Section 124 Victorian Civil and Administrative Tribunal Act 1998

[2004] VCAT 1514

This application for review seeking approval of plans pursuant to Section 149 of the Planning and Environment Act 1987 is refused and no such approval is granted.

Ms. Tania Curwood appeared with Ms. Fiona Moss for the responsible authority.

Mr. Colin Bowden, town planning consultant, appeared for the applicant company Interbuild Pty Ltd.

Application under s.149 of the Planning and Environment Act 1987 (PE Act) for a review of the refusal of the Responsible Authority to grant its consent to amended approved plans.

Residential 1 Zone under the Whitehorse Planning Scheme

1 This case concerns an application for the approval of the responsible authority in relation to amendments to plans. On 17 February 2004 the tribunal gave a determination in the case of Interbuild Pty Ltd v. Whitehorse City Council, Meredith and others (VCAT Reference No. P2293/2003).

2 The case concerned an elongated parcel of land constituted by two allotments that back onto each other. The original proposal was for the construction of five dwellings on the parcel. The decision of the Tribunal required the deletion of dwelling 2.

3 The Tribunal did not require the submission of modified plans for its approval prior to granting a permit. It sought to achieve the result by imposing a condition.

The construction of three, two-storey dwellings and one single-storey dwelling in accordance with the endorsed plans.

5 Of course, there were no endorsed plans at that stage. I assume this meant the endorsed plans to be subsequently approved and endorsed by the responsible authority. The original proposal had been for three double storey dwellings and two single storey dwellings with two of the double storey dwellings being detached and the other three (one double storey and two single storey) being semi-detached.

6 The first condition of the permit required the submission of modified plans for approval before commencement of the development or removal of trees or vegetation. It provided that the plans must be drawn to scale with dimensions generally in accordance with the plans submitted with the application but modified in certain specified ways. I note that the requirement was not that the plans be in accordance with the application plans, subject to certain modifications, but only "generally in accordance" with such plans.

7 The important modification, from the point of view of this case, was the first which reads:

(a) The deletion of Dwelling 2 and reconfiguration of the remaining dwellings to increase the frontage setback of Dwelling 1 to a minimum of 7.5m and provide a greater open space and setbacks for the remaining dwellings.

8 This modification specified the "reconfiguration" of the remaining four dwellings, rather than their redesign. Furthermore, it was dwelling 2, in particular, and not just one of the dwellings, that was to be deleted.

The layout of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.

10 The applicant company has changed its mind to some extent. Instead of the three double storey dwellings and one single storey dwelling specified in the words granting permission in the permit, it now wants to have two double storey and two single storey dwellings. It has prepared new plans to this effect. These plans necessarily involve a degree of redesign of the individual dwellings, or at the least one of them, in addition to any reconfiguration of the dwellings on the site.

11 At this stage there are still no plans approved or endorsed pursuant to the permit. To refer to the now proposed plans as "modified plans" is correct in so far as they are modified, as compared with the original application plans.

12 The applicant company has sought approval of these "modified plans" pursuant to s.62(3) of the Planning and Environment Act 1987 (PE Act). That section authorises the responsible authority to approve amendments to plans, dwellings or other documents approved under a permit provided that the amendment is consistent with the planning scheme currently apply to the land and the permit.

13 I noticed that this provision relates to a situation of amending approved plans where an original set of plans has already been approved. That situation has not arisen in the present case. There are no plans that have been approved and endorsed since the grant of the permit. It appears to me that s.62(3) cannot apply to the plans for which approval is now sought.

14 There is another problem, or there would be if s.62(3) were relevant. This review is under s.149 PE Act. That section enables the Tribunal to review a failure or refusal of the responsible authority to give its consent or approval where such consent or approval is required by a planning scheme or a condition in a permit. The section does not extend to an approval or consent required under the PE Act itself. Thus the Tribunal can review a refusal to approve plans where none have been previously approved, but not where an amendment to previously approved plans is sought under s.62(3) PE Act. It appears that this could be the occasion for a small but useful legislative amendment.

15 The responsible authority had apparently anticipated yet another argument as to the applicability of s.62(3) having regard to another problem. Section 62(3)(a)(ii) requires that the amended plans must be consistent with the permit. The point of the responsible authority was to say that the now proposed plans are not consistent with the permit because they depict two double storey dwellings and two single storey dwellings whereas the permit, in its words of permission, distinctly specify three double storey dwellings and one single storey.

16 Of course, s.62(3)(a)(ii) cannot apply if s.62(3) itself does not apply. However, even without that section, plans submitted for approval and endorsement must comply with the permit. On that basis the concern of the responsible authority in relation to the mix of double storey dwellings remains relevant.

17 I might add, that the responsible authority is satisfied with the modified plans showing the two plus two (two double storey and two single storey) dwellings, so far as the planning merits are concerned. It has not given its approval because the two plus two plans are not consistent with the permit.

18 Quite apart from the question of the double storey mix in the words of permission, there is also the matter of "reconfiguration" in condition 1(a). It might be supposed that a single storey dwelling is less than a double storey dwelling, but that is not necessarily the case. A double storey dwelling may have a similar floor area yet take up a much smaller "footprint" on the surface of the site. A single storey dwelling, spread out to include generous or adequate floor space, may occupy more of the land and thus squeeze setbacks and available open space. Condition 1(a) specifically talks of providing greater open space and setbacks for the remaining dwellings. It has not become necessary to make a detailed comparison on this point.

19 It was said, on behalf of the responsible authority, that if the words of permission in the permit had merely referred to four dwellings, without specifying how many were to be single storey and how many were to be double storey, then the currently proposed plans could be approved. In fact, they would be approved, so far as the responsible authority is concerned.

20 However, that is not what the permit says. The words granting permission, being the primary words in the permit (however they may be modified or regulated by conditions) do specify three plus one rather than two plus two. There is a question then, as to whether this can be overcome.

21 It seems to me that to simply approve the plans in their present form would be to approve plans that are not consistent with the permit, and in particular, are not consistent with the words granting permission.

22 This might be resolved if the words specifying the three plus one formula could be deleted or disregarded.

23 So far as disregarding them is concerned, I consider that this would be amounted to making a declaration that the words are redundant and invalid. I am not sure whether it would be correct to do that, if I had the power, but I have no such power in relation to these proceedings. Section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) authorises the Tribunal to make a declaration instead of or as well as giving other relief. That could be done, except that the power can only be exercised by a presidential member. I am not a presidential member.

24 So far as declarations under ss. 149A and 149B PE Act are concerned, they are not so much an alternative relief, as able to be the subject matter of a separate application. I cannot make a declaration under s.149B, as that too requires a presidential member. I can make declarations under s.149A, although the relevant power there is limited to matters relating to the interpretation of the planning scheme or a permit. In any event, no such application has been made. In those circumstances I did not pursue the question as to whether a declaration could or should be made, if I had the power.

25 The other remedy would be to delete or change the obstructing words in the words granting permission. In this connection I observed that the form of words might in fact amount to a condition, not in the list of conditions but in the words of permission. The alternative here is that they are an integral part of the words of permission themselves. It has not been necessary to decide that point.

26 One means of amending a permit is to make a request to the responsible authority under ss.72 and 73 PE Act. However, that cause is obstructed in this instance by s.73(a). It provides that the responsible authority may amend a permit if it is satisfied, amongst other things, that the amendment does not change the effect of any condition required by the Tribunal. If the formula in relation to storeys is really a condition, then the responsible authority would be barred by s.73(a). Furthermore, a condition must be secondary to the primary words granting permission. It seems to me to be contrary to principle for the responsible authority to be changing the words granting permission, except where that power is expressly given, for example, under s.73(d). That sub-section provides that an amendment can be made provided the responsible authority is satisfied that it does not change the use for which the permit is issued other than a minor change to the description of the use. There is no question of use in this case, so that sub-section does not arise. I only refer to it because it gives an example of where there is specifics statutory authorisation for changing the words of permission.

27 In any event, the responsible authority is not willing to amend the permit and the words of permission in the permit pursuant to ss.72 and 73.

28 The other means of amending a permit to deal with those words would be pursuant to s.87 PE Act. Under that section a request can be made to the Tribunal to amend a permit. However, to exercise that power, the Tribunal must be satisfied as to the existence of one or more of the grounds set out in s.87(1). The difficulty here is that none of those grounds are applicable. The most obvious one is probably material change in circumstance since the grant of the permit. However, there is no such change of circumstance, relevant to planning considerations, that can be pointed to. All that has happened is that the applicant has had a change of mind as to the form of development it desires. That has been held to be insufficient.

29 It seems to be anomalous that the Tribunal cannot amend a permit where, or on the ground, that the amendment will not cause an increase in detriment to any person. One of the constraints on the responsible authority under ss.72 and 73 is s.73(c). It provides that the responsible authority, before it may amend, must be satisfied that the amendment will not cause an increase in detriment to any person. If it happened to be that the permit in question had not been granted by the responsible authority, then a responsible authority can make an amendment provided it is satisfied that it will not cause an increase in detriment to any person.

30 One would have thought that a similar power should be available, at least to the Tribunal, where the permit happens to have been granted by the Tribunal. However, the Tribunal is bound by the statute. The Tribunal can only amend a permit where it is satisfied that one of the grounds in s.87(1) PE Act is made out. Section 87(1) does not allow absence of detriment to any person as a ground. The Act does not otherwise enable the Tribunal to amend a permit on that basis.

31 Thus an amendment, that could have been made if appropriate, if the permit was granted by the responsible authority cannot, in the circumstances of this case, be granted because the permit happens to have been granted by the Tribunal. It usually cannot be granted by the responsible authority because it is constrained by s.73(a). That provision requires the responsible authority to be satisfied that the amendment will not change the effect of a condition imposed by the Tribunal. It cannot be amended by the Tribunal for want of a ground under s.87(1) as want of detriment to any person is not a ground under that sub-section. A legislative amendment in this connection would be very helpful to the convenient, timely and just operation of the legislation in relation to amending permits.

32 Anomalous or not, or inconvenient or otherwise, the Tribunal has only the powers granted to it by statute. It cannot grant a request for amendment under s.87 unless it is satisfied that one of the grounds under s.87(1) is made out. It appears that that would not be possible in the present case.

33 It appears that the only means of achieving the two by two arrangement of dwellings as proposed in the plans for which approval is now sought would be to apply for a new permit seeking permission afresh for four dwellings on the basis of plans showing two to be double storey and two to be single storey.

34 It appears to me that, if I was to approve those plans now, it would be in defiance of the words of permission in the permit. If I can do that, why could I not similarly change the formula to allow a couple of three or four storey dwellings? Without being able to change the wording of the permit, or declare the words in relation to dwellings of varying numbers of storeys to be redundant and ineffective (if such a declaration was appropriate) I feel constrained to refuse this application for review on the basis that the approval sought is not open because the plans are inconsistent with the permit.