Guss & Ors v Yarra CC No. 3 [2001] VCAT 1626

Guss & Ors v Yarra CC No. 3 [2001] VCAT 1626 - VCAT 2001 case summary — Zoe

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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.

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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.

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"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

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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:

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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":

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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:

At a glance

Court

Decision date

Before

Source

Judgment (50 paragraphs)

Guss & Ors v Yarra CC No. 3 [2001] VCAT 1626 (11 July 2001)

Parties

Legislation Cited (5)

Cases Cited (5)