecting this land pursuant to which planning permission might be required. First of these arises from the land being situated in a Residential 1 zone. So far as the zone provisions are concerned, no planning permission is required for the proposed fence.

12 The land is also subject to a Design and Development Overlay under cl.42.02 of the planning scheme and a Heritage Overlay the provisions of which are found in cl.43.01. These overlay provisions, and the relevant schedules thereunder, were referred to in the course of the hearing. It was there found, and agreed by the parties, that the requestors could have no complaint under those provisions either because no planning permission was required for the fence, or the application was exempt from the requirement to give notice.

13 Mr. Taylor, on behalf of the requestors, indicated that his clients relied upon the Special Building Overlay in cl.44.05 of the planning scheme. Examination of that clause, together with its schedule, discloses that a permit was required under those provisions for the fence. Clause 44.05-1 provides that a permit is required to construct a building including a fence. That provisions goes on to say that it does not apply if a schedule to the overlay specifically states that a permit is not required. The schedule provides that a permit is not required to construct a fence that is the same height and constructed of similar materials to an existing fence. This colourbond fence would not be of the same height and not constructed of similar materials to any existing fence. Therefore, at least technically, a planning permit is required.

14 The Special Building Overlay is included in the planning scheme for particular purposes. Apart from purposes of general application and a purpose in relation to the protection of water quality those purposes, so far as relevant from present purposes are concerned, read as follows:

To identify land in urban areas liable to inundation by overland flows from the urban drainage system as determined by, or in consultation with, the flood plain management authority.

To ensure that development maintains the free passage and temporary storage of floodwaters, minimises flood damage, is compatible with the flood hazard and local drainage conditions and will not cause any significant rise in flood level or flow velocity.

15 Clause 44.05-1 provides for referral of applications to the relevant flood plain management authority. It appears from documents on the Tribunal file that such referral is carried out, and there was no contention on that point.

16 Clause 44.05-5 specifies a number of decision guidelines to be taken into consideration by the responsible authority in deciding whether to grant a permit. These are said to be in addition to the guidelines in cl.65 of the planning scheme. The specified guidelines are to be considered "as appropriate".

17 Each of these were considered. None of them gives rise to any concern, so far as the granting of the existing permit is concerned. So far as the relevant purposes of the Special Building Overlay are concerned, and so far as the decision guidelines are concerned, the proposed fence will make no difference to the pre-existing situation. Any effect on the free passage or temporary storage of flood waters or the minimisation of flood damage or compatibility with flood hazard or level or velocity are concerned will remain unaltered because of the effect achieved, in any event, by the presence of the existing brick wall. The situation will remain unchanged in relation to the area generally, and in relation to the neighbouring property in particular.

18 While it is true that the overlay lacks any provision specifically exempting the giving of notice to the owners and occupiers of neighbouring land, I am nevertheless quite satisfied that the responsible authority was correct in its decision not to give or require the giving of notice of the permit application under s.52 PE Act.

19 The test as to whether notice is required to be given under s.52 is a high and stringent one, particularly in relation to the owners and occupiers of adjoining land. Nevertheless, in the circumstances of this case, I consider it to be quite clear that no such notice was required. On that basis the ground of failure to give notice under s.52 cannot be established.

20 The other ground that had been mentioned in the request document was that under s.87(1)(a) PE Act namely concealment or misstatement of fact. The circumstance relied on in relation to this ground is the failure to depict the two habitable room windows facing the common boundary that I mentioned previously. There is no question that these two windows exist. It is admitted by Mr. Leahy, and therefore common ground between the parties. However, it is immaterial so far as the purposes of the overlay are concerned.

21 Mr. Taylor sought to argue that other general amenity considerations were relevant to whether a permit should be granted and that his client should have been given notice of the permit application for that reason. I consider this submission to be clearly incorrect.

22 The purposes of the Special Building Overlay referred to above, and the design guidelines relate to questions of flooding, flood flow, flood storage, flood damage, flood velocity and the like. They do not relate to amenity in terms of outlook from habitable room windows or shadowing by new buildings (including fences).

23 Mr. Taylor points out that the decision guidelines in cl.44.05-5 are to be considered "as appropriate" in addition to the decision guidelines in cl.65.

24 Clause 65.01 contains general decision guidelines in relation to an application for a permit. It provides that, before deciding on an application, the responsible authority must consider "as appropriate" certain specified matters. I consider that "as appropriate" in this context involves the concept of relevancy. A consideration, although specified, is not "appropriate" for consideration if it is not relevant to the purpose of the control under which the permit is required. Alternatively, it is sufficient to consider it only so far as necessary to determine that it is not relevant. I consider this approach to be in accordance with well known principles frequently referred to in planning decisions including National Trust of Australia (Vic) v. Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VicRp 60; [1976] VR 592; (1976) 37 LGRA 172.

25 Of the considerations listed in cl.65.01 Mr. Taylor sought to rely on the following two:

26 I do not think that the current case raises any questions of orderly planning. Apparently, Mr. Taylor wanted to argue that the term "orderly planning" is more or less synonymous with good planning. I do not agree with this. Orderly planning, in my view, means a proper order in planning. This might refer to an appropriate hierarchy, but normally means avoiding premature decisions that might pre-empt proper and orderly planning. Sometimes the future planning of an area is in flux, or at least in doubt, and where proper planning permit applications decisions are dependent on planning policies or decisions in relation to planning controls that have yet to be made. For example, it may (or may not) be contrary to orderly planning to make a premature decision before the outcome of a revision of zoning or the preparation of an outlined development plan that is foreshadowed but not yet determined. I do not think questions of orderly planning arise in relation to the permit for this fence.

27 The other consideration pointed to does mention amenity, although it is the amenity of the area, rather than specific amenity in relation to a limited aspect of a single adjoining dwelling. Nevertheless, I suppose even this limited aspect is in the area and might be argued to raise, in a very confined way, an aspect of amenity in relation to a limited part of the area. It is in this context that questions of overshadowing and prospect from windows are raised.

28 Even if amenity in relation to the two habitable rooms on the adjoining property was in issue there is no suggestion that shadowing would reach the windows, even at the equinox. In fact, there would be no shadowing of the windows from the proposed fence because it would be subsumed in the existing shadow of the brick wall and its trellis which is higher than the fence, and located between the proposed fence and the windows. If it was to be argued that the shadowing relates to such beams of light as might penetrate in the little squares between the slats of the lattice work, I would disregard that consideration as trifling. The same applies in relation to the prospect from the windows. Any views of the fence from the window will be obscured, completely by the brick wall, and almost completely, indeed to all intense purposes completely, by the lattice. Any views through the lattice I would disregard as trifling.

29 Mr. Taylor argued that, for the interim relief he sought in terms of a stop work order, he need only establish an arguable case. At the end of the hearing I announced that I would refuse to make the stop order sought on the basis that he had been unable to make out a case to warrant such relief. At its highest he raised two amenity points which can as readily be understood at this preliminary hearing as at any other time and which, so far as planning merits are concerned, raise only trifles.

30 More fundamentally, those considerations do not relate to the purpose of the control under which planning permission was required and thus the purpose for which planning permission was needed and are therefore irrelevant and inappropriate to take into consideration.

31 In all the circumstances I consider that the responsible authority was correct, in the circumstances of this case, not to require giving of notice under s.52 PE Act. I would not have given it, or required it to be given.

32 I said that I would dismiss the application for a stop development order under s.93 for these reasons, explored in the course of the hearing. That does not dispose of the request, although the adverse view I have taken may cause Mr. and Mrs. Foster to review their desire to proceed further with this case. It appears to me to be futile. I dare say it will become even more futile if the fence allowed by the permit is constructed in accordance with the permit and its endorsed plans, there being no order to restrain its completion. While dismissing the application under s.92 I will otherwise adjourn this proceeding to an administrative mention on 14 October 2004. The parties are not required to appear on that date. The requestors' solicitors should advise the Tribunal and each other party in writing by that date as to whether they seek leave to withdraw the request proceedings, or whether they have commenced an appeal against this decision. The avenue of appeal is to the Supreme Court, but the scope is limited to a judicial review of any alleged errors of law.