Glen Eira City Council v Gory [2001] VSC 306

2. This is an appeal on a question of law under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 against a decision of the Victorian Civil and Administrative Tribunal (`the Tribunal'), constituted by Mr Quirk, Member, on 20 February 2001 in its Planning List. Leave to appeal was granted by this Court on 25 May 2001.

5. On 4 May 2001 the respondent lodged with the appellant ("the Council") as responsible authority an application for a permit to construct an additional unit within an existing block of three units on land at 19 Norwood Road, North Caulfield ("the subject land"). The application was advertised in accordance with section 52 of the Planning and Environment Act 1987 ("the Act") by a notice on site and by mail to adjoining owners and occupiers, and no objections were received. On or about 1 September 2000 the Council issued a Notice of Refusal to grant the permit. The respondent applied to the Tribunal for review of that decision, and the Tribunal set aside the decision of the Council and directed that a permit be granted.

8. In the course of its reasons for decision ("the reasons") the Tribunal said:

5. The land is zoned Residential 1. . . . Construction of two or more dwellings on a site is subject to clause 34.01-4 of the scheme requiring a planning permit. The Good Design Guide is to be used in the consideration of an application for medium density housing. The relevant State and Local Planning Policy Frameworks apply to this application.

6. The City of Glen Eira has a particular policy in relation to incremental change and this area is one of those specified as an incremental change area. A number of tribunals including this one have commented on this incremental change policy in recent times and those comments have generally been negative ones. However, the City of Glen Eira keeps rolling the same policy out at any application for review of residential development. It insists that incremental change does not only mean an increase but a decrease in the number of dwellings per site for locations where higher densities already exist. Incremental change does not mean no change. Medium density housing is not encouraged on this site because it is not in one of its preferred strategic locations. Some objectives and strategies of the policies that are relevant are:

* ensuring that new developments retain/provide valued vegetation and street trees;

* ensuring that new developments have regard to existing site conditions and provide site responsive designs.

7. Mr Stevenson argued in support of the responsible authority's incremental change policy. The present density is 1:212 sq. metres, already higher than the Good Design Guide parameter of 1:250 sq. metres. The responsible authority maintains that the density will be higher again with an additional unit at 1:159 sq. metres. It is not only contrary to the benchmark density of the Guide but also in variance with the incremental change policy contained in clause 21.04-1 of the scheme.

8. Mr Verhoeven submitted a contrary view. His opinion coincides with mine and that is the density is meaningless in this situation. Further, this also applies to neighbourhood character. There will be no change to the façade of the building from a streetscape perspective. The new development is to be contained within an already existing building footprint. Provided there are no overshadowing or overlooking aspects then it is clear that there will be no detrimental effect whatsoever on neighbouring properties. Of course this is also clear from the fact that there were no objections to the proposal.

9. I totally reject the incremental change area policy as applicable to this application. I refer to my decision . . . in Anderson v Glen Eira City Council application for review No 1999/096993 where I commented:

In the context of this policy one wonders what incremental growth is. The Oxford Dictionary defines incremental as `where something variable increases by a small amount'. This I believe could only be considered to be normal growth. The [Municipal Strategic Statement] also indicates that incremental does not mean no change I agree with this. The problem here is that the responsible authority seems to consider it does mean no change. That is the perception I have gained from a number of recent submissions made to me. Incremental means normal. Normal growth should include some medium density housing and one would hardly consider the occasional house behind an existing house or a dual occupancy to meet the true meaning of multi unit development, which is why they were separately defined as `Dual Occupancy'.

10. This is a highly sought after area and very well situated in relation to urban infrastructure. It lies in the transitional area between an inner and middle ring suburbs. The area certainly has not reached a level of saturation.

11. We are all experiencing difficulty in the interpretations of strategies and policies that have been adopted by responsible authorities and approved by the Ministry, media and new VPP schemes. Although it is not the Tribunal's role to review policies as clearly another body does this it does seem that many policies have been written in isolation, although there may have been a supposed public process. It is my opinion that many people did not have a proper understanding of the policies and what they would mean once they were contained in planning schemes. Some of these policies could be said to be reactionary and have similar objectives to the council codes of the 1970s and 1980s, that is attempting to generally not allow but stifle multi dwelling developments across municipalities.

12. The metropolitan area continues to grow expansively. There is continual demand for more housing as household sizes decrease. Middle and inner ring suburbs are highly sought after by retirees, two income families and professionals because of their proximity to major business, cultural and entertainment facilities. This is clearly indicated in the market place. It seems the market place, which is a reflection of peoples desires and preferences, is something that has not been given due consideration by planning authorities when developing these policies.

13. I believe it is because of these factors that the Glen Eira Incremental Change Area Policy is clearly a negative one and contrary to the State Planning Policies of urban consolidation and medium density housing. It is my opinion that the City of Glen Eira should take steps to review this policy in consultation with major stake holders that should include development and real estate industry representatives.

14. In my opinion there should be no impediments to the conversion of this building as proposed provided that the parking and streetscape issues can be resolved. . . .

26. The first submission of Mr Wren, for the Council, was that the Tribunal had failed to consider the Council's incremental change policy. He referred to Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40; (1986) 162 CLR 24 where Mason J said at 39:

The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s. 5(2)(b) of the [Administrative Decisions (Judicial Review) Act 1977] which, in this regard, is substantially declaratory of the common law.

30. There is also a specific statutory requirement which is relevant. Section 84B(1) of the Act provides that in determining an application for review under the Act the Tribunal must take into account inter alia any relevant planning scheme. The relevant planning scheme affecting the subject land is the Glen Eira Planning Scheme ("the planning scheme"). The subject land is in a Residential 1 Zone under the planning scheme, and clause 32.01-2 of the planning scheme requires that before deciding on an application [scilicet for a permit to use land] in that zone:

. . . in addition to the decision guidelines in clause 65, the responsible authority must consider:

* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* The Victorian Code for Residential Development - Subdivision and Single Dwellings, April 1992.

Clause 65 repeats the first of those requirements and adds a number of other matters which the responsible authority must similarly "consider, as appropriate", including the purpose of the zone. Two of the three purposes of the Residential 1 Zone, set out in clause 32.01, are:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

39. Thus the Tribunal, being required to take the planning scheme into account, is required by the planning scheme to consider these matters, "as appropriate".

42. It is unfortunate that at first reading it appears that the Tribunal has not attempted to describe or define what it identifies as the Council's `incremental change policy'. It is not apparent to a reader who has not read the planning scheme that paragraph 6 of the reasons, from the words `It insists . . . ` onwards, consists of extracts from clauses 21.04-1 and 21.05-2 of the planning scheme.

45. Clauses 21.04-1 and 21.05-2 appear in the planning scheme in the Municipal Strategic Statement (`MSS') which forms part of the Local Planning Policy Framework, and which is specifically referred to in the provisions set out in paragraph 5 above. Sections 6(1)(aa) and 7(3)(a) of the Act provide for the inclusion of an MSS as part of the local provisions of a planning scheme, and section 12A sets out the requirements for the MSS, which is to be prepared, in effect, by the council of the municipality to which the planning scheme applies.

48. Clause 21.04-1 is headed `Housing Diversity and Density' and extends over three pages, being followed by clause 21.04-2, dealing with objectives, strategies and implementation. It follows an extensive consideration of the municipal district of Glen Eira, under the headings `Municipal Profile', `Key Influences' and `Vision - Strategic Framework', which also forms part of the MSS. The following extract from the submission to the Tribunal of Mr Stevenson, for the Council, (with emphasis omitted) may serve to define the incremental change policy as a component of the MSS:

Broadly speaking the MSS seeks to channel medium density housing into appropriate preferred locations and temper the rate of change in other locations. Residential areas outside of the preferred strategic locations should remain largely unchanged, however, with regard to medium density housing some incremental change will be catered for provided it is consistent with surrounding use, character and scale. This general principle is encompassed in Clause 21.04-1 (under the heading `Incremental Change Areas') and states the following . . . ;

Whilst higher densities of development will be encouraged in preferred strategic locations, elsewhere Council will seek to maintain the scale, character and amenity of residential areas. With regard to medium density housing, some incremental change will be catered for provided it is consistent with surrounding use, character and scale.

Incremental change could vary from location to location within the municipality. It could mean for example, a dual occupancy on a conventional sized site in a location predominantly characterised by detached housing. It could also mean several dwellings on a site where the site is significantly larger than conventional sized sites in a given location. The level of development would be limited to the extent that change could be said to be incremental. Conversely incremental change could mean no increase or in fact a decrease in the number of dwellings per site for locations in which higher densities of development are not encouraged but already exist.

Incremental change does not mean no change. However the extent of change should be tempered as significant areas of the municipality have also been earmarked for higher densities of development . . .

55. Mr Wren submitted that by totally rejecting the incremental change policy the Tribunal had failed to take it into account; and that that construction was supported by the Tribunal's criticism of incremental change policy and its expression of the opinion that the policy should be reviewed. However, while the Tribunal may have expressed its views of the incremental change policy and ancillary matters in stronger terms than absolutely necessary for the determination of the issue before it, it cannot be said to have failed, in the passages set out above from the reasons, to comply with the very flexible requirement to "consider, as appropriate" that policy. To consider is not necessarily to adopt or to follow. The Tribunal considered and rejected the incremental change policy as applicable to the matter before it.

58. Mr Wren submitted further that the Tribunal should have assessed the application against the objectives of the incremental change policy. That is not a requirement of the Act or of the planning scheme, and is not necessarily called for by the expression in the planning scheme "consider, as appropriate". That expression leaves a wide discretion with the responsible authority or the Tribunal as to the manner and extent of consideration to be given to the matter in question. The width of that discretion is understandable in view of the very many matters which sections 60 and 84B of the Act, directly or indirectly, require the responsible authority and the Tribunal respectively to consider, take into account, have regard to or take account of.

61. The second submission of Mr Wren related to the State Planning Policies of urban consolidation and medium density housing. He referred specifically, as encapsulating those policies, to the passages set out in the following paragraph from clauses 14 and 16 of the planning scheme which form part of the State Planning Policy Framework.

64. Clause 14.01-2, under the heading `Settlement' and sub-heading `Planning for Urban Settlement' includes a requirement that:

In planning for urban growth, planning authorities should encourage consolidation of existing urban areas and especially higher density and mixed use development near public transport routes.

Clause 16.01-1 under the heading `Housing' and sub-heading `Residential Development for Single Dwellings' includes as an Objective:

Opportunities for increased residential densities to help consolidate urban areas.

72. Mr Wren submitted that in finding that the incremental change area policy was contrary to the State Planning Provisions, the Tribunal took into account an irrelevant consideration. The question of whether the incremental change policy of the Council was contrary to provisions of the State Planning Policy Framework was a question of law, because it involved a consideration of the correct construction of the provisions of the planning scheme.

75. In view of the conclusion I have reached, it is not necessary for me to determine whether or not that question is a question of law. Mr Pitt, for the respondent, submitted that the Tribunal's expression of its belief that the incremental change area policy was inconsistent with those provisions did not form part of the process by which it found the policy to be inapplicable to the application before it. It rather formed part of its consideration of a matter which was not before it, that is, whether the policy as a whole should be reviewed, a matter which it dealt with after reaching its finding that the policy was not applicable. Having considered the matter, I accept that submission.

78. Accordingly, for the reasons set out, I find no error of law in the decision of the Tribunal. Counsel may wish to make submissions as to the orders to be made as a result of this finding.