Victorian Civil and Administrative Tribunal|2005-10-21

Hepburn SC v Cross [2005] VCAT 2231 (21 October 2005)

Application for declaration under section 149A of the Planning and Environment Act 1987; Application to join a party pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998; Ruling as to relevance of material to be considered by Tribunal; Costs reserved.

1 In accordance with Section 149A(4) of the Planning and Environment Act 1987 as a legal practitioner I make the following declaration:

(a)

That the plans endorsed to Permit No. NO2000/6429 as amended on 15 March 2004 do not require the permit applicant to provide a glass enclosure on the outside northern wall of the spa and plunge pool area.

(b)

That I interpret the said plans to mean that there is no glazing on the three external openings into this area and that the external edge of the spas and plunge pool area is defined by a low wall which is shown on plan TP-09 Rev B (as amended on 15 March 2004) by two light parallel lines which indicate that the wall does not extend up to the height at which the section is taken.

(c)

The only glazing in the vicinity of the spas and plunge pool is a glass wall and door located on the inner side of the spa's and plunge pool. The location of that glass wall and door is noted on Plan TP-12 Rev B as "g_lazing and doors beyond"_.

1 Any party that wishes to make an application for costs must prepare, within thirty days of the date of this order:-

i

a detailed bill of its legal costs and disbursements (as they were billed to the client and not in taxable form);

ii

the scale of costs it seeks;

iii

the persons against whom it seeks those costs or part of them;

iv

its submissions on costs.

2 The party seeking costs must serve a copy of the above documents upon all parties and upon VCAT within seven days thereafter, and provide proof of service upon all parties to VCAT within seven days after service.

3 Parties must prepare their submissions in response within thirty days of service upon them of the costs application made against them.

4 Parties preparing submissions in response must serve a copy of their submissions in response upon all parties and upon VCAT within seven days after the elapse of time in Direction 3 above, and provide proof of service to VCAT within seven days after service.

5 The party seeking costs must serve any reply to the responses within fourteen days of service upon them of the parties' responses. Such service must be made upon all parties and to VCAT with proof of service to VCAT.

Mr Tom Pikusa, Barrister. He called an expert witness, Mr Peter Quigley, Architect.

Mr Mark Naughton, Solicitor appeared for Richard Rigby

1 By letter dated 30 June 2005, Mr C Tsourounakis, Town Planner formally applied to the Tribunal on behalf of the responsible authority for a declaration under section 149A of the Planning and Environment Act 1987 (the Act) in respect of the property at 124 Main Road, Hepburn Springs.

2 The letter stated:

"The Responsible Authority is concerned over the issue of the lack of glazing to the exterior wall (to enclose the area) in the vicinity to the two spas and plunge pool area located on the northern portion of the building."

"The declaration sought is primarily on the question of whether the endorsed plans require the permit applicant to provide a glass enclosure on the northern section/wall of the spa and plunge pool area. Further, the said glazed works in this area of the building is in fact required to accord with approved plans."

3 At the commencement of the hearing Mr Naughton, Solicitor who appeared on behalf of Richard Rigby the owner of an adjoining property known as Villa Parma at 128 Main Road, Hepburn Springs applied for his client to be joined as a party on the basis that his interests were affected by the declaration sought.

4 Mr Naughton asserted that his client came within the provision of section 60 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) which provides that a permit may be joined as a party to proceedings if the Tribunal considers that -

(a)

Person ought to be bound by, or have the benefit of, an order of the Tribunal in the proceeding;

(b)

The person's interests are affected by the proceeding; or

(c)

For any other reason it is desirable that the person be joined as a party.

5 Mr Pikusa, Barrister who appeared on behalf of the respondent objected to the joining of Mr Rigby as a party. He claimed that Mr Rigby was not a "specified person" as defined in section 148 of the Act and was therefore not entitled to be a party to the proceeding.

6 After hearing argument and submissions from both Mr Naughton and Mr Pikusa the Tribunal ruled that it would order that Mr Rigby be joined as a party to the proceeding on the basis that he was a person who's interests are affected by the proceeding.

RULING AS TO RELEVANCE OF MATERIAL TO BE CONSIDERED BY TRIBUNAL

7 During the course of the hearing Mr Tsourounakis, who appeared on behalf of the responsible authority, sought to tender photographs of various aspects of the development carried out on the applicant's land pursuant to planning permit No 2000/6429 issued by the responsible authority on 27 December 2000. The permit authorised "additions and alterations to an existing hotel complex - tourist facility, generally in accordance with endorsed plans and other information submitted in respect of the property at 124 Main Road, Hepburn Springs.

8 He also sought to tender a number of documents ancillary to the planning permit process namely the planning permit application and the Officer's report in respect thereof and correspondence dealing with a number of amendments to the endorsed plans which were made on 5 March 2002, 28 July 2003 and 15 March 2004.

9 As the declaration sought referred to the interpretation of the permit pursuant to section 149A of the Act the Tribunal ruled that the only documentation which it could consider was the plans endorsed to the permit as the request for the declaration specifically referred to the question of "whether the endorsed plans require the permit applicant to provide a glass enclosure on the northern section/wall of the spa and plunge pool area".

10 Mr Naughton and Mr Pikusa also sought to tender photographs and other material and the Tribunal likewise ruled that the only relevant document it could consider were the plans endorsed and amended on the last occasion viz namely 15 March 2004 which plans were identified as:-

11 The Tribunal in making the ruling indicated that if required by the parties the ruling would be reviewed at the conclusion of the hearing. At the conclusion of the hearing none of the parties sought the Tribunal to review its ruling.

12 In his submission to the Tribunal Mr Tsourounakis outlined the background of the three occasions on which the plans endorsed under the original permit issued on 27 December 2000 were amended on the dates set out above in 2002, 2003 and 2004.

13 He asserted that "based on the architectural style of plans previously submitted to Council any reasonable person would conclude that upon seeing the relevant drawings that this building was to be externally enclosed on its north elevation or in fact some kind of enclosure was to erected at the end of the wall building..."

14 In support of his application Mr Pikusa called as an expert witness Mr Peter Quigley a practicing architect who tendered and spoke to a written submission which included details of the conventions concerning the representation of windows, doors and walls on Architectural Drawings.

15 In his report he stated the following:

"Representation of the Windows on the Endorsed Plans

The conventions described in section 2 have generally been used in preparing the drawings, which were endorsed by the Hepburn Shire Council.

The plan drawing endorsed on the 5th of March 2002 show an external wall, which incorporates windows and some solid areas around the perimeter of the area and along the outer edge of the building. The mullions shown correspond with the framing if the pergola. There is no wall shown on the inside edge of the spa area.

The elevations endorsed on the 5th of March 2002 show the sections of solid wall and the framing of the windows in the same location as is shown on the plan.

On both the plan and the elevation the spas are shown as enclosed by an external wall.

The plans endorsed on the 15th of March 2004 show the external wall re-located to the inside edge of the spas with a plunge pool between. The external edge of the spas and plunge pool is now defined by a low wall, which is drawn as two light parallel lines. The representation is not the same as a solid wall or window as shown in the adjacent lounge.

The wall on the inner side of the spas and plunge pool is drawn as a glass wall represented by three parallel lines, consistent with the convention for representing windows, with a door in the centre. While frames are drawn on either side of the door, the windows are otherwise frameless.

On the elevations the extent of the windows is shown and is consistent with the extent shown on the plans, however the door is shown without frames on either side. The representation is of a frameless door assembly.

In addition the windows are notated as 'Glazing and Doors Behind'.

Clearly the windows and the door were intended to be set back from the face of the building, again consistent with the location shown on the plans.

The drawings do no show a wall or windows on the outside edge of the pools."

The drawings, which have been endorsed by the Hepburn Shire Council, have been prepared using conventions for the depiction of windows and doors, which are consistent with the conventions commonly used by architects to depict windows and doors.

The amended drawings show the external wall of the spa and plunge pool area located on the inside edge of the pools, with a door located in the center of the windows.

The drawings do not show a wall or windows on the external edge of the pools.

The window and doors have been constructed on the inner edge of the spa and pool area and as depicted on the drawings.

In my opinion the building has been constructed in accordance with the endorsed plans. (Tribunal's underlining)

17 After hearing the submissions of both parties and viewing the relevant parts of the amended plans the Tribunal concluded that the opinions expressed by Mr Quigley could be adopted as they accorded with the Tribunal's own reading of the plans and that a declaration should be made to the effect that theplans do not require the permit applicant to provide a glass enclosure on the outside northern wall of the spa and plunge pool area.

18 In accordance with the requirements of the Act, Mr R J Ball as a Legal Practitioner will make the orders sought and makes following findings:

I adopt the expert evidence of Mr Quigley that:

(a) There are no windows on the outer edge of the spas and plunge pool;

(b) The external edge of the spas and plunge pool area is defined by a low wall which is shown on plan TP-09 Rev B (as amended on 15 March 2004) by two light parallel lines which indicate that the wall does not extend up to the height at which the section is taken.

(c) The only glazing in the vicinity of the saps and plunge pool is a glass wall and door located on the inner side of the spas and plunge pool. The location of that glass wall and door is noted on Plan TP-12 Rev B as "glazing and doors beyond";

(d) The glazing extends beyond the bays in which the spa's and plunge pool are located as identified by diagonal lines on each pane on Plan TP-12 Rev B suggesting that it is behind those bays and

(e) There are no window frames identified on the bays in which the spa's and plunge pool are located on Plan TP-12 Rev B. This is to be contrasted with the three windows located on the right of the bays in that plan.

Environment Act 1987

Hepburn SC v Cross [2005] VCAT 2231

At a glance

Court

Decision date

Source

Judgment (43 paragraphs)

Hepburn SC v Cross [2005] VCAT 2231 (21 October 2005)

Parties

Legislation Cited (1)