Jefferson v Mornington Peninsula SC [2003] VCAT 806 (4 July 2003)

Application under s. 77 of the Planning and Environment Act 1987; Mornington Peninsula Planning Scheme; Residential 1 Zone; Environmental Significance Overlay (ESO25 Port Phillip Coastal Area); Preliminary Matter; Definition of Dwelling; Ambit of Discretion.

[2003] VCAT 806

That, having regard to the definition of "dwelling" pursuant to Clause 74 of the Mornington Peninsula Planning Scheme, the existing building on the subject land is one dwelling.

The matter is re-listed for Hearing on Friday 1 August 2003 at 10am, at the offices of No. 55 King Street, Melbourne, for one day, to hear submissions from any party to the proceeding relating to the merits of the Application for Review.

No later than close of business on Friday 11 July 2003, the Applicant is required to file and serve any request that it will seek to make at the resumed Hearing to amend or clarify that the permit application is for buildings and works associated with the existing single dwelling on the land.

Any party intending to call an expert witness at the resumed Hearing is to file with the Tribunal and serve on all parties a written report containing the evidence in chief of such expert witness not less than 10 working days before the date fixed for the resumption of the Hearing on 1 August 2003.

Mr S Jones of Counsel appeared by direct brief on behalf of the Applicant for Review.

Mr P Newman appeared on behalf of the Responsible Authority.

Mr L Warfe and Ms K Dawes appeared as Respondent Objectors.

1. This is an Application under Section 77 of the Planning and Environment Act 1987 brought by Ms L Simons on behalf of Mr S and Mrs P Jefferson to review a decision by the Mornington Peninsula Shire Council ("the Council") to refuse to grant a permit in planning permit application P02/0772. A Notice of Refusal was issued by the Council on 19 February 2003 on the following grounds:

1. The proposed third storey addition does not respect the existing or preferred neighbourhood character of the surrounding residential area and those dwellings with a frontage to LaTrobe Parade as per Clause 55.02-1 neighbourhood character objective.

2. The proposed third storey addition does not respect the character of the existing or preferred building height of the surrounding neighbourhood.

3. The proposed third storey impacts upon the visual sequence and amenity of the existing development pattern of those dwellings with a frontage to LaTrobe Parade and within the coastal amenity of the Dromana foreshore to the north.

2. An Application for Review was lodged by Ms Simons on 25 February 2003 on the following grounds:

1. The block size and layout support the size building that is proposed.

2. There is no overlay on this block that prohibits a third storey.

3. Overshadowing and overlooking issues are nominal and have been addressed.

3. At the commencement of the Hearing, the Tribunal advised the parties that an apology had been received by Registry staff from Mr R Oakley. The Tribunal observed that he had made a written submission (6 June 2003) that was lodged out of time and at this stage no formal application had been made by him to be joined into the proceedings.

4. Mr Jones sought leave to amend the plans submitted with the application (March 2002) with plans circulated in late May 2003 and dated 28 May 2003. There was no objection to the request to substitute the plans from any party. I therefore granted leave in accordance with Schedule 1 of Clause 64 of the Victorian Civil and Administrative Tribunal Act 1998 to substitute the plans with those dated 28 May 2003.

5. Mr Jones made reference to the permit requirements for this Application, as had been foreshadowed in correspondence provided to all parties by Gilbert Simons dated 19 June 2003. I return to submissions made by the parties about this matter below, but in essence, the matter relates to the ambit of discretion available to the Tribunal which in turn hinges on whether the existing building is one dwelling or two. The Tribunal heard submissions from Mr Newman, Mr Warfe and Ms Dawes in relation to this matter, as discussed below.

6. To the extent that the matter is one that can be described as a question of law (rather than a matter of fact), the parties all gave their consent for the Tribunal, as constituted, to determine the matter.

7. After some discussion, the Tribunal adjourned the proceeding to allow it to inspect the existing building on the review site that same day. The purpose of the inspection was to ascertain whether the plans accurately showed the layout of the premises and to thereby assist a ruling as to whether there are currently two dwellings on the land. The Tribunal indicated to the parties that it would state whether any discrepancies were found, which I note below. It is also noted that if any material differences had been found, the Tribunal would have reconvened the Hearing prior to making a ruling to allow an opportunity for further submissions.

8. Prior to the adjournment, the Tribunal advised the parties that a ruling, in writing, would be prepared and forwarded to all parties.

9. The Tribunal also foreshadowed to the parties that it would take the opportunity on its inspection to examine the review site, the surrounding area and visit the premises at No. 2 Foote Street (Ms Dawes' residence). That was said to be acceptable to the parties. These additional inspections were undertaken by the Tribunal. At the Hearing, the Tribunal stated that it may need to visit the site and locality again and would do so if requested or if it felt it to be necessary.

10. Mr Jones foreshadowed an application to amend the permit application to make clear that the proposal is for buildings and works associated with one dwelling, not a dual occupancy, should the Tribunal find that the building is used as a single dwelling. Mr Jones' submission was on the basis that although the permit application was lodged with the Council on the basis of seeking approval for buildings and works associated with the existing (single) dwelling, following discussions with the Council, the agent for the permit applicant (Ms Simons) sought to amend the permit application to refer to a dual occupancy as the Council was of the view that the existing building comprised two dwellings. I do not need to explore the circumstances around this submission any further, or go to the Council's response as put by Mr Newman. It is relevant that Mr Jones indicated that as there is no desire by the permit applicant to seek approval for a dual occupancy. [It is noted that both the description of the proposal in the Notice of Refusal and the Application for Review refer to "dwelling additions" without any explicit reference to development associated with two dwellings].

11. As Ms Dawes indicated that she would not be available until October 2003, she asked if a resumed Hearing could be set on her return. After some discussion, she asked and was allowed to make her submission before the Tribunal adjourned to view the existing building on the subject site. There was no objection to that course of action by any party. The Tribunal advised Ms Dawes that she would be able to be represented at the resumed Hearing for further submissions to be made on her behalf should she so desire.

12. The date for the resumed Hearing was agreed with those persons present.

13. The subject site is located on the south-west side of Foote Street and LaTrobe Parade and comprises land that that abuts both streets. The land has been recently consolidated although a separate title is located on the corner of Foote Street and LaTrobe Parade. I was advised that the review site has an area of some 1,761 square metres. The land is currently occupied by a double storey building that is set to the south of the land, with access from Foote Street.

14. The question before me is whether the land is used as two dwellings at present. This is an important preliminary question given that the matters that must be taken into account by the Tribunal when reviewing the merits of an Application for Review are different when considering buildings and works for a single dwelling compared with an assessment of a proposal comprising buildings and works for two units on one site.

15. The main points in the submissions of the parties addressing this matter can be briefly summarised. Mr Newman, for the Council, submitted that the existing building is technically being uses as two dwellings, albeit in the one building envelope, having regard to the Planning Scheme definitions. He relied on the definition of "dwelling" in the Scheme with the area said to be the second unit being self-contained and including the four specified elements. He also submitted that the definition of "dependent person's unit" could not be applied given that the building is not movable.

16. Mr Warfe and Ms Dawes both referred to their understanding that the proposal is for two dwellings and their preference for the Application to be considered on that basis. Ms Dawes expressed concern that her objections related to built form and potential impacts on her amenity and those matters were the same regardless of whether the proposal is for one or two dwellings. There was a suggestion by Mr Warfe that a kitchen may have been installed illegally but that it is not a matter I have found necessary to explore.

17. In response, Mr Jones contended that the existing building is a single dwelling with an area available for use by the Applicant's elderly relative. He submitted that the existing layout does not meet the definition of "dwelling" particularly because the spaces could not be said to be separate and self-contained. In addition, as I have recorded, Mr Jones placed some emphasis on the fact that there is no desire by the permit applicant to seek approval for a two unit development.

18. First, I summarise the relevant planning controls set out in the Mornington Peninsula Planning Scheme ("the Scheme") as follows:

* the subject site is zoned Residential 1 under the provisions of Clause 32.01.

* a permit is not required to construct a dwelling on a lot of more than 500 square metres (the lot size being specified at Clause 52.04).

* an Environmental Significance Overlay applies to the subject land pursuant to Clause 42.01. The review site is within the area shown as Schedule 25 - Port Phillip Coastal Area. As no exemption is specified under the provisions of the Schedule, a permit is required for buildings and works. A permit would also be required for vegetation removal under the provisions of the Schedule.

* the site abuts a Road 2 Zone, being LaTrobe Parade.

19. Second, I record my understanding from the submissions made by the Council and Mr Jones that there is no existing planning permit for the use or development of the existing building as two dwellings.

20. Third, I refer to the layout of the existing building as shown on the plans.

21. At ground level, four doors that provide access to the building, one that appears to be the formal entry, close to Foote Street, and three others providing access to different parts of the building from the central garage.

22. The northern garage door leads directly to stairs and then the upper level dining/sitting areas and kitchen. Large deck areas are at the upper level of the dwelling, adjacent to three bedrooms, sitting room, sunroom and kitchen.

23. An east-facing door from the garage leads to a games rooms at ground level.

24. A southern door leads to a foyer area with access to a laundry (also with shower and toilet), as well as stairs leading to the first floor bedrooms/bathroom and then to the main living spaces.

25. The southern door also provides access via the foyer to a kitchen/kitchenette, a room marked as bedroom 4, a living area and bathroom. This is the space said by the Council to be a separate dwelling, and I refer to it as "the alleged second dwelling" for ease. The entry door to this space is located to the rear of the kitchen. As is the case with other rooms at ground level, there are floor to ceiling windows/doors that lead outside from the living area. There no other external doors.

26. The layout as shown on the plan was confirmed on my inspection of the premises. The only discrepancies I observed are noted below and neither are of any consequence to the preliminary matter before the Tribunal:

* a reference to a grate adjacent to the garage, that does not appear on site;

* a area marked as "bar" beneath the stairs at ground level which are adjacent to the southern entry to the dwelling from the garage and also opposite a laundry wall. On my inspection, this area was open below the stairs and used for the storage of some items such as shoes.

27. That leads to the consideration of whether the existing layout of the premises is regarded as one or two dwellings in terms of the provisions of the Mornington Peninsula Planning Scheme. The definition of "dwelling" set out at Clause 74 is:

A building used as a self contained residence which must include:

It includes outbuildings and works normal to a dwelling.

* there is no requirement for a laundry within a dwelling.

* there is no differentiation between permanent and short term residency.

* the relationship of persons who inhabit the building is not distinguished.

* the number of persons residing in a dwelling is not specified.

29. The definition of dwelling uses the term "self-contained" which is not defined at Clauses 71-74 of the Scheme, or elsewhere, such as in the Planning and Environment Act 1987.

30. As there is no definition, then the ordinary meaning is given to the term. The Macquarie dictionary definition of "self-contained" is:

containing in oneself or itself all that is necessary; independent; (of a flat or house) having its own kitchen, bathroom and lavatory, not necessitating sharing

31. Based on the information before me, the existing building could be best described as a single dwelling within which there is an independent living space. That space has each of the four items listed in the definition of dwelling at Clause 74 as set out in paragraph 28 above. However, it relies on access from one of the four external doors into the building as a whole and could be accessed from any of the other external doors albeit via a circuitous route. The building is keyed so that external doors and internal doors with a lock, such as the door to the rear of the kitchen in the independent living area, operate on the same key. Therefore, unless the external living room doors had a different key, access is shared with the remainder of the building and is not excluded from anywhere in the building.

32. It is common for separate dwellings within a building to share a laundry and entry foyers, as is often seen in apartment developments. The difference here is that access to the "second dwelling" is via the remainder of the building and there are no internal divisions or barriers to prevent a person occupying the "second dwelling" moving throughout the whole of the building. As noted, that allows all spaces within the building to be shared.

33. Consequently, although the ground level bedroom 4, kitchenette, living area and bathroom can act in an independent living arrangement, the Tribunal is not able to conclude that the "alleged second dwelling" and the remainder of the building can both be said to be self-contained and therefore both do not meet the definition of dwelling set out at Clause 74 of the Planning Scheme.

34. It is possible to envisage the layout being altered so that two parts of the building were self-contained, but that is not how the premises is currently built or used and nor is it the basis, Mr Jones said, of the permit application made by the Applicant. It is, therefore, not appropriate to pursue this further, consistent with various authorities that a Tribunal must consider the proposal as presented and cannot treat applications on the basis that the land may in future be used for some other (even unlawful) purpose [Appeal 1997/30288 Dover Street Pty Ltd v City of Yarra and D.M. Dodd and Others (unreported) and Application No. 1998/14941 Stebbins v City of Yarra and Anor (unreported)].

35. The existing layout clearly does not meet the definition of "dependent person's unit" as it is not a movable building. That was not an issue in any of the submissions.

36. The consequence of this finding is that, assuming the permit application specifies that buildings and works are associated with a single dwelling on the land, then no permit is required under the provisions of Clause 32.01. This is because a permit is not required for buildings and works associated with a single dwelling on a lot that is greater than 500 square metres in area.

37. The provisions of Clause 54 apply in the following circumstances, as set out in the Clause:

These provisions apply to an application to construct a building or construct or carry out works associated with one dwelling on a lot under the provisions of:

* A Residential 1 Zone, Residential 2 Zone, Mixed Use Zone or Township Zone.

* A Heritage Overlay or Neighbourhood Character Overlay if the land is in a Residential 1 Zone, Residential 2 Zone, Mixed Use Zone or Township Zone.

38. If the proposal relates to a single dwelling, there is, therefore, no basis to require an assessment pursuant to Clause 54 given that there is no permit requirement under the Residential 1 Zone and none of the specified Overlays apply to the review site. The Tribunal appreciates that such an outcome is a matter of grave concern to Ms Dawes, however, it is not open to the Tribunal to revise the legislation or to adopt an alternative interpretation.

39. A permit is required for buildings and works under the provisions of Clause 42.01 and its Schedule 25. The decision guidelines set out the matters that must be taken into account in making a decision. These provisions are set out below for the convenience of the parties.

CLAUSE 42.01 ENVIRONMENTAL SIGNIFICANCE OVERLAY

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To identify areas where the development of land may be affected by environmental constraints.

To ensure that development is compatible with identified environmental values.

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* The statement of environmental significance and the environmental objective contained in a schedule to this overlay.

* Any other matters specified in a schedule to this overlay.

SCHEDULE 25 TO THE ENVIRONMENTAL SIGNIFICANCE OVERLAY

The Port Phillip coastal area and adjoining offshore areas contain some of Victoria's most significant cultural and natural features, including sites of ecological, archaeological, geological, geomorphological, aesthetic and cultural heritage value. These places are of cultural, scientific and educational value to current and future generations.

* To protect and enhance the natural features, vegetation, ecological diversity, landscape quality, heritage values and recreation opportunities of the Port Phillip Bay coastal area and associated intertidal and marine habitats.

* To promote excellence in design of buildings, facilities and structures in the coastal area.

* To promote coordinated management of the Port Phillip coastal area.

Before deciding on an application, the responsible authority must consider, as appropriate:

* The degree to which the proposed development is dependent on a coastal location.

* The ability to reduce the number of buildings and other structures by combined use or reuse of existing buildings.

* The appropriateness of a condition requiring the relocation or removal of inappropriate structures as part of an application.

* Whether any proposed structure or works, including the planting or removal of vegetation, is likely to cause any deterioration of the Port Phillip Coastal Area by virtue of erosion or the deposition of sand or silt or any other reason.

* The Victorian Coastal Strategy, Siting and Design Guidelines for Structures on the Victorian Coast (May 1998) and Landscape Setting Types for the Victorian Coast (May 1998).

40. To summarise, the only reason a permit would be required for buildings and words associated with a single dwelling on the subject land is because it is located within the ESO. The objectives and decisions guidelines of Clauses 42.01, Schedule 25, and Clause 65 would require consideration in determining whether an acceptable outcome is achieved as required by Clause 65.

41. Those various provisions require the Scheme's policies to be taken into account, as appropriate. That is, as is appropriate to the discretion that is sought to be exercised. It does not give latitude to allow broad consideration of many/all of the Scheme's policies or extraneous Clauses. This is similar to the conclusion reached by the same division of the Tribunal in Shalit & Faine v Boroondara City Council and Anor [2002] VCAT 515 (12 June 2002); a decision upheld by the Supreme Court in Shalit and Faine v Jackson Clement Burrows [2002] VSC 528.

42. As a consequence of the ruling in this preliminary matter, the Tribunal has set out directions associated with the making of any application by the Applicant to clarify or amend the permit application, as referred to previously. That is sought to provide some certainty to the parties in the preparation of submissions and any re-consideration of the position and/or grounds Council may seek to rely upon.