Victorian Civil and Administrative Tribunal|2000-05-31|Before: Sylvia J

Frankston CC v Kaybea Pty Ltd & Anor [2000] VCAT 1149 (31 May 2000)

PLANNING LIST Application Nos. 1999/24121 & 2000/33540

Town Planning, Planning List, Enforcement Order Application, Request for amendment of existing permit, Sections 114, 87(1)(b) and 87(1)(d) Planning and Environment Act, "to the satisfaction of the Responsible Authority", permit conditions, s 62(2)(a),"substantial", "material", substantial failure to comply with permit conditions, material change in circumstances, delegation, permits containing delegation of discretion, illegal delegation, drafting of conditions, reference to extraneous documents, s 90(1)(d).

RESPONDENTS: Kaybea Pty Ltd (ACN 005 668 100) and

The land in Certificates of Title Volume 8112 Folio 950 and Volume 8636 Folio 765.

1. Enforcement Order Application 1999/24121 is adjourned to a date to be fixed.

2. Permit amendment Request 2000/33540 is adjourned to a date to be fixed.

3. A Statement of Service in relation to Request 2000/33540 is to be filed with the Tribunal within 14 days of the date of this document.

4. Request 2000/33540 is amended in part 6 to include material change of circumstances occurring since the grant of the permit as a ground upon which the request is made.

5. Within two months of the 8 May 2000 the Respondents are to obtain a report from a qualified Civil Engineer in relation to drainage issues relevant to the use and development of the land which report is to be made after consultation with the owners of surrounding land and which report is to deal with the means of drainage, the velocity of stormwater flows, pollutants that may be caught up in stormwater and drainage problems on the land of Mr Check which may be influenced by drainage on or from the subject land and which report is to make any recommendations thought by the engineer to be necessary or desirable. Copies of such report to be filed with the Tribunal and served on the representatives of the other parties who appeared on the 8 May 2000 within the said period of 2 months.

6. Within 14 days after service of such report the Responsible Authority is to prepare a draft form of a suggested condition 9 for the permit sought to be amended and lodge such draft with the Tribunal and serve a copy on each of the other parties who appeared on the 8 May 2000. The Responsible Authority has leave to prepare an accompanying written submission in relation to the proposed condition 9 if thought desirable indicating whether a further hearing is desirable or whether it consents to the case being dealt with pursuant to s 100(2) of the Victorian Civil and Administrative Tribunal Act 1998.

7. Each party other than the Responsible Authority then has a further seven (7) days within which it is to prepare a written submission indicating:-

(a) whether it agrees to the form of the proposed condition;

(b) any comments or alterations it considers necessary;

(c) whether it considers a further hearing is necessary or, alternatively, that it consents to the case being determined without a further hearing pursuant to the said s 100(2).

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Ms Adeline Lane, solicitor of the firm of Maddock Lonie & Chisholm, solicitors, appeared for the Responsible Authority.

Mr John McMullan, solicitor, appeared for the Respondents.

Mr T Weerappah, solicitor of the firm of Williams & Williams Weblaw, appeared for K Dickens and I Check.

Application under s114 of the Planning and Environment Act 1987 (PE Act) for an enforcement order.

Request under s 87 PE Act for amendment of a permit.

The carrying out of works being tree removal, filling of a dam, filling of land and the creation of tracks on the land without a permit required for such works under the continuing use provisions of the Planning Scheme or, alternatively, the carrying out of works contrary to the provisions of Planning Permit 69-325 issued by the Responsible Authority at the direction of the Administrative Appeals Tribunal in its determination of Planning Appeals 1997/14018 and 1997/86823 on the 17 October 1997.

Amendment of the conditions of the said permit 96-325.

Low Density Residential Zone under the Frankston Planning Scheme.

1. The enforcement order application herein arises from allegations by the Responsible Authority that certain works were carried out on the land during the 1980s and early 1990s which required a planning permit pursuant to Clause 15 of the then applicable Cranbourne Planning Scheme where there was no such permit. A new Frankston Planning Scheme made pursuant to the Victorian Planning Provisions of the Planning and Environment Act has recently come into force. However, Clause 15 of the old Planning Scheme related to the continuing use rights in relation to uses that had become prohibited under that old planning scheme. The land is used for a junkyard or motor wrecking yard. It is now conceded on behalf of the Responsible Authority that continuing use rights exist in relation to such use, although at an earlier stage there was some contention about that proposition. That matter originally having been in issue is the reason for some of the directions that were given in relation to this case in earlier directions hearings.

2. Whilst it is now accepted by the Responsible Authority that continuing use rights do exist, such rights were subject to certain provisos set out in Clause 15 of the old Cranbourne Planning Scheme. Such provisos include a requirement that buildings and works are not to be carried out without a permit. It is pursuant to that provision that Permit 96-325 was sought and granted.

3. Enforcement order application 1999/24121 was commenced by the Responsible Authority in relation to alleged contraventions which, as we understand it, are not admitted by the Respondents. Nevertheless we were informed, at the beginning of the hearing on the 8 May 2000, that the parties were in agreement as to the resolution of these proceedings. The essence of this resolution is that the enforcement order application should be struck out or withdrawn and that Permit 96-325 should be amended.

4. Request 2000/33540 seeks the amendments that have been agreed upon between the parties. When we have used the expression "the parties" to date, we have been referring to those who appeared on the 8 May 2000. We have not been including the Minister for Planning.

5. Request 2000/33540 was lodged with the Tribunal on the 3 May 2000. We were advised by Ms Lane that it had been served on the parties, including the Minister for Planning, on or about that day. However, this did not give time for the Tribunal to afford the Minister a reasonable opportunity to be heard at the hearing of the request in accordance with s 90(1)(d) PE Act. For this reason the hearing on the 8 May 2000 was treated as a directions hearing, so far as Request 2000/33540 is concerned.

6. The directions given above are given with the consent of the parties and arise from the discussion, in the course of the hearing on the 5 May 2000, of various aspects of these cases and potential problems in relation thereto. The scheme is that the enforcement order application will, at this stage, be adjourned to a date to be fixed with a view to it being withdrawn or struck out if and when the request proceedings under s 87 are resolved to the satisfaction of the parties.

7. The request proceedings are also to be adjourned to a date to be fixed. One reason for this is to enable proper notice to be given of any hearing to the Minister for Planning. However, it is contemplated that the Minister may not wish to be heard and, like the other parties, may be content for the case to be dealt with hereafter pursuant to s 100(2) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) which enables the Tribunal, where the parties agree, to conduct all or part of a proceeding entirely on the basis of documents and without any physical appearance by the parties or their representatives or witnesses. This procedure offers an obvious saving of expense and trouble where it can be utilised, and this case, where there is agreement amongst the parties, appears as a suitable occasion for its use. It would be helpful if the parties, including the Minister, were to confirm in writing that they consent, pursuant to s 100(2) VCAT Act to this course being adopted.

8. It is appropriate, if such a procedure is to be adopted, for it to be clear to the parties, what the result can be expected to be. In saying this we mean that it should be known, in specific terms, rather than merely generally. This led us to review the proposed amendments to the existing permit. As a matter of fact, the request document set out the suggested form of the full set of conditions, and it is probably clearer and more satisfactory if we set out the full set of the proposed conditions in this document. In doing so we will incorporate several variations to the suggested wording, discussed in the course of the hearing on the 8 May 2000, which we considered to be improvements on the original draft, and which are agreed to by the parties who were represented on that day. However, there is one condition, being condition 9, which is not fully resolved at this stage. We will return to the question of the form of the conditions, and the situation in relation to condition 9, shortly. Before doing so we will refer to another matter that was debated in the course of the hearing on the 8 May 2000.

9. The request document indicates that the ground under s 87(1) being relied upon as the basis for the amendment to the permit being sought is that in s 87(1)(b) namely "any substantial failure to comply with the conditions of the permit". This particular ground is infrequently relied upon, and perhaps seldom successful, particularly where it might be said that a Respondent is effectively benefiting by its own wrong doing by achieving amendments it seeks on the basis of its own failure to comply with conditions. In saying this we are speaking generally, and not necessarily in reference to the circumstances of this case. Normally an enforcement order or a prosecution would be seen as the suitable steps to be taken in the event of failure to comply with permit conditions. Section 87(1)(b) nevertheless exists in the legislation, and is probably intended for use in circumstances where it is sought to cancel the permit on the basis that the use is untenable. Permission to use land for a particular purpose is frequently given subject to conditions in the expectation that such conditions will be observed or enforced. Substantial failure to comply with conditions might give rise to a situation where such an expectation can be demonstrated to be unjustified. If permission was only given in the first place on the basis of such an expectation, that can be seen as affording a logical and sensible basis for cancellation.

10. The justification for amendments to conditions on the basis of substantial failure to comply with such conditions is less clear. We are not finding here that such amendments could never be justified, although we feel a certain unease about reliance on that ground in the circumstances of this case. This caused a consideration of whether another ground under s 87(1) is open.

11. Ms Lane, on behalf of the Responsible Authority, had put forward substantial failure to comply with conditions as the ground the Responsible Authority had sought to rely upon, but she also referred to an indication from Mr McMullan suggesting that material change in circumstances since the grant of the permit should be the appropriate ground. That ground appears in s 87(1)(d).

12. The Tribunal, to have jurisdiction under s 87, must arrive at a situation where it considers that one or more of the possible grounds under s 87(1) has been established. There has been a significant, and we think material change in circumstances since the grant of the permit. This change is the coming into force of the present Frankston Planning Scheme. The Zone provisions in relation to this land are different under the present planning scheme, as compared with the Cranbourne Planning Scheme that previously applied. The current use was a prohibited use under the Cranbourne Scheme, but it has become a use in Section 2 of the table of uses in relation to the relevant zone, that is to say, it has become a use that is not prohibited, but rather one for which a permit can be granted. This, in our opinion, does change relevant circumstances of considerations in relation to the proposed amendment. The Respondents are no longer necessarily obliged to rely on continuing use rights and therefore they are no longer necessarily obliged to satisfy the provisos in relation to the continuation of such use rights. The alternative now open to the Respondents would be to apply for a permit to use this land for their desired purpose and to obtain permission, presumably at the same time, for the buildings and works sought to enable the use to proceed. These Zone provisions in relation to the Low Density Zone are to be found in Clause 32.03-4 of the current planning scheme.

13. The existence of this alternative, in our opinion, does cast a somewhat different complexion on the question of whether the use and proposed developments should be allowed, whether pursuant to continuing use rights in the current permit on the one hand or pursuant to a potential new permit containing use and development permissions on the other. This is, perhaps, particularly so in circumstances where the Responsible Authority has indicated its support, and, indeed, where relevant potential objectors take a similar position. If the current request was being considered under the requirement of permission for works pursuant to continuing use provisions, consideration might need to be given as to whether the same should be granted having regard to the degree to which the continuation of such rights is a concession on limited terms. The Tribunal and its predecessors have frequently, notwithstanding the fact that continuing use rights are indeed rights intended to allow a continuation of use, considered whether permission should be refused on the basis that its grant would extend, intensify and/or entrench a prohibited use that might otherwise eventually cease allowing the use of the land to subsequently be in accordance with the provisions of the planning scheme. If such considerations are taken into account in relation to the grant of a permit pursuant to a provision similar to the original Clause 15 of the Cranbourne Planning Scheme, then so would they be relevant to the consideration of the merits of an amendment to such a permit.

14. It is for these reasons that we consider that the coming into operation of the new Planning Scheme does change the complexion of the question of the merits of the permit and any suggested amendment to the conditions of the permit. We think that it does amount to a material change in circumstances since the grant of the permit. It is material, both in the sense of being relevant and of sufficient significance to warrant attention. The parties agreed with this proposition when it was discussed in the course of the hearing on the 8 May 2000.

15. We therefore consider it expedient to amend the Request under s 87 to include the ground under s 87(1)(d). It is, we think, convenient and appropriate that this ground should be open as we may well come to the conclusion that we are satisfied in relation to it whilst continuing to entertain some doubts, or at least uneasiness, in relation to the ground under s 87(1)(b).

16. Mr Weerappah was reluctant that we should rely on the ground under s 87(1)(d), or, at any rate, that we should rely on it to the exclusion of the ground in s 87(1)(b). He claimed that if the parties came before us admitting the facts necessary to establish a ground under s 87(1)(b), then we are obliged to accept that the ground is established and further obliged to rely upon it. He went so far as to suggest that to do otherwise would be improper and unreasonable.

17. We are not able to agree with him as to these propositions. The fact that the parties admit facts sufficient to establish the ground might well be a basis for us to be satisfied as to that ground being established, but it does not necessarily follow that we are obliged to be so satisfied. What s 87(1) requires is that the Tribunal considers one or other of the specified grounds to be established, and that conclusion cannot be compelled on the Tribunal by admission if the Tribunal does not in fact consider the ground to be established.

18. Furthermore, the ground under s 87(1)(b) requires the Tribunal to consider that there has been a "substantial" failure to comply with conditions. It is for the Tribunal to decide what it considers to be substantial in the circumstances of a particular case.

19. In any event the Tribunal is not compelled to come to a conclusion on a point that is not essential to its determination of the case. In fact it is quite common for Courts and Tribunals to leave aside determining a question that, for one reason or another, is not or has ceased to be essential. In terms of the present case, we might well come to the view that we are satisfied as to the ground in s 87(1)(d) and therefore find that it is unnecessary for us to decide, one way or another, as to whether we are also satisfied as to s 87(1)(b). We need only be satisfied as to one ground under s 87. If we are satisfied as to (d), then that is enough. If satisfied as to that, then we are not compelled to determine the question as to whether s 87(1)(b) is also satisfied. It would certainly not be improper or unreasonable for us to leave it on one side, undetermined, on the basis that it is unnecessary for us to come to a determination upon it.

20. We return now to the question of proposed condition 9. That condition purports to require the provision of a report within two months of a qualified engineer in relation to drainage on the land dealing with means of drainage, velocity of stormwater flows, pollutants that may be caught up with stormwater and drainage problems arising from the subject land but affecting the land owned by Mr Check. The condition contemplates that the engineer would consult with the owners of surrounding land and that the report must be to the satisfaction of the Responsible Authority. It then goes onto provide that within six months of finalisation of the report to the satisfaction of the Responsible Authority the recommendations of the report are to be carried out to the satisfaction of the Responsible Authority.

21. We note the frequent use of the phrase "to the satisfaction of the Responsible Authority" in the proposed wording of this condition and we are conscious of s 62(2)(a) PE Act which gives statutory authorisation to a condition that specified things be done to the satisfaction of the Responsible Authority or certain other authorities (which do not include an unspecified but qualified engineer). Conditions requiring things to be done to the satisfaction of the Responsible Authority have been inserted in planning permits over a long period. We believe that condition 62(2)(a) and its predecessors were inserted into the Act to make such conditions valid because of doubts that might otherwise arise as to the validity of such conditions inasmuch as they might be said to amount to an illicit delegation of the power to grant permits and impose conditions thereon.

22. The presently proposed condition 9 appears as an illicit delegation to the qualified engineer as to what the condition is to actually require. There can obviously be an argument as to whether this potential problem as to the validity of the condition is adequately overcome by the use of the expression "to the satisfaction of the Responsible Authority". We think this question is less clear than the normal conditions where that expression is used, and that the condition is either invalid or that it stretches the use of the expression, authorised by s 62(2)(a), to the extreme limits of its feasibility.

23. In any event, it is undesirable that a permit should be indefinite in its terms or that it should contain an apparent illegal delegation. It is far preferable that a condition should express, within its own terms, what is required to comply with the permit and its conditions. It is undesirable that it should be necessary to refer to some other document to determine whether a condition has been complied with, particularly some extraneous and informal document.

24. Although this is generally undesirable, it is sometimes necessary or convenient. For example, it is common that a condition will require reference to endorsed plans. However, in these circumstances, the endorsed plans become part of the permit.

25. Although it is sometimes necessary or desirable to direct attention to some extraneous document, it is bad practice where that is not necessary.

26. All things considered it is appropriate and desirable, whether it is strictly necessary or not, that the anticipated recommendations of the engineer should be ascertained in advance and, if appropriate, imposed directly as permit conditions.

27. In the circumstances of this case there is a necessary delay in any event, having regard to the need to comply with s 90(1)(d) PE Act in relation to the participation of the Minister. We therefore concluded that it was preferable that the report of the engineer should be obtained before any amendment to the permit is finalised so that the report could be made available to the other parties with a view to drafting a condition 9 that simply imposes the necessary requirements directly a redrafted condition.

28. We anticipate that if an agreed form of condition 9 can be arrived at we can then impose it, if we approve of it ourselves, along with the other proposed conditions which we will set out hereunder. If the parties are unable to agree as to a form for condition 9, their alternative views can be set out in written submissions and we can either adopt that which we consider appropriate, or, if it is thought necessary or desirable to in fact have a further hearing, then that can still be done.

29. The revised and proposed conditions 1 to 8 and 10 are as follows:-

Buildings and works in accordance with the endorsed plans.

1. Before the development starts, a plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plan must be in accordance with the plan prepared by Peter Herbert and Associates (Vic) Pty Ltd reference 3350 D1 (version 4). When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:

(b) Landscaping details including a minimum three (3) metre landscape buffer around the side and rear boundaries of the site, a landscape buffer around the crusher area and a landscape buffer separating the car sales area (located at the Warrandyte Road frontage of the land between the two existing dwellings) from the lanes of stacked cars further to the east. Additional landscaping details to be shown must include existing vegetation to be retained and the type and location of proposed vegetation. The type of proposed vegetation should be shown in a planting schedule. The species selected for planting should be fast growing, indigenous to the area and of a variety of growth habits to screen the use from adjoining properties, (note: a full screen is intended be achieved within 5 years of the date of this permit).

(e) Delineation of the two titles that comprise "the site".

(f) A detailed outfall drainage plan identifying existing overland flow paths and proposed drainage works prepared by a suitable consultant to the satisfaction of the Responsible Authority.

(g) A notation stating that native vegetation on site must not be removed without the written consent of the Responsible Authority.

(h) Details of all perimeter fencing, including fencing around the crusher area.

(i) The area where the crusher is to be located and where vehicles are to be crushed to be denoted as "the crusher area".

2. All buildings and works shown on the endorsed plans must be completed within six (6) months of the date of this permit.

3. Existing external lighting on Warrandyte Road must be buffered to prevent direct light into adjacent residential areas.

4.(a) The areas set aside for parked customer and staff vehicles and access lanes shown on the endorsed plans must be:

(i) Constructed to the satisfaction of the Responsible Authority.

(ii) Properly formed to such levels that they can be used in accordance with the plans.

(iii) Surfaced with crushed rock or gravel and treated to prevent loss of amenity to the neighbourhood by the emission of dust and the discharge of drainage.

(iv) Drained and maintained to the satisfaction of the Responsible Authority.

(b) Parking areas and access lanes must be kept available for these purposes at all times.

5.(a) Landscaping works as shown on the endorsed plans must be completed within six (6) months from the date of this permit to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

(b) The areas set aside for landscaping must not be used for any other purpose.

6. The side and rear boundaries of the land must be fenced in accordance with the endorsed plans and such fencing must be maintained to the satisfaction of the Responsible Authority.

7. Cars are to be stacked no higher than three (3) metres in all areas except the crusher area where cars may be stacked no higher than three and a half (3.5) metres.

8. Wrecked cars are only to be stored in the designated areas identified on the endorsed plans and the access aisles between these storage areas must be maintained to the satisfaction of the Responsible Authority.

10. The crushing of vehicles must only take place in the "crusher area" location which is shown on the endorsed plan."

30. The Responsible Authority also indicated an intention and wish to include on the permit document notes in the following form:-

1. No additional buildings or works shall be undertaken on the site without the prior written consent of the Responsible Authority.

2. Any request for time extension or variation/ amendment of this Permit or any condition shall be lodged with an administration fee of not less than $50.00 per request.

31. These notes are not really part of the conditions. We would regard the first as acceptable. The request to include the second was withdrawn when we indicated that we were dissatisfied with it and that it appeared to be intended to impose a requirement for the payment of a fee which payment is not authorised by statute and which appears to be beyond the power.

32. Mr Weerappah suggested that time limits should be imposed and it was agreed that two months from the 8 May 2000 should be the time in relation to the provision of the engineer's report. That does not prevent it being circulated at an earlier stage if it becomes available.

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Civil and Administrative Tribunal Act 1998

Frankston CC v Kaybea Pty Ltd & Anor [2000] VCAT 1149

At a glance

Court

Decision date

Before

Source

Judgment (82 paragraphs)

Frankston CC v Kaybea Pty Ltd & Anor [2000] VCAT 1149 (31 May 2000)

Parties

Legislation Cited (1)