Garnaut v Yarra CC [2010] VCAT 1089

Garnaut v Yarra CC [2010] VCAT 1089 - VCAT 2010 case summary — Zoe

[17]

The current application is to amend the permit to in effect delete conditions 1 (b) and 1(c). The justification for amending the permit as requested has not changed since the original Tribunal decision, i.e. the proposal is unique because both dwellings will be in the same ownership, and the development will be used in an integrated manner with both dwellings occupied by family and friends. On this basis, it was submitted that concerns about internal amenity are not applicable and the screening and fencing are not necessary. The applicants have however indicated a preparedness to enter into an agreement made under section 173 of the Planning and Environment Act 1987. A draft agreement was tabled and during the course of the hearing, a number of variations to the content of the agreement were discussed. In general terms however it was proposed that the fence and screen required by the conditions not be provided unless the land was sold, subdivided or rented to a party not being an immediate family member.
The applicant also submitted that compliance with the conditions is not necessary to achieve the relevant objectives of Clause 55 of the planning scheme.
With respect to the submission that the conditions are not required to meet the objectives of Clause and were based on an erroneous application of relevant clauses of Clause 55, I note that to a large extent Clause 55 is a performance based provision. Discretion is available to the decision maker in determining whether a proposal meets all the objectives of the Clause. A judgement needs to be exercised and the judgements made will vary from case to case depending on the circumstances of each case. Differences of opinion will inevitably arise, not only between applicants and objectors, but also between professionals involved in the design of residential developments including planners, designers and council officers. In the Victorian planning system the resolution of disputes arising from these differences of opinion rests with the Tribunal.
With respect to the discretion available to me in this matter, I agree with Mr Stokans that because this application has been brought under section 87A of the Planning and Environment Act 1987 it is not a repeat appeal and the Tribunal's long standing and consistently applied tests with respect to repeat appeals are not applicable[2]. Mr Stokans referred me to a decision of Deputy President Dwyer[3] in which the tests to be applied in section 87A applications were considered. In that decision Deputy President Dwyer said:

[19]

I reiterate that this is not a repeat appeal. However there are elements of the rationale underlying the Tribunal's approach to repeat appeals which remain relevant to the consideration of applications under section 87A of the Planning and Environment Act 1987. As the Tribunal stated in the Amoco decision, public policy seeks to ensure that there is an end to litigation. If Applicants were repeatedly coming before the Tribunal, perhaps seeking to exhaust the patience of the Tribunal or even in an attempt to pick and choose a suitable division of the Tribunal to hear the appeal, it would be to the detriment of the appeal system. Repeated appeals impose unnecessary costs on respondent parties.
In the context of this case, while I am not bound by the previous decision, it is appropriate that I exercise caution when determining whether different findings on the need for the conditions are warranted. This is especially the case in circumstances where the Tribunal made specific findings about matters where a judgement did need to be exercised as to whether an objective of Clause 55 was met or not. It would be detrimental to the appeal system if repeated applications were made to amend permits on the basis that applicants did not agree with the judgement arrived at by the Tribunal in the original decision.
I record my finding that the decision of the Tribunal in the original decision was not based on an erroneous application of Clause 55 as alleged by the applicant and I have not been presented with any submissions or evidence which would persuade me that I ought to arrive at different conclusions to that reached by the previous Tribunal on the merits of the necessity for the conditions.
I now turn to a consideration of the use of a section 173 agreement as a mechanism by which to avoid the need to comply with the permit conditions. As I have indicated above a number of permutations of the proposed agreement were discussed at the hearing but in the final analysis, the basis of the agreement was that because of the personal circumstances of the current land owners, compliance with the conditions was not necessary.
I am not persuaded that the approach urged on me by the applicant is appropriate in this case. There are two reasons for this. Firstly the personal circumstances of a land owner or permit applicant are rarely relevant in determining whether a planning permit should be issued, or under what conditions it should be issued. Planning permits are concerned with authorising or controlling the use and development of land. Consequently planning permits run with the land and therefore land can be used and developed in accordance with a planning permit irrespective of the identity or circumstances of the land owner or occupier. I do not think it is desirable that these principles are departed from unless exceptional circumstances warrant such a departure.
The very rare circumstances where permits are issued with conditions restricting the identity of the owner or occupier of the land, are typically justified on the basis that the permit is only being granted because of the special characteristics, qualifications or abilities of the person which are considered to be necessary to avoid or suppress external amenity problems which any other person would not be able to achieve[4]. I do not consider the circumstances applying in this case fall into the category of exceptional circumstances which would warrant the imposition of a condition based on the personal circumstances of the current land owner.
The second reason I have not been persuaded that the permit ought to be amended through the use of a section 173 agreement is that I have reservations about the enforceability of a condition or agreement based on the dwellings not being rented to a party other than an immediate family member. I agree with Ms Wilson's submission that the reliance on a section 173 agreement in this case replaces the certainty associated with the existing permit conditions related to the development of the land, with a level of uncertainty around who the occupants of the dwellings actually are. I do not think it is appropriate that the Council, which will be obliged to enforce the permit conditions including the agreement, should have to concern itself with establishing the identity of the occupants of these dwellings in order to satisfy itself that permit conditions are being complied with.

At a glance

Court

Decision date

Before

Source

Judgment (25 paragraphs)

Garnaut v Yarra CC [2010] VCAT 1089 (29 June 2010)

Garnaut v Yarra CC [2010] VCAT 1089 (29 June 2010)

Parties

Legislation Cited (1)