Victorian Civil and Administrative Tribunal|2010-07-28

The applicant accepts that notice should be given to adjoining owners and occupiers but says that it is unnecessary to give notice to owners and occupiers of non adjoining properties on the opposite sides of Toorak Road and Fulham Avenue. He says that there is no likelihood that the grant of an amendment of the permits would cause material detriment to them and therefore such notice is unnecessary.
An application for a declaration has been made under section 149B because the right of review provided by section 78(a)[2] of the Act only applies to a requirement to give notice under section 52(1)(d), not section 52(1)(a).
In SunnyCove Management Limited v Stonnington CC[3] the Tribunal identified that different tests apply to decisions about notice under section 52(1)(a) and (d) and there is no right of review provided in respect of a requirement to give notice under section 52(1)(a). Section 78(a) only provides an opportunity for a permit applicant to apply to the Tribunal for a review of a requirement by the responsible authority to give notice under section 52(1)(d). The only way in which a permit applicant can challenge a decision by a responsible authority to require notice under is to seek a declaration under section 149B.

...If we think any form of notice is required, we must notify all adjoining lots. Adjoining includes anything directly aligned across a road.

From a pure merits perspective, I don't disagree with you that people on the south side of Toorak Road have no interest or potential for detriment in these application. However, to hand pick who we serve notice on would be contray to what Section 52 of the Act requires. If you can convince the VCAT Member to step outside the realm of the Act, good luck.

You are welcome to retain this email as evidence to table to VCAT on this matter if you like.

The council says that in relying upon section 52(1)(a) of the Act it has interpreted the requirement to give notice to "adjoining" owners and occupiers as including owners and occupiers of opposite properties, i.e. any land directly aligned across a road. This proposition is not correct and is not the interpretation previously adopted by other divisions of the Tribunal.
The Macquarie Dictionary definition of "adjoin" is "to be in connection or contact with; abut on; ... to lie or be next, or in contact." The definition in the Shorter Oxford Dictionary also includes "to be contiguous to or in contact with."
In Block v Indigo SC[4], Deputy President Bruce held that "adjoining" means "contiguous". She said:

[47] ...In my view, the plain meaning of "adjoining" in the context of Section 52(1)(a) does not extend to a parcel of land situated across Factory Lane from the subject land.

[48] I am supported in this view by what I understand to be the purpose of the provision. Section 52(1) makes a distinction between "adjoining owners and occupiers" who are to be notified of a permit application unless the Council forms a certain opinion, and other people to whom "the grant of a permit may cause material detriment". The immediacy of any off-site impact of a proposal for use or development of adjoining land can be expected to be greater than in the case of land that does not adjoin, even if the separation is quite a narrow road.

[49] The Administrative Appeals Tribunal has also adopted the meaning of "contiguous" for "adjoining" in the context of provisions of a Planning Scheme (rather than the Act) in Steve's Auto Accessories Pty Ltd v Whitehorse City Council and Woodfull & Ors v Monash City Council, both noted at 19 AATR 5. These cases both adopted the approach of the Privy Council in New Plymouth v Taranaki Electric Power Board [(1993) AC 680] in which it was considered that "contiguous" is the primary and exact meaning of "adjoining", and "near" or "neighbouring" were looser meanings. Their Lordships held that words are used in an Act of Parliament correctly and exactly, and not loosely and inexactly; and that the person who asserts that this rule has been broken has a heavy burden which can be discharged only by pointing to something in the context that shows that the loose and inexact meaning must be preferred.

The same view was expressed by the Tribunal in Prizac Investments Pty Ltd v Maribyrnong CC[5].
I agree with the interpretation of the meaning of the word "adjoining" adopted in Block and Prizac for the reasons given in those cases and the cases they cite. I find that the meaning of "adjoining" in the context of section 52(1)(a) means that the land must be contiguous with and directly abut the land to which the application applies. It does not include land that is separated from the subject land by a road, laneway or other land. In circumstances where land does not adjoin the subject land, in terms of physically abutting it or being contiguous with it, a responsible authority should exercise its discretion under section 52(1)(d) in deciding whether notice should be given to the owners or occupiers of such other land.
It therefore follows that under section 52(1)(a) the only properties that need to be given notice in the present case are those directly abutting the subject land, namely 399 Toorak Road and 2 Fulham Avenue.
I do not consider that any further notice is required under section 52(1)(d). The council has already said that people on the south side of Toorak Road have no interest or potential for detriment in the application. They would therefore not fall within the ambit of section 52(1)(d). In terms of people on the opposite side of Fulham Avenue, the council was unable to identify what material detriment they were likely to suffer if the application to amend the permits was granted. At the hearing, Mr Parkinson suggested that there might be a detriment in the form of concerns about traffic and parking in respect of the properties on the opposite side of Fulham Avenue but did not say how this might arise.
In SunnyCove Management Limited v Stonnington CC, I said with respect to the test in section 51(1)(d):

[18] ... In this context I consider that the Council must establish how the grant of the permit may cause material detriment to other persons. It is not enough for the responsible authority to speculate that there might be some potential for unspecified material detriment. The Council must be able to identify what material detriment may be caused to other people.

The nature of the amendment applied for is to use the land for cat boarding and to modify conditions in the permit relating to this.
A drive-through driveway with four onsite car parking spaces already exists The land is already used for cat boarding, which the applicant says is ancillary to use of the land as a veterinary clinic. The amendments to the permit are to regularise the existing use and put it beyond doubt, and to change the existing layout. Given the nature of the changes to the permits and the existing layout and use of the site, I am not persuaded that the council's vague reference to concerns about traffic and parking establish that the amendment of the permit may cause material detriment to persons on the opposite side of Fulham Avenue. I am therefore not satisfied that any further notice needs to be given to these people under section 52(1)(d).
For all these reasons, I am prepared to make the declaration that the applicant seeks.

[1] The two permits proposed to be amended are Permit S187/97 issued on 25/8/1997 and Permit 0426/00 issued on 8/2/2001. Permit S187/97 allows:

Use of the existing building for the purposes of a Veterinary Clinic and Caretaker's House and to carry out buildings and works at the front of the site for the purposes of carparking and associated signage and to reduce the carparking.

Use of existing garage for dog grooming and washing associated with the existing vet use and 2 extra car spaces along the existing driveway in accordance with the endorsed plans and subject to the following conditions.

Although not specifically proposed, in my view it would be more efficient and less confusing if this opportunity was taken to amalgamate and rationalise the two permits and their conditions, as well as make the changes proposed.

[2] Section 78 of the Planning and Environment Act 1987 provides as follows:

_An applicant for a permit may apply to the Tribunal for review of - _

(a) a requirement by the responsible authority to give notice under section 52(1)(d) or 57B; or

(b) a requirement by the responsible authority for more information under section 54.

[5] [2009] VCAT 2616 at [29] - [30]. See also Cooper v Surf Coast SC [2000] VCAT 2180 at [30]

Graham v Stonnington CC (includes Summary) (Red Dot) [2010] VCAT 1224 (28 July 2010)

Graham v Stonnington CC

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Graham v Stonnington CC (includes Summary) (Red Dot) [2010] VCAT 1224 (28 July 2010)