Victorian Civil and Administrative Tribunal|2000-07-31|Before: Mrs J

Hobsons Bay v Milone [2000] VCAT 1569 (31 July 2000)

Planning List; powers to amend permit; ss.73 and 62(3) Planning and Environment Act 1987; informal approval under condition of permit; declaration under s.149B of the Act.

A. In considering the application made by Fisher Stewart on behalf of the Applicants dated 12 April 2000, the Council misdirected itself in the application of of the by applying a test other than the test set out in the Section.

B. On the evidence before the responsible authority and in the circumstances, it was not open for a responsible authority, acting reasonably, to have formed the view that it was not satisfied that the proposed amendment of Permit no.6357 by relocation of the living areas shown on the endorsed plans to the first floor level in accordance with the revised plans submitted with the application dated 12 April 2000 would cause an increase in detriment to any person.

3. The costs of this Application are reserved. The parties have liberty to apply for costs within 21 days of the date of this Order.

Mr A Finanzio of Council, directly briefed, appeared on behalf of the Applicants.

Mr T Montebello of Maddock Lonie & Chisholm, lawyers, appeared on behalf of the respondent (responsible authority).

1. This is an Application under Section 149B of the Planning and Environment Act 1987 ("the Act") for declarations. It was brought by Mrs J and Mr R Milone as the owners of lot 49, 17 Mill Lane, Williamstown ("the subject land").

2. The Application arises out of an application made by the Applicants to amend plans for a dwelling at the subject land which had been endorsed under Permit no.6357, issued on 25 February 1997.

3. The sole respondent to the Application is the Hobsons Bay City Council ("the Council") as responsible authority under the Hobsons Bay Planning Scheme.

4. The declarations sought relate to decisions of the Council upon the application for amendment of permit, made by the Council's delegate, Mr Russell Yeoman.

5. Notice of the Application was given to other persons, being owners of adjoining properties, referred to in the Tribunal's directions of 5 July 2000. No-one except the Council gave notice of intention to contest the Application by lodging a statement of grounds under Clause 56 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.

6. The subject land has a frontage to Mill Lane of 6.5 metres, a depth of 30.22 metres, and a site area of 196 sq.m. To its rear runs Philip Crescent. The site is not precisely north-south in orientation, but somewhat north-east/south-west; however, for convenience I will refer to north rather than north-east etc.

7. This permit related to a much larger site, being the land formerly described as the "Henry B Smith Site", 113-171 Osborne Street, Williamstown. It permitted, among other things, the use of the site for construction of numerous "attached and detached dwellings (multi unit development), in accordance with the plans endorsed to form part of the permit".

8. The plans endorsed under Permit no.6357 comprise 38 sheets, according to the set forwarded to the Tribunal by the Council under Planning List Practice Note no.2, although I note that the extracts tendered by the parties both refer to 22 sheets. Mr Montebello, who appeared on behalf of the Council, tendered a copy of the permit and the three relevant sheets (including a sketch of the elevation to Mills Lane of lots 41 to 50), and these will be treated as the relevant "endorsed plans".

9. Two of the conditions of permit are relevant. These are:

The use and/or development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

The design guidelines must be given to all purchasers together with copies of the original endorsed plans forming part of this permit.

10. A copy of the Urban Design Guidelines prepared for the Henry B Smith Site by Hassell dated February 1997, being the guidelines to which Condition 16 referred, was tendered by Mr Montebello. As far as Lots 41 to 54 Mill Lane are concerned, the Council has adopted an amendment to the Design Guidelines, which was also tendered by Mr Montebello.

11. The endorsed plans show the subject land as Lot 49. They include a building envelope for a two storey element "with possible attic" at the front of the lot, (south), and a single storey envelope at the rear for a garage, separated by an area on which building was not to occur, which was to form the ground level private open space for the dwelling.

12. Similar envelopes were provided for the lots on either side of the subject land, and to the west for lots 41-45. Lots to the east were differently set out, and had been resubdivided. North of Philip Crescent, the lots are laid out east-west instead of north-south towards the bay.

13. The building envelope on the subject land envisages that terrace style development will be adopted. The endorsed plans include sketches of street elevations of terrace style housing. The dwelling permitted has been designed in broad terms, with annotations on the plan to the effect that the floor layout applicable to the subject land is "House plan type B", suitable for lots 42-44 and 47-49. The lots thus indicated are all oriented north-south and front Mill Lane. Further lot numbers have been deleted from the endorsed plan, with a note to refer to a later plan.

14. The floor layouts shown on the endorsed plans comprise:

* a ground floor, containing living and dining areas, a family room, kitchen and laundry.

* A first floor, containing three bedrooms and the bathrooms, with an en suite bathroom attached to the master bedroom.

* The second or attic floor, which is contained within the roof line except that it has an gable window in the south elevation and a deck at both north and south ends.

15. Two elevations of the frontage are shown. Both have small balconies at the front at first floor level. The man difference between them is what is described as the "2nd floor balcony option". This has full length French windows giving access to a balcony running the width of the building. The other option is a gable without access to a deck, no balustrade, and smaller windows.

16. Mr A Clarke, planning consultant, of the firm of Fisher Stewart, who both prepared the application for amendment and gave evidence for the Applicants, criticised the endorsed plans for errors in either scale or measurement both in the application letter and in his evidence, as the dimensions shown did not correspond with the scale which was shown to be applicable in all drawings.

17. The endorsed plans are also incomplete in terms of design detail, as they only show the elevation to Mills Lane, albeit in two alternative forms. Mr Finanzio suggested that Design Guidelines are concerned with how the buildings look from the street. This is consistent with the endorsed plans only requiring that the street elevation be indicated, in a fairly rough sketch form. I accept that the endorsed plans contemplate further detailed design work for the attic level and roof, and to finalise heights and levels . Roof details are not fully specified. The voids at the attic level at front and back are only depicted on the floor plan. The endorse plans do not specify the pitch, which the guidelines to which the Permit refers originally allowed to be anything between 250 and 400. Whether or not there is an attic level deck (balcony) at the front would depend on which style of façade is chosen, but the deck is shown on the only floor plan for the attic storey.

18. The changes effected by the amendment to the Design Guidelines for Lots 41 to 54 Mill Lane which the Council has adopted include (among other things) limiting the roof pitch to between 250 and 350. Height became "maximum of 2 storeys and exposed attic roof form", in conjunction with an overall height maximum dimension. Developments were required to be "of similar appearance to the elevations shown on the plans endorsed on 24/4/97 that form part of planning permit no.6357".

19. Mr Clarke described the history of these amendments. His evidence stated that Lots 41-50 Mill Lane had been sold off to individual owners, and the Council had received preliminary drawings for dwellings that differed significantly from the endorsed plans. A further matter of concern was the fact that ground level was significantly above footpath level in these lots, a matter which is not relevant in the present case. The resolution to adopt amended Guidelines was passed on 17 August 1999. No permits - including the parent permit no. 6357 - were amended to incorporate reference to them; nor were they incorporated into the Planning Scheme.

20. The Design Guidelines in both the original and amended forms make reference to compliance with the Good Design Guide. They also place their emphasis on appearance from the street both as regards frontage and in the case of end walls on corner lots.

21. The Design Guidelines state, in the Introduction, that "no further permit is required to use and develop the lots for a dwelling provided selection is made from the approved plans". The Introduction goes on to state:

"All detailed plans for dwellings must be approved by the City of Hobsons Bay. The City of Hobsons Bay will have regard to the Good Design Guide for Medium Density Housing 1995, the relevant planning scheme objectives, the Urban Design Guidelines, Building Envelope Plan and approved plans for the site in deciding whether to approve of the application." [emphasis added]

22. The nature of the application required to be submitted is not spelled out; but given that the subject land was at the time within an Urban Conservation Area (to which the Design Guidelines also refer), so that all external building work required a permit, and considering the nature of the matters that were to be taken into account, it would appear that a fresh permit application was contemplated at least in a case where an owner wished to depart from the external wall and roof details derived from the floor plans and the alternative forms of elevations sketched in the endorsed plans. If changes that did not attract a permit requirement under the Urban Conservation Area controls were sought, the only other context within which such matters would be relevant would be informal approval under Condition 2 of the permit, where there are no statutory criteria to be considered.

23. Protection of the amenity of both neighbouring dwellings and occupants of dwellings for the Mills Lane attached dwellings, if application was made to depart from the approved form of design, was provided for by application of the Good Design Guide and Planning Scheme objectives, the building envelopes, and specification of a maximum number of storeys. The reference to "objectives" has been superseded by the VPP format Planning Scheme, which applies current State and local policy to all decisions on permits and approvals required under the Planning Scheme, and applies the Good Design Guide for Medium-Density Housing Revision No 2, April 1998 to decisions on dwellings of this nature.

24. Mill Lane, which is 5.5 metres wide, separates the subject land and its neighbours from the Sadler Reserve, and to the south, The Esplanade separates the reserve from the foreshore. The subject land therefore has access interrupted only by the width of Mill Lane to open space which has been well developed as a recreation reserve, with seating and a children's play area, and to the Bay.

25. Mr Clarke stated that in his opinion, the view from the subject land was its best asset. He regarded it as a poor design response to the site context that the design approved in the endorsed plans did not make use of the view by locating main living areas above the ground floor level.

26. There is a considerable amount of building around the subject land. The site to the west of it, lot 48, is still vacant, as is the subject land itself. Construction work has commenced to the west. Photographs tendered on behalf of the Applicants showed substantial terrace houses, of two and three storeys, to the north-west and further east. To the north east of the subject land is a substantial building described on the plans as the Italian Social Club.

27. Although these photographs are recent, they are an indication of the general nature of development around the subject land at the relevant time, and of its relationship to the reserve and foreshore. Details of new development may have changed somewhat between the date the Council's delegate considered the application and the present. The present state of the subject land and its immediate surrounds is not relevant to the consideration of this Application.

28. The Applicants wished to vary their building from the pattern shown on the endorsed plans. They first made a formal application for permit to do so, based on plans which are not identical with the plans related to this Application. But without any prior notice to them as owners of the subject land, Amendment L21 to the Planning Scheme affecting the position was approved by the Minister for Planning and gazetted. The relevant part of the Amendment was Clause 159-6.2:

"A permit may not be granted to construct a building or to construct or carry out works exceeding a height of two storeys."

29. The building height limit is now contained in Schedule 4 to the Design and Development Overlay: Clause 43.02 of the Planning Scheme.

30. The Council advised the Applicants by a letter dated 24 December 1999, signed by Ms Rita Miletic, that as a result of the Amendment, their application for a three storey dwelling was now prohibited under an interim height control prescribing a maximum height of two storeys. The letter, however, acknowledged that the subject land had a valid permit allowing development of a three storey dwelling, and stated:

"Pursuant to Section 72 of the Planning and Environment Act 1987 a request may be made to Council to amend this permit.

Council may amend the permit is it is satisfied that the tests listed in Section 73 of the Planning and Environment Act 1987 are satisfied. There must be no increase in detriment to any person."

31. Mr Montebello submitted that this was gratuitous advice, rather than a response relevant to any application then before the Council. I accept that this was so. I also accept that it represented an sufficiently accurate summary of the parts of Sections 72 and 73 which were relevant in the circumstances, although it was not a word for word quotation.

32. The letter went on to set out reasons why the development proposed in the permit application "could not be considered as a minor amendment to the original permit".

33. After further efforts which it is not necessary to describe, the Applicants instructed Mr Clarke to make an application for them.

34. Mr Clarke submitted a detailed application by letter dated 12 April 2000. He sought an amendment of permit no.6357 "pursuant to Sections 62(3) and/or 72 and 73 of the Planning and Environment Act 1987 and/or pursuant to Condition 2 of the permit". I construe this as one application, made on three alternative grounds. The Council's treatment of the application is the subject of this Application.

35. The application letter set out a comprehensive description of the background to the granting of the permit, the Applicants' purchase of the subject land, descriptions of what the endorsed plans allowed and what the plans submitted with the application would allow, a description of the relevant tests to be applied to each of the five paragraphs of Section 73, an "analysis of detriment", and Mr Clarke's opinion of the revised proposal compared to the proposal shown on the endorsed plans.

36. The letter does not state that a new set of plans was enclosed; but it is common ground that the plans referred to as "the revised proposal" in the application letter were the plans a set of which were tendered, drawn by Aesthetica Pty Ltd, drawings M-01 to 03, dated March 2000, Issue A, revised 24/3/00.

37. The letter also enclosed copies of letters from adjoining owners, expressing their support for the proposal as "a better design for Lot 49 Mill Lane". The letters were in a typed standard form, which also stated that "the proposal would not cause any increase in detriment to me than that approved under Planning Permit No.6357".

38. Section 72 of the Act states :

"The owner of land, or a person with the consent of the owner, may ask the responsible authority in writing to amend a permit which applies to the land".

39. Section 73 sets out five matters on which the responsible authority must be satisfied before exercising this power. It is common ground that Section 73(c) is the only relevant paragraph. There is no difficulty with the other considerations. Omitting the irrelevant parts, the Section provides:

"The responsible authority may amend the permit if it is satisfied that the amendment -

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

40. Section 62(3) provides:

"The responsible authority may approve an amendment to any plans, drawings or other documents approved under a permit if the amendments are consistent with the planning scheme and the permit."

41. Amendment under Condition 2 relies on an "informal approval" arising from the terms of the permit, not derived from the Act.

42. These were described in some detail in the application letter. Mr Clarke added very little about the nature of the amendments in his evidence; and that in answer to questions from Mr Montebello or the Tribunal. This limitation arose from the nature of the Application, and the recognition by all parties that the Tribunal is not called on to review the Council's decision on the planning merits.

43. The principal changes were the proposed relocation of the main living areas to the first floor, the relocation of the bedrooms and main bathroom to the ground floor, and the relocation of the master bedroom and en suite bathroom to the attic floor, along with a study/studio (being was one of the options for the use of this space in the endorsed plan).

44. The length and area of the attic floor were also extended.

45. Mr Clarke's general conclusions at the end of the application letter in relation to the proposed amendments were that they would not lead to any increase in detriment to any person, and against most measures would lead to a marginal improvement to the amenity of neighbours, and a significant improvement to the amenity enjoyed by the occupants of the dwelling. He gave evidence to the same effect. Mr Clarke is a qualified and experienced planning consultant, and was the only witness called by either party.

46. Turning to the particulars of the proposed amendments, reflecting the prominence given to the streetscape elements in the Design Guidelines, the application detailed the elements which would effect the street elevation first.

47. Building height is calculated to have been decreased, subject to a doubt about the use of the wrong scale in the endorsed plans. Setback from frontage to building remains the same. Mr Clarke drew the obvious conclusion that no increase in detriment occurs through these elements.

48. The porch feature over the front door which appears in the "balcony" version of the endorsed elevations is eliminated; but as the balcony version relates to the attic level, and the front door is shown both with or without a porch, I take that to be within the scope of the approved alternatives.

49. The dimensions of the balcony at the first floor level would remain "of similar dimensions". The application did not specify that its location was moved so that it was more central to the façade.

50. However, in neither endorsed version is the first floor window behind the balcony as wide as it is in the amendment. The increased width means that the two side windows are eliminated. In neither endorsed version is the front door shown to be accessed by steps, but in the amendment, steps are required. The front door is also shown set back from the west side, instead of being at the western corner; and it has a glass panel down the east side, which does not appear on the endorsed plans. The larger window at ground floor level is also moved east, and the smaller eastern window eliminated. These changes alter the balance of the façade, and affect the appearance of the dwelling; but there is no evidence that the changes would cause detriment to any person. Although they were not detailed in the letter of application, having been referred to in general terms as "a similar degree of fenestration", they are plain to see on the plans.

51. There may be grounds for criticism of these changes in terms of the extent of variation from the endorsed elevations amounting to a change in the style of the dwelling; but that is not the test for the purpose of Section 73. It was not alleged that these changes caused any increase in detriment; and no objection to these changes was taken by the Council.

52. The proposed changes affected the balconies, both as regards dimensions and in the various uses of the rooms from which they are accessed.

53. Thus at first floor level, the balcony as approved faced the bay view; but it was reached from the master bedroom. The proposed amendment has the balcony accessed from the living area, which is part of an open plan floor layout flowing into the family and meals area. As there were no side wall dimensions specified for the balcony as shown on the endorsed plan, it could not be said that frequency of overlooking was likely to be affected by the change; and in any event, any possible overlooking would be to the front balconies and small front garden areas of adjacent attached dwellings, all of which are required to have balcony and fence forms that allow them to be seen through from the street and public reserve. Mr Clarke therefore concluded that there was no detriment from the change; and was of the opinion that there would be a vastly improved amenity in terms of open space provision and bay views for the dwelling occupants.

54. Mr Clarke's comment about open space assumes that the south facing first floor balcony provides usable open space. While this is so, it is not private open space.

55. Mr Clarke also gave examples of adoption of a similar layout in other dwellings in other parts of the bay foreshore. Taking advantage of bay views from living areas as a design principle seems almost trite. The only argument against this change is the Good Design Guide Element 9, which deals with private open space for dwellings.

56. The objectives of this Element include provision of secluded private open spaces which receive sunlight and are well integrated with living areas.

57. Criterion E9.C1 includes having convenient access from a main living area.

58. Technique T1 provides for three alternatives, one of which is that where the open space is provided at ground floor level, it should total at least 40m2, have one part at the side or rear with an area of 25m2 and a minimum width of 3 metres which has convenient access from a living room. A further alternative is a balcony with an area of 8m2 and a minimum width of 1.6 metres which has convenient access to a living room.

59. The ground level space between the dwelling and the garage is available for secluded private open space. Mr Clarke scaled the existing area at 6.5 x 5.12 metres; and the proposed amendment would increase this slightly to 6.5 x 6.22 metres. In both cases it meets E9.T1 in area.

60. The approved floor layout shows the secluded private open space at the rear as being accessed from the family room. The front balcony at first floor level fails to meet the width of 1.6 metres on both the endorsed plan and the proposed amendment. While that does not matter in the case of the endorsed plan, because the Criterion and Technique are met at ground level, in the case of the proposed amendment, they are not met.

61. The endorsed plan has a balcony at the rear at first floor level, accessed from two bedrooms. This runs the entire width of the building, but its width is not dimensioned. It scales at less than 1.6m. Its elimination therefore does not change the answer to the question of whether full compliance with E9.T1 is achieved. It did, however, invite consideration as to whether the endorsed plans allowed for overlooking of adjoining back gardens on the oblique view, as the sides of the balcony where not shown as being extensions of the brick side walls of the dwelling, and there was no indication on the endorsed plan of the height or materials of the balustrade.

62. Mr Clarke stated that when the access to the approved balcony was from bedrooms, there was "some limited potential detriment to neighbours from overlooking". He recognised that there is an increased potential for overlooking of neighbours from upper level living room windows and balconies. In the case of the north-facing widows and balcony at first floor level, when conversion to living areas was proposed, the potential for overlooking was eliminated by the deletion of the north facing balcony and the incorporation of glass blocks into the two windows, save for a clear panel at the top which is above the level at which overlooking would be an issue, and could be left openable to provide for better air circulation.

63. In Mr Clarke's opinion, this constituted no increase in detriment to the neighbours, and as far as the occupants of the subject land were concerned, the loss of the northern balcony and clear glass windows was more than offset by the bay views that would be available under the amendment.

64. Failure to meet the techniques of the Good Design Guide as regards a balcony width, or access to the ground level secluded open space from a main living area does not necessarily equate with a diminution of the amenity of the occupants of the dwelling. The Good Design Guide standards promote housing choice for different types of family. Although I can see an advantage, which was discussed at the hearing, of both promoting the accessibility of the ground level open space and having children's bedrooms above the level containing the main living areas, kitchen and both front and back doors in a three-level home in the case of a family with small children, the advantages may well be the other way in different family circumstances. It has not been alleged by anyone that placing the children's rooms on the ground floor would increase detriment to any person.

65. At the attic level, the endorsed plans provided decks at both north and south ends, both for the full width of the building. The two Mill Lane alternative elevations allowed one option in which the windows shown on the floor plan were full length and gave access to the balcony. There was of course no elevation for the north end; but as there is little point in having a deck unless it is turned into a balcony and you can walk out onto it, access from the windows shown in the north wall can be implied. The attic space was shown as one undivided space designated for use as "study/store/guest/studio/bedroom".

66. The proposed amendment slightly extends the length of the attic room, at the expense of the width of the northern balcony, and with a slight reduction in the size of the voids created by set back sections at the four corners of the building. The northern balcony is therefore narrower (the width is reduced to one metre), and possibly less usable, which in turn lessens the likelihood of overlooking. Mr Clarke considered that the proposed dimensions of this balcony made it more likely that people would put chairs out there and sit, rather than walk up and down to the edges where views over neighbouring property would be possible. Mr Clarke' evidence was that there would be no increase in detriment from the alteration to the northern balcony. The endorsed plan showed the balcony 2.5 metres wide, and views would have been possible both outward and straight down. If anything, this opportunity is reduced by the amendment. The nature of the use of the room giving onto it has not changed, being the "study/studio" elements of the combination shown on the endorsed plans.

67. Mr Clarke did not agree when asked by Mr Montebello that the changes to the attic level brought a high level of activity to that level. He considered that the uses shown on the endorsed plans and the proposed uses were almost identical. The north facing windows behind the attic level balcony are wider in the amendment than on the endorsed plan, but the balcony deck limits the views from inside the room, which in any event would have been the situation under the endorsed plans.

68. The changes to the walls involved in extending the attic floor area are an increase to 13.4 metres as opposed to 12.8 metres in the length of wall built to the boundary. Mr Clarke's evidence was that it was impossible to tell whether the height of the walls was affected, because of the absence of detail as to side wall heights on the endorsed plans. However, he was confident that the increase in floor area would be imperceptible. As in the endorsed plans, the void areas (which are decreased in size in the amendment) are contained within the roof space.

69. Although there is an increase in wall length built to boundary at the attic level in the amendment, Mr Clarke described the changes to the ground and first floor levels as decreasing the length of the walls on the boundary. The endorsed plans show the length of wall built to the boundary as being 15 metres on both east and west sides, at both levels. At ground floor level, the amendment proposed to reduce the length on the boundary of the eastern wall to 13.4 metres. At first floor level, on the west side the wall would be reduced to 13.0 or 13.4, and on the eastern side to 13.4 metres. Mr Clarke was of the opinion that this was a minor improvement in amenity to the occupants of both adjoining lots.

70. The extent of the decrease in length of wall built to boundary at first floor level is therefore more than the amount of the increase in the length of wall built to boundary at attic level. The only evidence of the impact of these changes is that of Mr Clarke. I do not consider that there is any evidence to indicate that the changes to the boundary walls constitute an increase in detriment to any person.

71. Overall, the effect of Mr Clarke's evidence is that the proposed amendments do not increase the detriment to any person other than the occupants of the dwelling. In the case of the occupants of the dwelling, he considered whether there was any detriment to them from the changes, but was of the opinion that any such detriments were outweighed by the benefits of having bay views from windows and balconies at the upper floors.

72. I consider that the area of doubt about this analysis lies in whether the impact of proposed amendments on the persons seeking the amendment is relevant to the consideration of detriment under Section 73. But as Mr Clarke's approach is conservative, in the sense that detriment is considered for all possible persons who may be affected, it is not necessary to determine that question.

73. Although at the beginning the application letter refers to the three amendment powers under which application is made, only Section 73 of the Act is set out and discussed in the application. Neither Section 62(3) nor Condition 2 is referred to at all, other than where it is named in the "introduction". No relevant tests are proposed for use of these powers. No alternative interpretation of the data offered, to suit the nature of the alternative powers, is included. The whole substance of the application is framed in terms of "detriment" and Section 73.

74. The only evidence of the Council's decision on the three alternative bases proposed is contained in Mr Yeoman's letter addressed to Mr Clarke as the Applicants' consultant, dated 18 April 2000. This is headed "Amended Plans - Planning Permit no.6357" and gives the address of the subject land. It states:

"I refer to your application received on the 12 April 2000 to amend the above planning permit pursuant to Sections 62(3) and/or 72 & 73 of the Planning and Environment Act 1987.

I wish to advise that Council cannot consider your proposal as an amendment to the original planning permit. Council is not satisfied that the relocation of the living areas to the first floor is a minor amendment and will not cause material detriment to any persons."

75. The letter then continues on another subject. It also refers to Ms Miletic as the person to contact with further enquiries.

Council's response to application under Section 62(3) and Condition 2

76. Like the application letter, the response recites the fact that the application included Section 62(3), but then ignores it. It is also noted that no reference is made to the application for approval under Condition 2. There are three elements in the response that show it responded in substance only to Section 73.

77. The first is that it refers to "amending the permit". The endorsed plans form part of the permit, but the wording of Section 62(3) calls for consideration of approval of a new plan under the permit, not amendment of the permit as such. Under Condition 2, it is specifically what has been shown on the endorsed plans that would be altered. If the Council had turned its mind to the powers available under Section 62(3) and Condition 2, it would have been dealing only with the plans. Both powers are limited, to "plans" or "endorsed plans" respectively. In my view the responsible authority would have referred to them in terms that demonstrated that these were the powers in question if it had considered them at all.

78. Second, there is a reference to "minor amendment". Although, as the parties agree, this is not the true test under Section 73(c), it is a reference to the heading of Section 72 of the Act. The wording of the reasons given for the decision does not respond to the powers in Section 62(3) and Condition 2.

79. Third, there is the reference to Council not being satisfied that a particular element of the amendment "will not cause material detriment to any persons". The word "material" is not found in Section 73(c), and is an incorrect limitation on the scope of the test to be applied under that provision. But the expression is close enough to Section 73(c) to show that it is that provision which the writer intended to refer to. It certainly has nothing to do with the relevant tests under Section 62(3). If elements of an appropriate test under Condition 2 which included a consideration of detriment were intended to be spelled out, it seems to me there would have been a number of other matters that would also have had to be referred to.

80. But it is possible that the Council intended to apply the test appropriate to Section 73(c) to each power invoked by the application. In the absence of any distinction in the application letter between the three powers invoked, this was not inappropriate, so long as the test applied under Section 73(c) was right.

81. Mr Montebello referred to Cade v City of South Yarra [1998] VCAT 304; (1998) 22 AATR 57 (at para 149), where the Tribunal expressed doubt as to whether what amounted to an amendment to endorsed plans could be approved under Section 62(3) where it would not qualify under Section 73. I share that doubt. A similar doubt (to say the least) would have to apply to the use of Condition 2, to which I will refer below. I conclude that the absence of express responses to the references in the application to the two alternative powers is justified. Whether or not the Council intended to apply the test in Section 73(c) as indicated in Cade's case, it acted rightly in not applying Section 62(3) or Condition 2 in the circumstances independently of Section 73.

82. Mr Montebello stated that the Council has previously allowed a number of amendments to the endorsed plans. These included amendments to plans for lots in Mill Lane, and at least one this year, i.e. since Amendment L21 was approved. Mr Clarke also referred to this amendment. The amendments Mr Montebello referred to appeared to have taken place under Section 62(3) of the Act.

83. In considering the references in the application to Section 62(3) and Condition 2 of the permit, and Council's response, I have looked at the material which was available with the application. Mr Clarke did not add any opinions at the hearing as to consistency of the amendments with the permit or the Planning Scheme, or the availability of an approval under Condition 2. His evidence pursued the application under Section 73 and the issue of detriment.

84. I agree with Mr Montebello that the limits of Section 62(3) are not clear. If indeed the only relevant test under Section 62(3) is consistency of the proposed plan with the permit and the Planning Scheme, the permit in question, no.6357, expressly states that the endorsed plans form part of the permit. The inconsistencies with the endorsed plans to which I have referred above mean that the amendment would have failed the consistency test.

85. However, I also note that since Amendment L21, granting a permit for construction of a building or works exceeding a height of two storeys is forbidden. It seems to me that it would not be consistent with the Planning Scheme to approve a new plan that extended the building work to be constructed above the second storey. The attic floor is proposed to be extended in area, and its walls in length. That would be a granting of a new permission for part of a building not previously permitted under the endorsed plans.

86. Even if the Council failed to exercise a power which it had been requested to exercise in the case of Section 62(3), I do not think that there is any adverse consequence from such a failure. I do not consider that the Council could have effectively amended the permit by approving the amended plans submitted by the Applicants using this power.

87. In relation to Condition 2, I agree with the submission put by Mr Montebello. An "informal consent" power to approve alterations to the use and development as shown on the endorsed plan cannot be used as a substitute for a permit if one is required: Abacus Design v City of Yarra & Freeman (Appeal no.1996/4442) and the cases referred to in that case.

88. In the case of the subject land, the site area is less than 300 m2, so that a permit is required for development of a dwelling in the relevant zone. In addition, the Design and Development Overlay and Heritage Overlay provisions of the Planning Scheme, both of which apply to the subject land, and which were appended to Mr Clarke's statement, both require a permit for construction of a building, which by definition includes a part of a building. The amendments sought make changes to the endorsed plans that are not confined to the interior of the approved building (where no permit is required for the changes). They extend to the actual approved building structure. A permit is required for these changes, unless Section 73 or some other statutory power is available in the circumstances.

89. It again follows that if the Council indeed failed to consider an application in fact made under Condition 2, no harm has resulted. The amendments sought exceed what could have been allowed under a condition on that nature.

Consideration under Section 149B

90. This leaves the amendment power in Section 73(c) for consideration.

91. Under the Council's version of the test in Section 73(c), the only aspect of the proposed amendment to which exception is taken is "the relocation of the living areas to the first floor". The application letter describes possible detriments in a number of other respects, as set out above. But only those associated with the relocation of the living areas were treated by the Council as the ground for excluding the application of Section 73.

92. The tests to be applied by the Tribunal to an applicant seeking declarations were not disputed. In particular, both parties agreed that the Application was not a review of the merits of the Council's decision. Mr Montebello summarised the grounds on which the exercise of a discretion by the Council could be successfully challenged as:

* Council has not acted bona fide or has acted for an ulterior purpose; or

* Council has failed to take into account relevant considerations or has taken irrelevant considerations into account; or

* In relation to the decision that it did make, the decision was not reasonably open to it.

93. There has not been any suggestion of bad faith or ulterior purpose. In relation to the other criteria, their appropriateness is supported by the judgment of Ashley J in Kantor v Murrindindi (1997) 18 AATR 285 at 308-9.

94. That case also concerned in part the exercise of the amendment power under Section 73(c) of the Act. His Honour dealt briefly with that aspect (at p.320), adopting as the test of invalidity that the decision to amend was one that "no responsible authority acting reasonably could have made".

95. The test adopted for "reasonableness" is the "Wednesbury" test: see Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305 per Gibbs J at 328:

"Even if the council has not erred in this way an opinion will nevertheless not be valid if it is so unreasonable that no reasonable council could have formed it (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223, at pp 228-229 and 233-234."

96. Mr Clarke's statement tendered at the hearing largely repeated the text of the application letter, with additions of background material such as the relevant provisions of the Planning Scheme. There is no evidence to show that any opinion of Mr Clarke's other than those expressed in the application letter was available to the Council at the time it made its decision. In relation to Mr Clarke's evidence about prior discussions with Council officers, Section 72 requires that the application must be in writing; so that any such evidence could only be argued to have a bearing of the application on the other grounds. As it appears to have been centred on "detriment", in my view it did not assist. I have confined my consideration of the reasonableness of the Council's decision under Section 73(c) to the material in the application letter, as far as Mr Clarke's input in concerned.

97. The argument that the Council applied the wrong test to this application depends on the inclusion of the word "minor" to qualify "amendment", and the reference to "material detriment".

98. It is common ground that the reference to "minor amendment" is not the accurate test, and is irrelevant to Section 73(c): see for instance Zariah Beaufonte v City of Yarra (1995) 17 AATR 233 (a decision of O'Bryan J at 235); Cade's case (at para 129). The expression "minor amendment" is derived from the title to Section 72, which is not part of the Section. Kantor's case (at 319) recites with implied approval the contention that the word "minor" forms no part of the verbiage of Section 72, and where found in Section 73(d) refers only to the "use" of land.

99. Mr Montebello submitted that although the delegate used the wrong words in the decision, the Council was well aware of the true test, which is well known. Mr Finanzio argued that the presumption of regularity cannot stretch as far as showing that the Council understood the law, when the very matter at issue is whether it applied the law correctly.

100. I accept that the Council is entitled to be guided through the knowledge, information, opinion, experience and expertise of its officers: Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305, per Gibbs J, quoted in Shelton v City of Stonnington (1995) 15 AATR 141. However, despite the accurate summary of the test in Section 73(c) that was contained in Council's letter of 24 December 1999 written by Ms Miletic, I do not consider that it has been shown that Council's delegate, when he made the decision, applied the same test as Ms Miletic had indicated.

101. I do not accept that Ms Miletic's understanding of the correct test could overcome the effect of the express words of the actual decision of the Council's delegate, in the letter that forms the only evidence of what Council's decision was. Ms Miletic had been involved in dealing with the Applicants' several applications, but Mr Montebello made it clear that it was Mr Yeoman who had the delegated power, and whose decision was the relevant decision.

102. Council's delegate expressed his decision in this application as:

"Council is not satisfied that the relocation of the living areas to the first floor is a minor amendment".

103. This is expressed as the first leg of a double test. The second leg is then given:

"... and will not cause material detriment to any persons".

104. In my view, this turns the test set out in Section 73(c) from a requirement that Council be satisfied as to one thing into a requirement that the Council be satisfied as to two things. The Act requires that Council be satisfied only that the amendment "will not cause an increase in detriment to any person".

105. Further, the formulation "... and will not cause material detriment to any persons" subverts the actual test not only as to inclusion of the "material" element, which as Mr Montebello argues, acts in favour of the Applicants; but overlooks the recognition that there may be existing detriment in the wording "will not cause an increase in detriment". The test for which Mr Montebello contended, that "the officer knew that Council had to be satisfied that there would be no detriment to any person" is also incorrect.

106. The recognition that the existing permit may or does result in some detriment may explain the stringency of the test of "detriment", which is elsewhere in the Act qualified in such expressions as "material detriment". It also reflects, for instance, the understanding that an existing permit was issued on the basis of balancing numerous factors, rather than meeting such a stringent test as "no detriment". The scheme of the legislation appears to be that if an increase in detriment is caused by a proposed amendment, one of the powers that includes a formal application, consideration of whether notice should be given to affected parties, and third party rights should be utilised. The purpose of the list of criteria in Section 73 is to limit the circumstances in which an amendment may be made without notice to any other person: Cade's case (at para 137); Davies v City of Stonnington & Hueston (Application 1998/27515).

107. In my view, the fact that the test is satisfaction that an amendment will not cause an increase in detriment is what justified the Tribunal in embarking on balancing of pros and cons as described in Cade's case. If an amendment causes advantages and detriments to the same person, they can be balanced against each other, and if they balance out, there is no increase in detriment.

108. But if an amendment would cause an increase in detriment to one person (other than a trifling one that can be disregarded under the "de minimis" rule), then even if benefits to a different person were thought to be significant, Section 73(c) would not be satisfied. The benefit to one person cannot be used to outweigh a detriment to a different persons: see paras 124-137 of Cade's case, explaining the effect of Shelton v City of Stonnington.

109. Mr Clarke's balancing of benefits to the Applicants against any possible detriment to others would therefore not assist his clients under Section 73(c). However, as there is nothing to indicate that his opinions on this form of "balancing" were taken up by the Council, they have not vitiated the decision.

110. The Tribunal in Cade's case was also of the view that every separate amendment had to be separately considered, even if a series of amendments were included in the same application: see p.90, paras 137-138. It pointed out that Section 73 requires each amendment to be considered, and if an amendment made at the same time as others was to be allowed to be balanced against the other amendments, then whether the particular amendment could be accepted might depend not on its own merits, but whether it was applied for in isolation or as one of several at the same time.

111. For this reason, I have gone through the changes to the endorsed plans that were proposed as the "amendment" in detail. However, I consider that it was allowable to take the relocation of the living areas to the ground floor and all the changes that followed from that, such as the deletion of the first floor rear balcony and the use of glass blocks in the northern windows, to be a single amendment. The changes to the structure of the attic level, however, do not in my view flow directly from the relocation of the living areas so as to be the same amendment, and should be assessed separately. The changes to the door and windows in the street elevation, in my view, are not confined to being a direct consequence of the relocation of the living areas, but arose from a wish to make a better use of space on both floors than the endorsed floor plans allowed, and also as a design choice to have a large window rather than several smaller windows at first floor level. If these changes had been considered at all, they should have been considered separately.

112. I find that the wrong test has been applied to the Applicants' application, and the Council's conclusion was not reasonably open to it.

113. Mr Montebello submitted that the delegate acted correctly because on the facts, rightly or wrongly, he was not satisfied that there would be no detriment to any person. Apart from the fact that this was the wrong test, it overlooks the availability of the test of "reasonableness". It is not just the decision "whether to amend" that must be reasonable. First, the delegate had to decide whether the power to amend was available to him. This entailed a decision as to whether he was satisfied that the amendment would not cause an increase in detriment: the precondition to the exercise of the power. If his decision as to whether or not he was satisfied as required by the Section was one that was not reasonably open to him, the exercise of discretion under the Section has miscarried and the decision is invalid.

114. Mr Yeoman did not give evidence as to how he reached the conclusion that he expressed in the letter of 18 April 2000. The material that he had available to him was the application letter (which expressed Mr Clarke's opinions on the detriment issue) and revised plans, the permit and endorsed plans, the Planning Scheme, the Design Guidelines, and the letters of consent from the neighbours. In the absence of evidence from Mr Yeoman, I do not consider that I can assume that he had relevant local knowledge of the area.

115. In terms of the application of the correct test, on the evidence available to the Council, Mr Clarke acknowledged in the application letter that there was a risk of an increased potential overlooking of neighbours from upper level living room windows and balconies. However, he went on to explain how that risk had been dealt with in the application, and to compare the existing risk of overlooking under the endorsed plans. I accept that the proposed means for eliminating any increased risk of overlooking at first floor level would be effective; there would be no increase in detriment to any person on that ground. Further, I do not consider that the amendment as shown on the revised plans left it reasonably open to the Council to form a different view on that issue. There is no evidence to the contrary.

116. Mr Montebello raised issues of possible detriment at attic floor level by way of argument. He argued that the "significant alteration to the attic space was in the mind of the officer". However, on the information available, there is no reason to suppose that Mr Yeoman was anything other than satisfied with the attic floor. His only reason for rejection of the amendment related to the relocation of living areas to the first floor. That affected the use of the ground and first floor, not the attic floor.

117. Mr Clarke pointed out that the potential for overlooking from the attic level was identical to what had been approved. He in fact strengthened his evidence on the point at the hearing by saying the upper level balcony, being reduced in width, would be less usable, lessening the likelihood of overlooking. There is no evidence to contradict Mr Clarke's evidence that the attic floor changes will not increase potential for overlooking or otherwise result in an increase in detriment to any person. I do not consider that the Council did form the view that the attic floor changes could not have been approved under Section 73(c); but in any event, on the evidence, I do not consider that such a decision would have been reasonably open to it.

118. Mr Finanzio was understandably anxious to seek to obtain a final conclusion for his clients through this Application. However, as Mr Montebello pointed out, this is not an application for mandamus. Of the eight declarations sought in the Application, there is considerable duplication. The catch-all declaration which Mr Fiinanzio urged me to make was F -

"That on the evidence before the responsible authority and in the circumstances, the only conclusion available to the responsible authority was that the proposed amendments could not cause an increase in detriment to any persons."

119. I do not consider that I can go so far beyond the decision that the Council actually did make as to declare that the only conclusion available to it was the one contended for. The sole ground on which the Council was not satisfied was the relocation of the living areas to the first floor level. If the test that was applied, and the issue of whether a finding on the correct test would have been reasonably open, are dealt with by declarations, there would be no further bar in the way of the Council approving the amendments.

120. I have, however, gone beyond what was strictly necessary in reviewing the evidence on the other amendments proposed. These comments may provide some guidance when the Council comes to reconsider the application for amendment, although they will not be binding.

121. I am prepared to make a modified version of Declaration A: that the Council misdirected itself in the application of Sections 72 and 73 of the Act, although I will limit the declaration to Section 73(c), which, it was agreed, was the only relevant aspect of these Sections.

122. I consider that Declarations B and C are in the nature of particulars of the way in which the Council misdirected itself, and are unnecessary.

123. In Declaration D, the Applicants seek to vitiate the decision on the ground that the Council failed to take the consents of adjoining owners into account. There is no evidence to show that the Council did not take them into account, as they were part of the application. But such consents could not properly be regarded as conclusive. They were no substitute for the formation of the required opinion under Section 73(c). I will not make this declaration.

"That on the evidence before the responsible authority and in the circumstances, it was not open for a responsible authority, acting reasonably, to have formed the view that there would be an increase in detriment to any person arising from the proposed amendments to the endorsed plans."

125. As with F, I consider that the only relevant decision made by the Council was limited to relocation of the living areas to the first floor level, and that I should not make a declaration which exceeds the scope of that decision. The formulation of this declaration is also reversed, as discussed at the hearing, in that the relevant provision requires that the responsible authority be satisfied that there would not be an increase in detriment. It would also be preferable to refer to the proposed amendment to the permit, rather than specifically to the plans, as the power in question is Section 73.

126. Declarations G and H relate to Section 62(3) and Condition 2. As I do not consider that either power is available or adequate for the amendments sought on the revised plans, I will not make these declarations.

127. This Application is allowed in part. I will make two of the declarations in the modified form referred to.

128. I will reserve the costs of this Application, and provide that applications for costs should be made within a limited time.

129. While I was writing this decision, I received a personally addressed letter which appears to be from one of the Applicants, as the sender was shown as "Milone". In order to ensure that the hearing of this Application was not vitiated, after I became aware that the envelope contained a hand-written card and message, I did not read it. I will not do so until after this decision has been issued.

Environment Act 1987

Civil and Administrative Tribunal Act 1998

Hobsons Bay v Milone [2000] VCAT 1569

At a glance

Court

Decision date

Before

Source

Judgment (160 paragraphs)

Hobsons Bay v Milone [2000] VCAT 1569 (31 July 2000)

Parties

Legislation Cited (2)

Cases Cited (1)