M.F. MACNAMARA JANE MONK

DEPUTY PRESIDENT SENIOR MEMBER

For the Applicants: Mr Power of Freehills represented Ms Paulson and Mr McVicar. Mr Guss appeared in person.

For the Responsible Authority: Mr J. Carey of Maddock Lonie and Chisholm

For the Respondents: Mr J.H. Gobbo, QC instructed by Williams Winter & Higgs

1. Mr and Mrs O'Neill and their family live in a large weatherboard, Victorian house on the south-east corner of Park Crescent and Panther Place in Fairfield. Park Crescent runs approximately east-west and the main section of Panther Place runs north-south. The O'Neills' house is situated on a large and steeply sloping allotment running south to the Yarra River near the well known Fairfield Boat House. In 1988 a plan of subdivision was approved. The O'Neills' house was left on Lot 1 with an area of 2,354sq m. Lots 2, 3 and 4 were carved out from the larger allotment between Lot 1 and the Yarra River. They have two storey split level contemporary style dwellings erected on them. Their road access is provided via a steep, narrow, carriageway easement running east off Panther Place. All of these allotments directly abut the Yarra River Reserve and are located at high points near the carriageway easement so as to be above the river's one hundred year flood level.

2.

The carriageway easement is paved with pressed concrete and is to all intents and purposes part of Panther Place. Whilst it is unnecessary for us to make any distinct findings on this point, the consensus of the representatives appearing was that this eastward extension of Panther Place was to be regarded as a private carriageway rather than a public highway.

3.

In 1994 in Proceeding 1994/25416 Mr Webb, Deputy President, sitting in the Planning Division of the Administrative Appeals Tribunal, declined to direct the issue of a permit to the O'Neills to subdivide Lot 1 into three allotments. The proposal would have entailed new allotments 2 and 3 gaining access to their households via the carriageway easement. Mr Webb observed:

"That part of the present pavement is very steep and would require a vehicle leaving the flat part of the carriageway easement exercising considerable engine power to mount that steep slope".

4. Mr Webb was also influenced by what he perceived as a failure to conform to the policies stated in a document known as the River Concept Plan. He said:

"The size of proposed Lots 2 and 3 do not provide sufficient areas for retention of trees or the provision of landscaped areas and their development would be contrary to the provisions of the Concept Plan"

5.

The O'Neills then sought a permit for a two lot plan of subdivision which the City of Yarra as Responsible Authority refused to grant. They sought a review of that refusal and in a decision dated 16 February 1996 and Proceeding No. 1995/32335 Ms Monk as a Member of the Tribunal Planning Division determined to grant the application for subdivision subject to some 10 conditions. As will appear Condition 6 of the permit dealing with vehicular access is now relied upon by the objectors. That subdivision is Registered No. PS 402710L under the Transfer of Land Act 1958 and created two lots, Lot 1 consisting of 1900sq m included the O'Neill's house with the main frontage of 49.83sq m to Park Crescent, a short frontage of 9.5m to Panther Place meeting its south-eastern intersection with Park Crescent. Lot 2 of 454sq m was excised from the south-western corner of the original Lot 1 and was given a 19m frontage to the eastern side of Panther Place.

6.

On 10 June 1988 the O'Neills and the then owners of Lots 2, 3 and 4 entered into a "roadway agreement" to regulate the use of the carriageway easement. The agreement provided that decisions relative to the roadway would be made by a simple majority. In the event that there was an equality of votes "the owner of Lot 1 [should] have another vote". Clause 5 provided "No motor vehicles shall be parked on any part of the roadway without the permission of the owner of the adjoining lot." The agreement was expressed to "bind the purchasers [that is the owners other than the O'Neills] or their successors and assigns as a condition of the continued use of the easement created by the Plan of Subdivision in favour of the purchasers". The easements of way, according to each of the owners, were granted as part of the subdivision process in accordance with Section 98 of the Transfer of Land Act 1958.

7.

On 21 June 2000 the O'Neills filed Planning Application No. 00077 with the City of Yarra as Responsible Authority. It sought a permit for the construction of a driveway and retaining wall and the removal of trees. The application was dealt with under delegation on 2 October 2000 with the delegates in accordance with the officer's report determining to grant the permit sought subject to six conditions. The final "condition" is a note to the effect that "a building permit must be obtained before development is commenced". On 18 October 2000 Mr Joseph Guss, Mr David Vaux and Ms Wendy Fisher lodged applications for review of the Council's determination. Mr Vaux and Ms Fisher are the owners of Lot 2 on the original plan of subdivision. Mr Guss is their tenant and occupier of Lot 3 on the original plan of subdivision which is in the middle flanked by Lot 2 to the east and Lot 4 to the west.. Lot 2 is located furthest to the east along the carriageway easement. Ms Andrea Paulsen and Mr Shaun McVicar of No. 1 Panther Place also lodged an application for review, they are the owners of Lot 2 on the original plan of subdivision the one furthest to the east along the carriageway easement.

8.

The site is zoned Residential 1 under the Yarra Planning Scheme. No permit is required for the proposed works by reason of that zoning, however the land is affected by Design and Development Overlay No. 1 as part of the Yarra River Corridor. It is also subject to an Environmental Significance Overlay. Clause 3 of Schedule 1 requires a permit for the removal, destruction or lopping of vegetation on land affected by the Environmental Significance Overlay. Moreover, since Clause 43.02-2 requires that a permit be granted for the construction of a building or the carrying out of works, the excavation for the construction of the car parking spaces and any necessary retaining wall would require planning approval pursuant to Design and Development Overlay No. 1.

9.

The proposal considered by the Council entailed the removal of the retaining wall running from the north-west to the south-east providing two car parks to be accessed from the east via the hard stand. The two car parks are proposed to run east-west. The original proposal entails the retention of an existing retaining wall abutting the edge of the carriageway easement on the north which would constitute the southern boundary of the proposed car parking area. The area would have to be excavated to provide a flat surface at the same level as the carriageway easement. The retaining wall abutting the existing hard stand area (a widening of the easement to facilitate turning) would have to be extended to the east to the end of the car parking area thereby providing its northern boundary and from the end of that eastern extension to the south back towards the northern edge of the carriageway easement. Access from the O'Neills' house is to be by a pathway and steps accessing the proposed parking area between the existing retaining wall on the northern boundary of the easement and the end of the new retaining wall constituting the eastern boundary of the parking area. At the hearing Mr Gobbo proposed variations upon the initial proposal. The first of those entailed the removal of the existing retaining wall running north-west to south-east and forming the boundary of the "hard stand" and replacing it with a retaining wall running north-south, thereby adding an additional triangular wedge of land to the hard stand with its apex at the southern boundary of the easement and providing for north-south parking with access from the northern boundary of the carriageway easement. Once again the retaining wall be extended to the east to provide the northern boundary of the parking area and a new retaining wall would be constructed further to the east running north-south with a gap to allow access from the O'Neill property. Mr Gobbo suggested that either the proposed new north-south retaining wall or the existing east-west retaining wall which would otherwise constitute the southern boundary of the new parking area or both could be removed.

10.

Mr Carey of Maddock Lonie and Chisholm represented the Council. He took us at some length to the provisions and decision guidelines relative to the two overlays. It is unnecessary in the circumstances to go to the details of those matters because as will appear later, none of the objectors represented before us desired to raised any issues as to the matters principally dealt with in those provisions viz., the environmental protection of the river and the visual amenity of the river and its environs including the riparian vegetation.

11.

Mr Carey submitted that the proposal was not inconsistent with any of the visual or environmental values which the overlays are aimed at protecting. A reference to Council's Horticultural Adviser confirmed that there could be no objection to the removal of two Eucalyptus Trees subject to a condition that they be replaced with partly grown substitute trees.

12.

Mr Carey further submitted that in so far as the objectors had placed reliance upon Condition 6 of the permit which Ms Monk directed to issue by her 1996 determination, there was no legal impediment to a new permit being granted in terms inconsistent with the earlier permit. He submitted that in the circumstances no reliance could be placed upon the doctrines of res judicata or issue estoppel. He referred to a decision of Mr Byard as Deputy President of the Administrative Appeals Tribunal in City of Northcote v El Alam (1994) 13 AATR 28 and the decision on appeal from Mr Byard's decision of Mandie J. reported [1996] VicRp 95; [1996] 2 VR 672.

13.

Mr Power of Freehills represented Ms Paulson and Mr McVicar. He submitted that Clause 65.01 of the Planning Scheme required a Responsible Authority and on review the Tribunal to consider a number of matters including:

• the orderly planning of the area; and

• the effect on the amenity of the area.

14.

Clause 65 in his submission justified and required a far wider consideration of factors than the environmental and visual considerations referred to by Mr Carey in his submission. He submitted that the Council's approach both in the officer's report and the presentation before this Tribunal was unduly narrow and failed to take any proper account of the following:

• The impact of additional vehicle movement associated with the construction of the two car parking spaces;

• Potential conflict between vehicles using these car parking spaces and traffic movements and car parking requirements for Nos. 1, 2, 3 and 4 Panther Place and their visitors; and

• The fact that the Administrative Appeals Tribunal has twice accepted that further vehicular access from Panther Place, to land to the north, is unacceptable.

15.

The two Administrative Appeals Tribunal decisions referred to by Mr Power are Mr Webb's determination, of which we have already quoted and Ms Monk's decision given in 1996. That decision imposed a condition on the permit for subdivision in the following terms:

"Vehicular access to Lot 1, as depicted on the endorsed plan, shall be via the upper level driveway only."

16.

According to Mr Power we were obliged to consider not only the matters obviously connected with the two overlays but also "the consequential impacts of constructing the car parking spaces" by which he meant traffic issues on the carriageway easement. He referred to Harvey Wreckers v City of Frankston 1997/14018; St Catherine's School v City of Prahran 8 APA 167 and the Trustees of the De La Salle Brothers v City of Malvern 7 AATRA 108. He placed particular reliance on a decision of Mr Byard in the matter of John Paul College v City of Frankston (1991) 7 AATR 185 in which he submitted Mr Byard imposed land use conditions on a development permit viz. restrictions on hours of operation. He conceded that a responsible authority or the Tribunal

"Can only even impose a single 'use' condition aimed to limit the amenity impacts of a development if it has already considered the nature and extent of those impacts. This is all we are asking the Tribunal to do in this instance in deciding upon the merits of this application. Construction of the car park will result in additional traffic movement on the private carriageway easement at Panther Place."

17.

These matters viz. amenity and orderly planning are referred to in Clause 65.01 of the Planning Scheme and are he submitted proper considerations.

18.

According to Mr Power the easement is narrow and conflicts and difficulties arise "where vehicles park in the hard stand area, preventing or affecting vehicles leaving 1 Panther Place to utilise the hard stand area as their turning circle". The "hard stand" referred to is a trapezium-shaped widening of the easement immediately opposite the northern boundary of Lot 3. It is delineated on all sides save for its abuttal to the easement proper by retaining walls. It comfortably provides parking off the easement for two standard motor vehicles pointing toward one another at 60o with a large vacant wedge between them.

19.

According to Mr Power:

"The lack of visitor and delivery car parking spaces makes it preferable, and in some cases necessary, for vehicles to park in Panther Place, and in particular in the hard stand area located on the land. This will obviously be problematic if the proposed development proceeds as the hard stand area will provide the immediate point of entry for the car parking spaces."

20. Mr Power submitted that if a choice were between the original proposal and the amended proposal, in any of its variants, his clients would regard the original as the lessor of two evils.

21.

He said that persons using the additional car parking spaces would need to perform difficult manoeuvres which would create traffic conflicts. He said the pressed concrete surface of the easement and its steep slope could lead to traffic slipping. The placing of these additional car parking spaces would, in his submission, create a noise problem. Engines might be revved as part of the difficult manoeuvres and to enable the cars to travel up the steep slope. The noise of car doors slamming would create a nuisance and a stipulation that the parking spaces be located within a garage would not solve this problem.

22.

In Mr Power's submission, since the O'Neills' property already has a vehicle access point at Park Crescent to provide this additional and problematic one would be inconsistent with orderly planning. These matters had according to Mr Power weighed with the Tribunal in 1994 in leading it to reject the subdivision proposal then under consideration. Mr Webb had obviously been influenced by the evidence of Mr Russell Symons, a traffic engineer who had given evidence on behalf of the objectors. He said that Ms Monk in the 1996 proceeding had also been concerned to avoid an additional access point from the "lower, steeper and more constrained sections of Panther Place and the carriageway easement". He submitted that the O'Neills ought not to be given a "third bite of the cherry".

23.

Mr Power placed particular reliance upon Condition 6 of Permit 95/086 which issued as a result of Ms Monk's determination. We have already quoted the relevant condition which appears as Condition 5 in Ms Monk's determination. Presumably however the numbering of the condition has changed in their being translated to the permit itself. Mr Power submitted that this condition is no typographical error. He said it would be in any event impermissible to seek to go behind the face of the permit. He referred to D.D.L. Cable and Electrical Co Pty Ltd v Brighton City Council (1991) 72 LGRA 227 and Auburn Municipal Council v Szabo (1989) 67 LGRA 427. He said that the only material which could be looked at aside from the face of the permit for the purpose of construing it were "the endorsed plans, the schedule of materials and finishes under Condition 3, any consent which the Responsible Authority may have issued under Condition 5, and any agreement between Yarra Valley Water and the respondents under Condition 10. If the endorsed plans do not indicate that vehicular access to the land can only be achieved from Park Crescent, then that simply means that the applicant has failed to comply with the terms of the permit;". He submitted that the permit could not be regarded as having "expired" in the sense of having merged in the subdivision cf Rosemeirer v City of Greater Geelong (1996/45189). He submitted that the condition was fundamental and not a minor one. The only means whereby the condition could be altered would be by request under Section 87 of the Planning and Environment Act. Until such a request is made and the condition was altered, a further permit in flat contradiction to this condition could not be issued.

24.

Mr Guss as tenant represented himself and also his landlords Fisher and Vaux. He adopted all that Mr Power had said and submitted further that Condition 6 of the permit deriving as it did from a Tribunal determination, constituted a res judicata or issue estoppel which this Tribunal could not go against.

25.

He took us at length to the treatment of these topics in Halsbury's Laws of Australia. He noted that whilst Mr Power's clients had not been parties to the 1996 Tribunal proceeding, they were nevertheless "privies" to the determination because they were successors in title to persons who were. He said that his addition as a further party did not diminish the binding nature of the res judicata or issue estoppel between the original parties and their privies.

26.

It is convenient first to turn to the submissions made by Mr Guss made on res judicate and issue estoppel. For this purpose we refer to the classic exposition of these matters in Anglo-Australian law to be found in the judgment of Sir Own Dixon in Blair v Curran:

"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v Inhabitants of the Township of Hartington Middle Quarter, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessary to assert that the former decision was erroneous." [1939] HCA 23; (1939) 62 CLR 464, 531-2

27.

According to this analysis, aside from any other difficulties, there cannot be a res judicata effectively relied upon here because what the doctrine of res judicata protects from re-litigation is according to Sir Owen's formulation "the very right or cause of action claimed or put in suit ... in the form of proceedings". The proceedings before Ms Monk related to an application for a permit for a subdivision made in 1996. This proceeding relates to a separate application for a very different permission, namely one for works. In Russo v Kogarah Municipal Council [1999] NSWCA 303; (1999) 105 LGERA 290 the New South Wales Court of Appeal heard an appeal from that State's Land and Environment Court. The proponent brought before the Land and Environment Court a development proposal which was conceded to have been "for all intents and purposes, identical with ... two previous development applications" which had been unsuccessful. The Judge dismissed the matter on the basis that "the subject matter of the appeal is res judicata."

28.

The Court rejected His Honour's analysis. Davies AJA said "in the present case, the principal of res judicata did not apply because the application to the Land and Environment Court was brought from a fresh decision of the Kogarah Municipal Council. There was a new cause of action." [1999] NSWCA 303; (1999) 105 LGERA 290,

"It may be that in the area of planning law, the doctrine of res judicata may not be strictly applicable because one can well imagine that there could be changes within an area, whereby the requirements of industry for a child care centre could lead to a finding of consistency with the objective" [1999] NSWCA 303; (1999) 105 LGERA 290, 292-3

30.

All of the Judges however concluded that to bring substantially the same proposal forward again when a planning court or tribunal had already dismissed such a proposal previously amounted to an abuse of court and the Learned Judge of the Land and Environment Court had been correct to dismiss the appeal.

31.

In Cook v Faithland Inc. (1993) 79 LGERA 308 the Full Court of the Supreme Court of Victoria (Fullagar, Marks and J.D. Phillips JJ) also considered the application of the doctrine of res judicata to an ordinary Tribunal planning permit determination. Fullagar J. said:

"A decision to grant a permit or not whether made by the Responsible Authority or the appeal Tribunal, is not a decision as to what are the legal rights of the so-called parties as exist immediately before giving the decision. Rather it seems to me to be an administrative decision of the question whether permits to do otherwise prohibited acts shall be granted in the discretion of the administrative Tribunal. This being so, I think as at present advised that there can be no question of res judicata here, as defined by Dixon J. in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 especially at 531-532 [the passage which we have quoted], and by Fullagar J in Jackson v Goldsmith (1950) 81 CLR 466 at 466-467 in a judgement approved by later decisions of the High Court. This is because no determination is made of what were the legal rights of the parties immediately before the decision, and because the actual record shows only that a permit is granted or not granted. There is no judgment into which some pre-existing cause of action or rights can be said to have merged." (1993) 79 LGERA 308, 309

32.

We accept that there may be Tribunal decisions which are apt to create res judicatae or issue estoppels. See for instance Lambidis v Commissioner of Police (1995) 37 NSWLR 320 and the cases there considered. It is the peculiar nature of a planning permit review application as described by Davies AJA and Fullagar J. that prevents such proceedings as distinct from declaratory proceedings, enforcement proceedings, adjudications in the Civil List of this Tribunal between a landlord and tenant etc. from creating res judicatae. Nor in our opinion can the related doctrine of issue estoppel as described by Sir Owen Dixon have any application here. As Davies AJA said in Russo's case:

"The principle of issue estoppel is also difficult to apply in the field of town planning. In a case such as the present, it may be difficult to find a point of fact which should be determined once and for all. Circumstances change. The issue whether a development is consistent with a zoning may turn upon facts as they exist when the issue comes to be decided." [1999] NSWCA 303; (1999) 105 LGERA 290, 293

"Further it seems to me that there can be no question of issue estoppel here as defined in those two cases [viz. Blair v Curran and Jackson v Goldsmith] because it is impossible to identify any ultimate fact the finding of which is essential to the decision to refuse or grant the permit other than the ultimate fact that it was proper or not to grant or refuse the permit, having regard to all the circumstances considered by the Tribunal." (1993) 79 LGERA 308, 309

34.

In Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273, 290 Lord Bridge as a Member of the House of Lords said:

"A decision to grant planning permission creates, a Court, the rights which such a grant confers, but a decision to withhold planning permission resolves no issue of legal right whatever. It is no more than a decision that in existing circumstances and in the light of existing planning policies, a development in question is not one which it would be appropriate to permit." [1990] 2 AC 273, 290

35.

In any event a determination as to the desirable mode of access to a particular parcel of land in 1996 is not the same issue as the desirable point of entry to the same piece of land in 2001. See El Alam v Northcote City Council [1996] VicRp 95; [1996] 2 VR 672, 684 per Mandie J.

36.

We reject the contentions based on the alleged res judicata or issue estoppel.

37.

In our view there is much to be said for the contentions made on behalf of the O'Neills and the Responsible Authority that the only matters which it is proper to consider as to the "merits" of this proceeding are matters specifically relating to the subject matter of the two overlays to which this land is subject. It is only because of the operation of these overlays that a permit for these proposed works is required. These overlays devote themselves to matters of visual amenity and environmental protection. They seem to be concerned not at all with issues of traffic management, though the City of Yarra's Yarra River Corridor Urban Design Guidelines (an incorporated document) does concern itself with access roads and car parking areas and hard surfaces. See Paragraph A(iv). The text of the guidelines relative to these matters and also to fences (see A(ix)) show that the guidelines are dealing with issues of visual amenity rather than traffic management. Nevertheless we assume for the purposes of our determination without deciding that the issues of amenity and "orderly planning" relied upon by the objectors in this proceeding, being principally traffic management issues on the carriageway easement are proper considerations for the purposes of our determination.

38.

Even making that assumption we are unpersuaded that any of the matters urged by the objectors would be sufficient to lead to the denial of the permit sought. The traffic management issues must be seen in the context that this proposed parking area is a second or auxiliary point of access to a single allotment which already has a generally more convenient access at Park Avenue. The concerns expressed by Mr Webb in 1994 were with respect to a proposal which would have had access points for a separate household at this lower point on the carriageway easement. Secondly, the complaints made about the use of the "hard stand" area assume the existence of a right to use this as visitor car parking for the objectors. Of course the proper entitlements under the "roadway agreement" and under the easements of way are matters of general law for interpretation and enforcement by the ordinary civil courts; nevertheless, one cannot consider planning issues in total isolation from civil proprietary rights. For instance a development permit could not be rejected on the basis of complaints by neighbours who had been using the subject site as a park without having acquired any rights by way of adverse possession. The roadway agreement gives no absolute right to park. In so far as the roadway is governed by the entitlements under a carriageway easement arising from the plan of subdivision, a carriageway easement gives a right to "pass and re-pass" not a right to park. See Schedule 12 to the Transfer of Land Act 1958.

39.

We are not persuaded that the threatened conflicts are of sufficient importance to justify the rejection of this permit application.

40.

A more difficult issue arises in considering the relative merits of the O'Neills' original proposal and the variants suggested by Mr Gobbo at the hearing. These variants were advanced as "compromises" with a view to eliciting a withdrawal of the neighbours' objections. They failed to achieve that result. One would naturally assume that the initial proposal represented the O'Neill's preferred solution. As it turned out, we understood Mr Gobbo to content that the alternative proposal in one of its variants should be adopted in lieu of the original proposal. Mr Guss on behalf of himself and his lessors contended that cars manoeuvring out of the spaces shown on the amended proposal would naturally back into his property. We did not understand Mr Gobbo to contend that a car exiting one of the proposed north-south parking spaces could do so in a single turn without intruding upon the Guss property. Nevertheless, he suggested a more elaborate turn would enable a car to exit without intrusion. These spaces are said to be for use by the O'Neills' children and visitors. In so far as the latter use these spaces, they are not subject to any direct control as to their mode of manoeuvre. We think that there were good grounds for Mr Guss to prefer the original rather than one of the revised proposals. Accordingly, as will appear hereafter we propose affirming Council's decision without any variation or amendment.

41.

This brings us to what is the knottiest problem, namely what has been referred to as Condition 6 of the 1996 permit and what appears as Condition 5 in the Tribunal's determination. The proponent and the Council say that this condition contains a typographical error and should refer to Lot 2 rather than Lot 1. The objectors submit that it constitutes a clear prohibition upon the present proposal. As we have already described, access to Lot 1 of the 1996 subdivision is not "via the upper level driveway" but rather via Park Crescent. At page 5 of her 1996 determination, Ms Monk said: "Access to the homestead lot [that is Lot 1] would be via a recently constructed crossover to Park Crescent located a short distance east of Panther Place". That is in fact what has occurred. Earlier in describing the proposal, she said:

"Vehicular access to the new lot would be via an existing gate and drive off the recently constructed section of Panther Place approximately 9m south of Park Crescent. The gate presently provides access to the upper and middle level terraces of the existing garden. A further gate and driveway, located approximately 29m south of Park Crescent and just to the north of a steep bend in the carriageway easement to Lots 2 to 4, provides access to the lower garden terrace. It is not intended that this lower drive be made available for use as the principal vehicle access point."

42.

In our view, in framing the condition Ms Monk was seeking to give effect to these aspects of the proposal and to require that access to Unit 2 be via the first of the gates and driveways described. We are persuaded therefore that there has been an accidental mistake in the Tribunal's decision. Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 provides a power of correction of Tribunal orders in words different but in substance similar to the "slip rule" employed by courts of law. The same parties who were the parties to the 1996 proceeding are before us today except that D. & J. Stanisich had been replaced by Paulson and McVicar, the latter are the Stanisich's successors in title. There would therefore seem to be no problem of natural justice in our correcting the 1996 determination in the manner suggested by the Responsible Authority and the O'Neills. There is a problem however in that Ms Monk's determination was given in the Administrative Appeals Tribunal and not by this Tribunal. There is nothing in the Victorian Civil and Administrative Tribunal Act 1998 which directly empowers this Tribunal to correct orders made by a former Tribunal. Section 49A of the Administrative Appeals Tribunal Act 1984 authorised the Administrative Appeals Tribunal to correct its orders in a manner similar to corrections made by Courts under a "slip rule" and in similar terms to Section 119 of the Victorian Civil and Administrative Tribunal Act 1998; but the Administrative Appeals Tribunal Act is repealed and the Administrative Appeals Tribunal is abolished. When this Tribunal was established transitional provisions were included in a statute known as the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998. Those provisions were to be found in Schedule 2 of that Act. During the hearing the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 was produced in the form in which it appeared in a loose leaf service. This print appeared to omit the transitional provisions in Schedule 2 altogether. Subsequent enquiries disclose that the loose leaf service produced only extracts from the statute and the transitional provisions in Schedule 2 remain in force.

43.

Clause 9 of Schedule 2 deals with pending proceedings and in effect authorises this Tribunal to take over and complete any proceedings pending in the former Tribunals including the Administrative Appeals Tribunal. The Tribunal determination in question here was finally determined in 1996. It could not in any way be regarded as "pending" as at the 1st of July 1998 when the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 came into force. Clause 10 provides under the heading "Orders made by former Tribunals":

"(1) An order or decision made by a former Tribunal in the proceeding finally determined by it before the commencement day may be in force -

(a) despite its repeal, in accordance with any enforcement process proscribed for or in relation to that proceeding by or under any Act as in force immediately before that day if any step it had taken in accordance with that process before that day

(b) in any case

(i) in accordance with the VCAT Act as if it were an order of the new Tribunal if the proceeding was in relation to a Tribunal matter; or

44.

Clause 14 gives "power to resolve transitional difficulties". Sub-clause (1) provides, inter alia :

"If any difficulty arises because of the operation of this schedule ... in relation to a Tribunal matter to which Clause 10(1) applies, the new Tribunal constituted by a Presidential member may make any order that it considers appropriate to resolve the difficulty."

"An order or decision under this clause has effect despite any provision to the contrary made by or under any Act."

46.

In our view this provision allows an order to be made in the terms which would be authorised with respect to one of this Tribunal's orders under Section 119 of the Victorian Civil and Administrative Tribunal Act or could have been made under Section 49A by the Administrative Appeals Tribunal with respect to one of its own orders had the Tribunal not been abolished. Clause 10(1) deals with the enforcement of Tribunal orders, however the power bestowed by Clause 14 is "in relation to a Tribunal matter to which Clause 10(1) applies". The Tribunal matters to which that sub-clause apply are orders or decisions "made by a former Tribunal in a proceeding finally determined by it before the commencement day". In our view the problem just identified constitutes the sort of difficulty which Clause 14 was inserted to deal with. The difficulties which Clause 14 provides to be dealt with are not in terms restricted to difficulties of the enforcement of orders. Sub-clause (3) entitles the Tribunal to make an order under Clause 14 on its own initiative. Accordingly, the Presiding Deputy President will make a separate order to correct the Administrative Appeals Tribunal's 1996 determination.

47.

In our view, even although the 1996 determination is finally concluded, Clause 14 in combination with Clause 10 of the Schedule to the Miscellaneous Amendments Act constitutes an exception to the doctrine of "functus officio". To correct the Tribunal determination, however, does not correct the permit itself. Section 71 of the Planning and Environment Act 1987 creates a "slip rule" for responsible authorities. No action has been taken under that Section and it bestows no power on the Tribunal. The correction of the permit would not be a "minor amendment" and so Sections 72 and 73 would have no application. Mr Power said the condition could only be changed by a variation requested under Section 87 of the act; but a permit to subdivide, as the 1996 permit was is a permit for development. See Paragraph (d) of the definition of "development" in Section 3. No variation can be made under Section 87 if the "development" is "substantially carried out". Section 88(b). The "development" is one allowed by the permit not the conditions. Even if compliance with the conditions is part of the "carrying out" of a development (which we doubt) a permit to subdivide is "substantially carried out" when, as here the subdivision is registered and the allotments are in separate occupation. This cannot be changed by one outstanding "mistaken" condition. Section 87 is not available.

48.

It is nevertheless possible to issue the new permit in the form determined by the Responsible Authority despite the persistence of Condition 6 of the 1996 permit or its original form. The matter of the City of Brighton v Eura Nominees Pty Ltd (1983) 2 PAB 180 Gobbo J. considered a challenge to a determination made by the Planning Appeals Board to direct the issue of a permit. The order to review the Board's determination was granted on a number of grounds. His Honour upheld the first ground finding that the Board had misdirected itself in making a finding that the subject site was a "shop" within the meaning of the relevant Planning Scheme. A further argument pressed was that the permit which the Board directed be issued was inconsistent with an earlier permit issued in 1969. Whilst strictly obiter His Honour considered this argument, saying:

"Where there is an existing permit and an owner or occupier interested person seeks to bring about an improved development, it would appear to be open to such a person to apply on a basis that brought about a wholly new permit for the site in question. In that event, on its proper construction the second application involves a replacement permit for the site and is not really a mere alteration of an existing permit. No conflict would appear to arise because the second application in the second permit proceeds on the basis of a permit for a new development. Nor does it purport to seek a variation of an earlier permit. In the event it will not be necessary for me to decide whether the Board was entitled to construe the application in this place in this manner." (1983) 2 PAB 180, 186

49.

To say that a condition which cannot be varied under Section 87 constitutes an immutable barrier to anything inconsistent with it is to give a permit condition (which may have issued without a review proceeding at all) the same force as a res judicata or issue estoppel. This is inappropriate for all the same reasons that this status is denied to the findings and orders emanating from permit review hearings. The public interest is adequately protected by the requirement that any further and inconsistent permit to be granted only after the full processes of the Planning and Environment Act has been completed including any necessary review proceedings. Neither the Responsible Authority nor this Tribunal is prevented from granting this permit by Condition 6 of the 1996 permit. If it comes to that the Responsible Authority may be able to correct the permit under Section 71, the "slip" being a mistaken belief that the Tribunal's determination correctly stated its intention as to what became Condition 6.

50.

The effect of our decision is simply to affirm the Responsible Authority's Notice of Determination to Grant a Permit. There is some talk of a condition relative to further subdivision of the O'Neills' property or a Section 173 agreement with respect to that. The objectors fear that the grant of this permit is merely a stalking horse to enable a further attempt at the subdivision rejected by Mr Webb in 1994. It goes without saying that if a further application to subdivide were made, that would be a separate application in no way predetermined by the O'Neills success in this proceeding. In particular it would be noted by anyone considering such an application either at the Council or Tribunal level that it was a matter of significance to us in granting this application that the parking access was a subsidiary and secondary access to the O'Neill property and not intended as the primary access for new households. Mr Gobbo said his clients were unwilling to enter into a Section 173 agreement with the Responsible Authority and the objectors binding them not to subdivide for an indefinite period. He did indicate a willingness on the part of his clients to agree to a prohibition on subdivision for a period of five years. We heard no argument as to whether a condition in the permit simply prohibiting an application for subdivision within that period would be valid. In the end we believe that the assurance that any further subdivision application would be considered on its merits by Council and the Tribunal on review constitutes a proper assurance to these objectors. We do not propose to include any condition to that effect.