Statutory Provisions: s 62(3), 72, 73, 149 Planning and Environment Act 1987.

APPLICANTS FOR REVIEW : Dimitrios Grosios and Sophia Grosios

Medium Neutral Citation [2003] VCAT 626

The plans dated October 2002 of A. & S. Valente & Associates Pty Ltd and marked Drawing No. TP1 of 1 in relation to Project 724 are approved as an amendment to the plan of Tasos Sotiriadis, architect originally endorsed on the 11 June 2002 in relation to Planning Permit 27234.

Ms Mariela Melo of the City of Monash, appeared for the Responsible Authority.

Silvana Valente and Angelo Valente of A. & S. Valente & Associates Pty Ltd, appeared for the Applicants.

Application under s.149 of the Planning and Environment Act 1987 (PE Act) for review of a decision of the Responsible Authority to refuse to approve amended plans.

Approval of new plans in relation to the construction of three dwellings.

1. This case arises in relation to Planning Permit TPA/27234 issued by the Responsible Authority on the 7 February 2002 at the direction of this Tribunal in its determination of Application for Review 2001/4513. That case was a review by permit applicants of a refusal by the Responsible Authority to grant a permit. The Tribunal directed the grant of a permit subject to eight conditions. The first of these conditions required the submission and approval of amended plans which were different from the application plans in accordance with four specifications identified (a) to (d) in the terms of the first condition.

2. After the issue of the permit plans were tendered for approval and subsequently endorsed as the approved plans in relation to the permit. Those plans, like the original application plans were prepared by Tasos Sotiriadis, architect.

3. The applicants subsequently thought that these endorsed plans could be improved upon. They had A & S Valente & Associates Pty Ltd of Mt Waverley prepare a revised version of the endorsed plans. The resulting plan of A & S Valente & Associates Pty Ltd is dated October 2002 and marked as Drawing No. TP1 of 1 in relation to Project 742.

4. This plan was submitted to the Responsible Authority with a request that it should be approved as an amending plan and endorsed accordingly as the endorsed plans in relation to the permit.

5. Faced with such a request, I would have expected the Responsible Authority to consider it under s 63(3) PE Act. That sub-section provides that the Responsible Authority may approve an amendment to any plans approved under a permit if the amendment is consistent with the planning scheme currently applying to the land and is also consistent with the permit provided that the amendment will not authorise anything that would result in a breach of the registered restrictive covenant. The question of restrictive covenant does not arise in relation to this case.

6. However, the Responsible Authority did not consider the matter under s 62(3). On the contrary, it regarded the request made to it as a request for an amendment to the existing permit itself, and considered the request under ss 72 and 73 PE Act. In fact no amendment to the permit document, or to the permit as granted by the Tribunal in the previous review proceeding, was involved.

7. I consider that the Responsible Authority was in error in referring itself to ss 72 and 73 PE Act, rather than s 62(3) thereof. Perhaps it was led to this view by the customary form of a condition requiring the submission of amended plans for approval, and indeed by the form of condition 1 in the permit in this case. It is common for such a condition to require the submission of amended plans (usually with the required amendments specified) for approval on the basis that, when approved, the plans will be endorsed and become part of the permit. This is true in the sense that another condition will require the endorsed plans to be observed if and when the permit is acted upon, or perhaps that requirement may safely be implied as a requirement of the permit if an explicit condition to that effect does not appear. However, endorsed plans are contemplated and required by the actual terms of the permit granted by the Tribunal or the Responsible Authority (as the case requires) and are referred to by anticipatory reference without actually being part of the permit when granted. It may be that the customary wording of such conditions could be improved upon, although I must confess that I have frequently used the customary formulation. I suspect that this sometimes leads responsible authorities to consider that the endorsed plans are part of a permit in such a way that they can only be amended by the responsible authority pursuant to ss 72 and 73, or by the Tribunal pursuant to s 87. That cannot be right. That interpretation overrules the clear wording of a provision enacted by Parliament in the PE Act. I refer to s 62(3) thereof. No permit condition or procedural practice of a responsible authority or understanding or misunderstanding of the two can have the effect of robbing s 62(3) of its legal effect.

8. For whatever reason, the responsible authority in this case ignored or overlooked s 62(3) and, as I have said, referred itself to ss 72 and 73.

9. Having referred itself to those provisions, it no doubt bore in mind the constraints imposed upon it by s 73. Its power to amend is subject to those constraints which provide that it may amend a permit if it (that is the responsible authority) is satisfied that the amendment does not change the effect of any condition required by the Tribunal and, amongst other things,

(c) will not cause an increase in detriment to any person;

10. It must be remembered that it is the responsible authority that must be satisfied of these things. It has the power and the duty to exercise its mind on these points, and it cannot transfer or delegate that discretion to objectors or strangers or to anyone else except in accordance with such powers of delegation as it has under the legislation.

11. The Responsible Authority embarked on a procedure that is not provided for in the legislation. It gave notice of the request to amend the plans to various people and invited them to object. The Responsible Authority is entitled to seek advice in relation to such a proposal, if it thinks that is appropriate. There is nothing illegal about inviting indications of opinion from neighbours or others. However most Responsible Authorities would rarely, if ever, follow that course in relation to the first set of plans tendered for approval and endorsement. It would be appropriate to only embark upon that course in relation to plans tendered for approval of amendments if that course would have been followed in relation to the new plans if those new plans had been the first and only plans lodged for approval and endorsement.

12. It in fact received some objections. It then concluded, on the basis of these objections, that it could not grant the proposed amendments. This is what I am informed by its representative, and that view appears to be borne out by documents it has lodged with the Tribunal. These documents include a file note signed by a planning officer on the 19 March 2003 and counter signed by a delegate of the Council on the following day. This document recites the history of the matter in relation to the request for endorsement of the amended plans. It makes some note of the amendments proposed including a reduction in the roof pitch and some alterations to interior layout to ensure that upstairs attics are more recessive. In fact, I am informed by Ms Miller, that the Responsible Authority is satisfied that the proposed amended plans are an improvement on the endorsed one, and that they are consistent with the permit and the current planning scheme. Nevertheless the file note says:-

Given the proposed amendments it was considered necessary to advertise the application.

It was certainly not legally necessary and really of doubtful necessity from any point of view.

13. The note goes on that two objections were received, some of the grounds which appear to be opposition to the proposal for which the permit previously granted, rather than opposition to the proposed amendment, although that is not true of all such grounds. The note however concludes:-

Given the receipt of objections the request to amend the development plans is refused.

14. As I have said this is signed by the planning officer and countersigned and thus adopted by a delegate of the Responsible Authority, no doubt exercising the powers of the Responsible Authority under delegation. That last sentence is wrong. Even if this matter was properly proceeding under ss 72 and 73, and refusal should have been on the basis that the Responsible Authority was not satisfied that the amendment would not cause an increase in detriment to any person. The mere fact that somebody objected, or suggested that there would be an increase in detriment, does not determine the matter. It does not excuse the Responsible Authority from making up its own mind as to whether it is satisfied or otherwise on the point. It cannot, as it seems to have done in this case, concluded that its hands were tied merely because it got an objection. The objection might be without merit or substance.

15. Its approach appears to be confirmed by its letter of the 19 March 2003 to the applicants wherein it notified its refusal. The letter includes the following:-

Further to your application received by Council on 30 October 2002 requesting an amendment to the development plans in relation to Planning Permit No. 27234 I advise the following:-

Under the provisions of Section 73(c) of the Planning and Environment Act 1987 a Responsible Authority can only amend a permit if it is satisfied amongst other things that the amendment will not cause an increase in detriment to any person.

On 16 January 2003 letters were sent to each objector of the original application, as well as to the owners of land adjoining and opposite the subject site, informing them of your request to amend the development plans.

Council has now received two letters objecting to the amendment.

Accordingly under the provisions of the Planning and Environment Act 1987, Council is unable to amend the permit as requested.

You are advised that if you wish to pursue the amendment you can either appeal directly to the Victorian Civil and Administrative Tribunal or a new planning application would need to be submitted to Council for consideration. Any further application would be processed and advertised in accordance with Section 52 of the Planning and Environment Act 1987 in order to maintain third party appeal rights for both the applicant and any subsequent objectors.

I have added the emphasis to the sentence in bold type in the above quotation. I have done so because what it says is quite wrong. The Council was not unable to amend the permit as requested and such prohibition on the Council did not follow "accordingly" from the previous sentence saying that two letters of objection had been received.

16. I have spelt all this out in some detail because this is, by no means, the first case I have encountered where a responsible authority has followed the course adopted by this Responsible Authority in this case. In fact I wonder if advice to follow this faulty course has been passed around amongst some responsible authorities.

17. I detect two major faults here. If and when ss 72 and 73 do apply it is not required, but not illegal, for the Responsible Authority to give notice of the proposed amendment. It would seem appropriate for a sensible assessment to be made as to whether that course should be followed in each particular case, rather than laying down some hard and fast rule that it must always be followed, without regard to the merits of the proposed amendment or the degree to which it might be of a quite minor and/or beneficial nature. In fact it will probably be rarely appropriate to do so. The mistake arises where, having given notice, or otherwise received indications of objection, the Responsible Authority regards itself as bound to refuse the request of amendment, not because it (or its delegate) is unable to be satisfied in relation to the constraints of s 73, but simply because somebody has raised an objection, and on the basis that this must necessarily lead to the conclusion that the proposed amendment is prohibited because it will cause an increase in detriment.

18. That, however, is by the way. The other, and more relevant error is to be applying ss 72 and 73 in relation to amendment of a permit where the only amendment proposed is in relation to a plan that has been approved under a permit. In those circumstances, as I have said, I consider that s 62(3) is the relevant provision if its constraints in relation to being consistent with the permit and the planning scheme are satisfied, then the Council can approve the proposed amendment to the approved plans. The endorsement is merely the evidence and identification of the plans so approved. The fact that one set of plans has been previously approved does not prohibit an amendment to those approved plans and it does not prohibit the approval and endorsement of a modified version provided that the constraints of s 62(3) are satisfied.

19. That does not mean that the Responsible Authority is obliged to approve anything. The plans as modified can only be approved if they satisfy the constraints. The useful way of looking at it is to ask, if these modified plans had been proposed for approval and endorsement instead of the ones that were earlier approved and endorsed, could these new ones have been approved and endorsed accordingly? If the answer to that question is yes, then the approved plans can be amended under s 62(3). Such amendment might not be conveniently achieved by approving, and subsequently endorsing, the new set of plans.

20. In this case I am faced with a new set of plans that both the applicant and the Responsible Authority consider to be:-

e) such that they could have been endorsed in the first place, if they had been submitted in preference to the ones that were submitted and endorsed.

21. In these circumstances I am satisfied that the Responsible Authority did have power under s 62(3) to consider and approve the new plans.

22. The question then arose as to what should be done in these circumstances. I did consider whether it would be appropriate to remit consideration of the matter to the Responsible Authority with directions and recommendations pursuant to s 51(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).

23. However, I have this s 149 PE Act proceeding before me. If it is valid it is probably more convenient and appropriate to proceed with it. Section 149 PE Act enables the Tribunal to review a decision of a responsible authority in relation to something which a condition in a permit requires to be done to its satisfaction or which must not be done without the consent or approval of the responsible authority. Does condition 1 in this permit raise the possibility of a review under that provision?

24. In fact the relevant part of condition 1 is, in my opinion, worded in a rather clumsy fashion. It begins:-

Before the use and development starts, three copies of amended plans drawn to scale with dimension (sic dimensions) and level (sic levels), to Australian Height Datum shown, including floor and eaves line levels, must be submitted to the satisfaction of the responsible authority. The plans will then be endorsed, and will form part of the permit.

25. That, at any rate, is how the first part of condition 1 appears in the permit document. The words in the document should reflect the terms in which the permit was granted. Unfortunately, in this case, they do not. The Responsible Authority, in issuing a permit pursuant to a direction of the Tribunal in granting a permit, is not free to change the words or terms in which the permit is granted. It must follow, for better or worse, the terms in which the Tribunal has granted the permit. In this case the Responsible Authority, issuing the permit, has departed from the terms of condition 1 as granted. The relevant first part, as ordered and directed by the Tribunal, reads:-

Before the use and development starts, three copies of amended plans drawn to scale and with dimensions and levels to the Australian Height Datum shown, including floor and eaves line levels, must be submitted to the to the (sic) satisfaction of the responsible authority. When approved as confirmation of the two to the satisfaction of the responsible authority, the plans will be endorsed and will then form part of the permit.

26. There appear to be some slips in the wording of the direction given by the Tribunal, but the correct procedure then is to draw the matter to the attention of the Tribunal and ask it to consider, if appropriate, correcting the order pursuant to s 119 VCAT Act.

27. In any event, the Responsible Authority, in this case, has not contented itself with attempting to correct apparent slips (and with including a few of its own). It has changed the condition by omitting the part reading:-

When approved as confirmation of the to the satisfaction of the responsible authority,

This omission is not altogether without significance in the present case.

28. Both versions of the first part of condition 1, quoted above, contain the odd expression that the amended plan "must be submitted to the satisfaction of the Responsible Authority". I am prepared to find that this really means that the plans are to be to the satisfaction of the responsible authority, rather than the submitting of them is to be to the satisfaction of the responsible authority. Visions of the plans submitted on the silver salver by a footman in livery and kneeling on one knee are not to the point. The words omitted from the Tribunal version, with their reference to approval of the plans and confirmation of the approval and/or confirmation of them being to the satisfaction of the Responsible Authority, are to the point. All in all, and in spite of vagaries of expression and mistranscriptions, I am satisfied that condition 1 required plans to the satisfaction of the responsible authority to be submitted for approval, then to be endorsed if approved.

29. An initial of plans set were so submitted, approved and endorsed. There is nothing to stop the Responsible Authority from being satisfied with and approving the new set. It has declined to do so. Section 149 enables a review of that refusal. The Tribunal is in a position to grant that approval.

30. So far as the merits are concerned, the whole thing becomes a non-event. Both sides are unanimous that the new plans for which approval is sought accord with s 62(3) PE Act and its constraints; and are an improvement on the originally endorsed version.

31. It is hardly convenient and expedient to adjourn this matter to a further hearing to consider the merits where there is no controversy about the merits. Section 100(2) VCAT Act empowers the Tribunal, where the parties agree, to conduct all or part of a proceeding entirely on the basis of documents without any physical appearance by the parties or their representatives or witnesses. Insofar as the hearing on the 15 May 2003 was appointed as a Directions Hearing rather than a full hearing, and insofar as any further hearing might otherwise be necessary, the parties have agreed that I, as the Tribunal, should conduct any remaining part of the proceeding that might otherwise require a hearing on the basis of the documents and without any further physical appearance of the parties, their representatives or witnesses. Not only that, they consent to my approving the relevant plans. I indicated, that with such agreement, and such consent, I would approve the plans and have done so in the order above.