[2006] VCAT 467

1 The application is allowed and the Tribunal pursuant to section 87 of the Planning and Environment Act 1987 amends Planning Permit No. MPS2003/0010 issued by the responsible authority in respect of the subject land as follows:

a

Conditions 1(f) and 1(j) of the permit are deleted.

b

Condition 8 of the permit is amended to read:

8 (a) Prior to the commencement of the development, an Environmentally Sustainable Development Management Plan (ESD Management Plan) must be prepared by a suitably qualified person. The ESD Management Plan must address the following:

•

Energy Management;

•

Water Conservation and Re-use;

•

Demolition and Construction Waste Management.

(b) Where appropriate, the ESD management plan should:

• Identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards.

•

Document the means by which the appropriate target or performance will be achieved.

•

Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring.

•

Demonstrate that the design elements, technologies and operational practices that comprise the ESD management plan can be maintained over time.

2 The responsible authority is directed to amend the permit and issue an amended permit to the owner of the subject land pursuant to section 91 of the Planning and Environment Act 1987.

Mr H Ng, town planner, of H & G Town Planning Pty Ltd

1 This is an application under section 87(1)(d) of the Planning and Environment Act 1987 to amend permit MPS 2003/0010 on the basis of a material change in circumstances. Specifically, the application seeks the removal of condition 8 from the above planning permit which was issued at the direction of this Tribunal in application P2336/2003 (Jolin Holdings Pty Ltd v Moreland CC[1]).

2 At the commencement of the hearing Mr Ng, on behalf of the applicant, requested that the application be amended to also include deletion of conditions 1(f) and 1(j) of the permit which, he submitted, were similar in effect to condition 8. Council did not object to this request and while the objectors noted that they had not been notified of the request, they too did not object. The Tribunal amended the application accordingly.

3 To the extent that any questions of law are decided in this case, they have been decided by Deputy President Gibson who is a legal member notwithstanding the language used.

4 Planning Permit No. MPS 2003/0010 was issued on 19 February 2004 at the direction of the Tribunal and it allows for the development of the land at 22 French Avenue, Brunswick East for sixteen dwellings comprising a mix of one, two and three storey dwellings.

5 Condition 1(f) requires the applicant to submit:

An energy rating report to demonstrate how the development will achieve a five star energy rating when measured against the Sustainable Energy Authority of Victoria "First Rate" system or equivalent.

6 Condition 1(j) requires that amended plans show

Provision of gas boosted solar hot water to service all dwellings.

Prior to the commencement of the development, an Environmentally Sustainable Development Management Plan (ESD Management Plan) must be prepared by a suitably qualified environmental engineer or equivalent, elaborating on the design initiatives and construction methods suggested in the Environmental Innovations report prepared by Integrated Eco-Villages for the development. The ESD Management Plan must include, but not be limited to the following:

a) Energy Management Plan;

b) Water Conservation and Re-use Plan;

c) Input and Output Materials Plan;

d) Internal Materials Analysis Plan;

e) Schedule for monitoring of the ESD Management Plan; and

f) Demolition and Construction Waste Management Plan.

8 The applicant submitted that conditions 1(f); 1(j) and 8 are contrary to the decision of the Tribunal in Hasan v Moreland CC[2] which called for an end to the imposition of ESD type conditions on planning permits as these should be the province of building regulations. The applicant also submitted that the conditions were ultra vires when tested against section 62(4) of the Act in that they are (or could be) inconsistent with the Building Act 1993. The Tribunal notes that during the course of the hearing the applicant retreated somewhat from this position acknowledging that the condition was not so much invalid as an unnecessary addition to matters best left to building regulations.

9 Council submitted that

•

A subsequent decision of the Tribunal (as in Hasan) does not amount to a material change in circumstances for the purposes of section 87(1)(d) of the Act.

•

If the Tribunal considers that a decision of the Tribunal can found an application under section 87(1)(d), then in the current circumstances it should decline to grant the remedy sought as a matter of discretion.

•

Condition 8 of the Permit is not ultra vires as against section 62(4) of the Act or clause 32.01-1 of the Moreland Planning Scheme.

10 The objectors supported council's assessment and stated that the conditions introduced a degree of certainty into the development of a building which, at all times, had been promoted as an environmentally sensitive design outcome. It is inappropriate to now remove this condition. In addition, the objectors found the applicant's threat of costs as intimidating.

11 The most relevant case is that of Hasan v Moreland CC which considered an application to delete the following conditions from planning permit Nos. MPS 2004/0716.

6 Prior to occupation of the development, hot water to the new dwellings must be from a gas-boosted solar hot water system or other system with similar or enhanced energy efficiency to the satisfaction of the Responsible Authority.

7 Prior to occupation of the development, stormwater from all roof areas must flow through rainwater tanks with only the overflow discharging to the legal point of discharge and the contents of the tank used for toilet flushing purposes to the satisfaction of the Responsible Authority.

8 The proposed development must achieve a minimum 5-star energy rating when measured against the Sustainable Energy Authority of Victoria 'FirstRate' system of [sic] equivalent.

[1] The use and development of land should be sustainable. But there will be more than one mechanism to achieve this outcome. Sometimes the appropriate mechanism will be by imposing conditions on planning permits. Sometimes it will be by relying on other legislation or fiscal policy or market forces. This proceeding requires us to consider planning permit conditions on a dual occupancy development requiring solar hot water systems, rainwater tanks and a 5-star energy rating. All these matters are comprehensively addressed in building regulations. We conclude that it is lawful, but inappropriate, to impose such conditions.

13 We note that since this case there have been a number of cases before the Tribunal which rely on Hasan to delete similar conditions. (See Tapinos v Moreland CC[3]; Cadd Net Corporation Pty Ltd v Moreland CC[4]; Devtec Pty Ltd v Moreland CC[5]).

14 The Tribunal notes that there is a difference in the nature of the conditions in Hasan (and some of the other cases) and the subject case. In Hasan, the conditions in dispute required the provision of ESD facilities such as gas boosted solar hot water and rainwater tanks which, it was found, were repetitive of building regulations. By contrast conditions 1(f) and 8 in permit MPS 2003/0010 require provision of ESD reports or plans rather than ESD facilities. Condition 1(j) is different and does ask for the provision of ESD facilities.

15 Having considered the submissions, the Tribunal believes that the following issues need to be addressed:

•

Whether there has been a material change of circumstances within the meaning of section 87(1)(d) of the Act.

•

The principle of ESD conditions on planning permits.

•

Whether the condition is ultra vires.

MATERIAL CHANGE OF CIRCUMSTANCES UNDER SECTION 87(1)(D)

16 It was submitted on behalf of the council that there were no grounds under section 87 of the Planning and Environment Act 1987 which would authorise the Tribunal to amend the permit. It was submitted that past decisions of the Tribunal have determined that to invoke section 87(1)(d), it is necessary to establish that:

•

A change has occurred since the grant of the permit;

•

The change relates to a planning consideration; and

•

The change is material (this is determined by making a comparison between the circumstances when the permit was issued after the alleged change took place).

17 Examples were given of changes that have been held to come within the operation of section 87(1)(d), which include a change in technology or the way in which a use is conducted; a change in the character of the area; and an amendment of a planning scheme. Examples were also given of changes which have not come with the operation of section 87(1)(d), which include a change of intention of the permit holder; a change in market conditions; and a discovery by the permit holder of characteristics of the land to be developed that were not known at the time of the permit application. The latter situation arose in the case of Maher v Mornington Peninsula Shire Council[6]. In that case, Deputy President Macnamara said:

...in my view no material change of circumstances has been demonstrated. The sandstone was there all along. All that has changed is the state of knowledge of the Mahers and their builder.

18 We consider that the view taken in Maher's case, and the other cases it refers to, is an excessively narrow view and one that is no longer justified in light of recent amendments that have been made to the Planning and Environment Act 1987. We refer to the changes introduced to facilitate the government's Better Decisions Faster programme.

19 Changes to the Act in 2004 introduced a new division 1A to part 4 relating to amendment of permits by the responsible authority. Section 72(1) now enables a person who is entitled to use or develop land in accordance with a permit to apply to the responsible authority for an amendment to the permit. Procedures for processing an application to amend a permit are set out. They parallel the processes for dealing with a planning permit application and involve notice, opportunities for objection and rights of review to the Tribunal. Importantly though, section 72(2)(a) provides that section 72 does not apply to a permit issued at the direction of the Tribunal. If a permit has been issued at the direction of the Tribunal for whatever reason, then an application to amend such a permit can only be made to the Tribunal pursuant to section 87. Consequential amendments were made to section 87 at the time when division 1A was introduced to facilitate this, including the insertion of a new category of person who may request the Tribunal to cancel or amend a permit in section 87(3)(e), namely:

(e) Any person who is entitled to use or develop the land concerned.

20 Division 3 Part 4 of the Planning and Environment Act 1987 deals with amendment and cancellation of permits by the Tribunal.

21 Neither division 1A or division 3 preclude alterations to plans or other aspects of a use or development by a responsible authority pursuant to a secondary consent contained in a planning permit condition. The importance of secondary consents and the parameters within which they must be exercised were addressed by the Tribunal in Westpoint Corporation Pty Ltd v Moreland City Council[7]. Essentially, a change can be approved by way of secondary consent if:

•

It does not result in a transformation of the proposal.

•

It does not authorise something for which primary consent is required under the planning scheme.

•

It is of no consequence having regard to the purpose of the planning control under which a permit was granted.

•

It is not contrary to a specific requirement (as distinct from authorisation) within the permit, which itself cannot be altered by consent.

If a responsible authority refuses to consent, an application for review can be made under section 149 of the Planning and Environment Act 1987.

22 Whilst there are important limitations on the ambit of the authority that may be exercised under secondary consent provisions, there are no limits to the extent of an amendment of permit that may be applied for under section 72. There is no suggestion that only 'minor' amendments are envisaged. The notice and review provisions ensure that persons affected and referral authorities will be given an opportunity to participate in the decision making process.

23 The benefits of enabling permits to be amended are many. The process recognises that a permit holder's plans and needs may change over time in response to matters such as changed economic conditions, changes in technology or operating procedures, more detailed site investigations (such as occurred in Maher's case) or simply because a permit holder has changed his mind. Being able to amend a permit avoids the need to reopen all the issues associated with the permit and focuses only on the amendment itself. It also avoids the proliferation over time of permits for different aspects of the use and development of a single site.

24 However, as noted previously, division 1A does not apply to a permit issued at the direction of the Tribunal. A permit may be issued at the direction of the Tribunal in circumstances arising from a refusal by the responsible authority to grant a permit; a failure to grant a permit; a review by objectors of the decision of the responsible authority to grant a permit; or an application by the permit applicant to review conditions in a permit. The review does not need to have been at the instigation of the permit holder, for example an objector's review under section 82. However, application of the test as to what constitutes a material change of circumstances as formulated in Maher's case would severely disadvantage the holder of a permit that had been issued by direction of the Tribunal. It would force them to apply for a new permit when perhaps only a very minor change to a condition was required. This is a waste of resources. It is also inequitable that permit holders whose permits may have been issued at the direction of the Tribunal for any reason should not have the same opportunity to amend their permits, if appropriate, as other permit holders whose permits have not been the subject of a Tribunal review.

25 It does not seem reasonable to assume that parliament intended to create inequities between permit holders depending upon whether or not their permits had been issued at the direction of the Tribunal. We consider that the amendment of section 87 at the time when division 1A was introduced into the Act indicates an intention on the part of parliament to ensure that any permit holder would have an opportunity to seek amendment of a permit either under section 72 or section 87.

26 Requiring an application to be made under section 87 directly to the Tribunal in circumstances where a permit has been issued at the direction of the Tribunal, avoids the situation whereby conditions that might have been specifically included by the Tribunal could be deleted by the responsible authority perhaps without regard to the reasons for their original inclusion. It avoids the potential to 'undo' the effect of a Tribunal decision, whether deliberately or otherwise. It safeguards the efficacy of Tribunal decisions yet still allows permits to be amended in the same way as under section 72 except under the auspices of the Tribunal. Adequate opportunities are provided in division 3 to ensure that persons with a material interest in the outcome of a request under section 87 are given an opportunity to be heard at the hearing of the request, just as potentially affected people are provided with notice of an amendment under division 1A.

27 Division 3 is intended to apply to the cancellation and amendment of permits at the request of various people not just permit holders. Therefore, many of the grounds referred to in section 87(1) will not necessarily be relevant to requests for amendments by permit holders. The most likely grounds upon which a permit holder will apply to amend a permit is section 87(1)(d) - a material change of circumstances which has occurred since the grant of the permit. On its face, this is a most comprehensive ground. It has been read down by previous Tribunals as previously outlined, and Maher's case probably represents the most restrictive approach it has been given. We do not consider that a sound planning justification remains for maintaining such a narrow interpretation of section 87(1)(d) in light of the changes which have been subsequently made to the Act and the wider opportunities now available to permit holders to apply for amendments to permits.

28 For these reasons, we consider that it is open to the applicant in the present case to rely upon section 87(1)(d) in making this request to the Tribunal to amend permit MPS2002/0010. We consider that the decision of the Tribunal in Hasan v Moreland CC[8] amounts to a material change in circumstances. Hasan's case was conducted as a hearing likely to result in a 'guideline' decision because the application for review had the potential to have broad implications throughout Victoria. The presiding member was the President of the Tribunal, Justice Stuart Morris, and observations were made about the weight to be given to the decision in future cases:

[36] As this case was in the nature of a test case, we would expect responsible authorities to cease imposing like conditions on planning permits. It would be undesirable if a future applicant was forced to incur costs to overturn such conditions. Of course, in such circumstance, the tribunal may need to make an order that the responsible authority pay such costs.

29 The special, guiding nature of Hasan's case places it in a category that we consider amounts to a material change of circumstances which has occurred since the grant of the permit. We hasten to add that there would be very few cases that fall within this category. We would not wish the present case to establish any sort of precedent for applications to amend permits simply because subsequent Tribunal decisions in other cases have resulted in different outcomes. Permit holders should not use section 87 applications to effectively 're-try' their own cases. Hasan's case was intended to have a wide application whereas most cases are relevant only to their own facts and rarely will the outcome be said to constitute a material change in circumstances in respect of another case.

30 Having decided that there are grounds upon which the applicant may make this request to amend permit MPS2003/0010, the question now is whether in fact it should be amended.

INCLUSION OF ESD CONDITIONS IN PLANNING PERMITS

31 Environmental sustainability has explicit support at all levels of the Victorian planning system. The Planning and Environment Act 1987 (at section 4(1)) has, as its initial objective:

(a) to provide for the fair, orderly, economic and sustainable use and development of land. [Emphasis added]

32 Section 4(2) of the Act notes that the objectives are (among other things) intended:

(c) to enable land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels.

33 At the State level, the State Planning Policy Framework (SPPF) of all Victorian planning schemes contains (at clause 11.03-2) the following environmental principle:

Environment and resource management principles for ecologically sustainable development have been established by international and national agreements. Foremost amongst the national agreements is the Inter-Governmental Agreement on the Environment, which sets out key principles for environmental policy in Australia. Other agreements include the National Strategy for Ecologically Sustainable Development, National Greenhouse Response Strategy, the National Water Quality Management Strategy, The National Strategy for the Conservation of Australia's Biological Diversity and the National Forest Policy Statement. The National Environment Protection Council is preparing National Environment Protection Measures to provide a common policy framework for environmental quality throughout Australia.

These national agreements, strategies and policies provide a broad framework for the development of strategies and policies at the State level to encourage sustainable land use and development. In Victoria these include State environment protection policies made under the Environment Protection Act 1970, which are binding on all sectors of the Victorian community. The Flora and Fauna Guarantee Strategy (Victoria's Biodiversity, Department of Natural Resources and Environment 1997) provides a framework for conservation of biodiversity in Victoria, in the wider context of' ecologically sustainable development. Victoria's Native Vegetation Management - a Framework for Action (Department of Natural Resources and Environment 2002), establishes the goal of Net Gain of native vegetation, and the principles for achieving this.

34 The SPPF (clause 11.03-2) goes on to state that:

Planning is to contribute to the protection of air, land and water quality and the conservation of natural ecosystems, resources, energy and cultural heritage. In particular, planning should:

•

Adopt a best practice environmental management and risk management approach which aims to avoid or minimise environmental degradation and hazards.

•

Prevent environmental problems created by siting incompatible land uses close together.

•

Help to protect the health of ecological systems and the biodiversity they support (including ecosystems, habitats, species and genetic diversity).

•

Protect areas and sites with significant historic, architectural, aesthetic, scientific and cultural values.

35 At the local level, the Moreland Planning Scheme (as much as any scheme in the State) embraces sustainability principles and notes (at clause 21.01-5);

Council will make sure that the decisions it takes and the legacy it leaves across the spectrum of community life will be sustainable. It is committed to the careful use of the City's natural resources and the wise stewardship of its built environment. Council also realises that sustaining the City's human potential requires careful thought for how it plans, finances and delivers social services.

36 Clause 21.04-1 identifies "Achieving Environmental Sustainability" as a key issue and influence:

True environmental sustainability relies, firstly, on conserving resources in a range of ways, such as reducing the use of energy and water and reducing greenhouse gas emissions. It also relies, equally, on the principle of activities continuing to function in ways that can be sustained into the far future. Environmental problems cannot be tackled in isolation from their social and economic dimensions.

Many issues of sustainability confront all countries. These range from greenhouse gas emissions of depletion of natural resources and soil degradation. All of these global problems require local solutions.

37 Objectives and strategies for Housing at clause 21.06-1 confirm this commitment including the need to improve the energy efficiency of residential dwellings by means which:

•

Integrate energy-efficiency principles and advice into the development approvals process, and require development applications to be assessed against standards based on the Home Energy Rating Scheme developed by Energy Victoria.

38 Finally, and in a very specific sense, Design and Development Overlay No. 5 (DDO5) applies only to the subject land at 22 French Avenue, Brunswick, and it contains design objectives including:

•

To provide a high quality example of the use of energy efficient design and environmentally sustainable development.

39 DDO5 includes the following building and works requirement:

Innovative design that achieves a more sustainable form of development should be achieved within the site. Opportunities for natural ventilation and cooling, reduction of impervious surfaces (including roof gardens), passive solar design, reuse of grey water should be utilised.

Development should achieve a minimum 4-star HERS rating.

40 At least two reports of Planning Panels Victoria (Manningham C33 and the Commonwealth Games Village Planning Advisory Committee) have recently addressed environmentally sustainable development principles and have emphasised the importance of ESD being an 'input' into the design process rather than an 'add-on' at the end of the process.

41 The Manningham C33 Panel considered (among other things) a new local policy at clause 22 of the Manningham Planning Scheme requiring that all new use and development in the Doncaster Hill Activity Centre must embody ESD principles in design, construction and operation. The vehicle for achieving this is the preparation of a Sustainability Management Plan (SMP).

42 The Manningham C33 Panel agreed in principle with this policy but suggested a structure for the SMP that:

•

Identified statutory obligations and documented sustainability performance standards.

•

Identified the 'beyond compliance' level of sustainable performance adopted by the applicant.

•

Demonstrated the means by which the agreed level of performance will be achieved.

•

Identified responsibilities and the schedule for implementation and monitoring.

•

Demonstrated that the design elements, technologies and operational practices that comprise the Sustainability Management Plan can be maintained over time.

The Panel agrees with the Council's view that the onus should be placed on developers to design with sustainability in mind from the outset rather than regarding sustainability as an 'add-on' that can be achieved by retrofitting a conventional design or achieved through the imposition of conditions. However, it is equally important to ensure that buildings are not just a catalogue of the latest ESD techniques but they actually produce a better outcome that is more environmentally sustainable and that justifies any additional cost.[9]

44 Some of the ESD aspects identified in the policy and SMP to be addressed included:

•

energy conservation and the use of renewable energy sources;

•

water conservation and re-use;

•

input and output materials selected;

•

interior materials selected;

•

waste avoidance and minimization;

•

quality of the public and private realm;

•

protecting human health;

•

integrated transport/traffic and land use planning;

•

protecting and enhancing the built, natural and cultural environments.

45 Another feature of the approach by Manningham was the formation of an Integrated Design Team so as to encourage on-going consultation between design teams, the developer and council officers at the earliest stages such as pre-application or conceptual design. Council's strategy noted:

The Integrated Design Team approach encourages all team members - owners, architects, ESD specialists, interior designers, engineers, site planners, landscape architects, contractors, utilities, etc. to communicate, collaborate, share decision making and problem solving. This approach ensures ESD is not an add-on to project design or scope and is seen to be as fundamental to the development as the roof and walls of the building are. Sustainability is the ultimate goal of an Integrated Design Team approach.

46 Evidently the brief of the Integrated Design Team is:

•

To provide guidance to prospective developers and design teams about what can be done with a site in which they are interested.

•

To advise on the consideration of development proposals through the statutory planning process.

•

To advise on and ensure the implementation of ecologically sustainable building design and construction practices.

•

To provide expert views on urban design, sustainability, accessibility and other related issues.

The whole assessment process using the Integrated Design Team approach is intended to be interactive and commence from the outset of the design process. The intent is to ensure that ESD principles and best practice are embodied in the design from its conceptual stage and this will result in fewer changes or conditions during the planning permit application process.

48 The Panel was particularly careful to ensure that there were tangible reference points in the policy and the SMP rather than just a jumbled collection of objectives, targets, techniques and implementation measures, noting that it is important to be able to assess proposals against meaningful measures. It added:

... [S]uch measures should be part of an overall plan, and such a plan requires targets. For example, '100% collection of rainwater and stormwater collected, treated and re-used on-site', is a target: it is a real performance measure that the use of various techniques can be assessed or measured against. Such a target enables the question to be asked whether implementation measures, such as maximising the use of permeable surfaces; landscape design that minimises water use; and podium/roof top gardens, etc. together achieve this target.

In the Panel's view, a Sustainability Management Plan should be identifying targets and outlining strategies for achieving those targets. It is the job of the Council as responsible authority, aided by input from the Sustainability Design Taskforce, to be satisfied that the targets can be met by the strategies contained in the Sustainability Management Plan and that the Sustainability Management Plan as a whole will achieve the objectives for ESD set out in the Planning Scheme.[10]

49 The outcome of the C33 Panel Report was clause 22.13 which is now in the Manningham Planning Scheme (Doncaster Hill Activity Centre Sustainability Management Plan Policy), one of the objectives of which is:

•

To require applicants for new use and development in the Doncaster Hill Activity Centre to prepare a Sustainability Management Plan as a means of documenting and delivering sustainability outcomes. [Emphasis added]

50 Clause 22.13 identifies that the SMP should (among other things) specify key performance indicators to an agreed level in order to measure the achievement of objectives and initiatives identified in the SMP.

51 The Commonwealth Games Planning Advisory Committee (Games Village) Report (June 2003) advances this discussion further, emphasising the need for realistic benchmarking against agreed outcomes rather than just a collection of platitudes.

52 Recent decisions by the Tribunal are also relevant to this discussion. In Walsh Land Surveyors v. Hepburn Shire Council[11], the Tribunal dealt with a condition requiring the submission of an environmental management plan (EMP). Evidently this was a standard council condition for all subdivisions in the rural areas of Hepburn. The Tribunal rejected the condition noting that a more tailored approach to individual applications is required as opposed to the more 'global approach' adopted by Council. The Tribunal urged council to take a more sensible and practical approach based on making an initial assessment on whether the application gives rise to significant environmental issues and then taking the consequential step of requiring preparation of an EMP.

53 During the hearing, the Tribunal requested information from the responsible authority as to whether or not it had any reference points or benchmarks in any of its ESD material and was advised that none existed. The Tribunal also sought clarification regarding the document referred to in condition 8 (the Environmental Innovations Report) but no copy of this report was able to be provided.

54 Having considered all of the above, the Tribunal, as a matter of principle, makes the following observations:

•

There is justification at all levels of the planning system for the imposition of objectives, strategies and (perhaps) permit conditions which incorporate best practice ESD principles. The Tribunal agrees with Hasan that sometimes "the appropriate mechanism will be by imposing conditions on planning permits". These measures are over and above specific requirements of building regulations and local laws as they are part of the broader planning framework.

•

There is a need to be selective in applying such conditions and they should not be applied 'globally'. They should be proportional and relevant to the scale and nature of the development.

•

The requirements imposed by, or as a result of, a condition should not exceed what is reasonable to expect of the developer.

•

There is no need to apply conditions which are comprehensively dealt with by other legislation or regulation.

•

The usual vehicle to deliver planning permit outcomes is a plan and/or report, commonly referred to as an ESD management plan.[12]

•

Such a vehicle should be linked to identified targets that are framed in a way to actively encourage developers to design buildings, subdivisions and other developments to achieve the targets. Without these targets, the condition and the plan can become meaningless and fail one of the fundamental objectives of a permit condition, which is to deliver certainty.

•

Unless a council can show that an ESD type condition has a nexus with a transparent council ESD strategy or guideline, the Tribunal would be reluctant to allow such a condition just for the sake of it.

55 As drafted, conditions 1(f) and 8 accord with some of the above principles but it is questionable as to whether they deliver the certainty required. Any applicant is entitled to know the standards or targets which they have to meet. It is clear to the Tribunal that the applicant in this case is uncertain of what they might be and the council is in no better position.

56 We have elaborated on this issue and on the Manningham C33 Panel Report and the Commonwealth Games Planning Advisory Committee (Games Village) Report in some detail because we wish to emphasise the complexities associated with requiring an ESD management plan. The plan itself will not achieve anything. It will not make the development more sustainable. Rather, an ESD management plan only has value as a means of documenting and delivering sustainability outcomes that are part of the inherent design of the development. Requiring preparation of such a plan after the design is completed and approved will be a worthless exercise if the design has not embraced sustainability techniques and principles from the outset. An ESD management plan should not be required as a matter of course but only where one is really needed by reference to the scale or nature of the development in order to achieve sustainable outcomes in the longer term. This need should be sufficiently worthwhile to justify any additional cost.

57 In Hasan's case, a submission was made by the Housing Industry Association Limited that:

1. Sustainability requirements should not be set on a local basis, varying from Council to Council, as this will lead to haphazard, partial, inefficient, costly and inconsistent regulation of what should be an important issue for the whole Victorian community;

2. The additional sustainability conditions imposed by one Council, Moreland, will exceed the requirements of the Victorian Building Regulations;

3. The planning process is not the correct framework to regulate building details;

4. Sustainability issues chiefly relate to building design and are best dealt with consistently through the uniform Victorian Building Regulations;

5. Additional sustainability conditions impose unwarranted additional cost to the homebuyer without corresponding public benefits; and

6. The additional sustainability conditions will impose a disproportionate burden on particular sectors of the Moreland community.

58 The point was made by the Housing Industry Association that ad hoc energy efficiency and sustainability regulations in local planning regulation are often pursued by local governments in the absence of economic cost-benefit analysis and without adequate public debate, leading to regulation which does not deliver a net benefit and results in unnecessary and low quality regulation.

59 This point was echoed in the conclusions of the DSE - Sustainability in the Built Environment - Discussion Paper, which said:

Any sustainability objectives which are to be implemented through the planning system will need to be measurable. This is critical to ensuring the efficacy of sustainability requirements and determining whether higher-level targets can be met. Responsible Authorities need to be able to demonstrate that longer-term gains will be achieved particularly if short-term additional costs are involved.[13]

60 There is a difference between conditions that require specific ESD facilities, such as considered in the Hasan case, and conditions that require provision of ESD reports or plans. Hasan's case does not represent a retreat by the Tribunal in acknowledging the importance of sustainability. Hasan's case said: The use and development of land should be sustainable. But there will be more than one mechanism to achieve this outcome. [Emphasis added] We do not consider that Hasan's case justifies or envisages rejection of all conditions which require preparation of an ESD management plan so long as such a plan is a means of essentially documenting and delivering identifiable sustainability outcomes and the plan is proportional and relevant to the scale and the nature of the development.

61 If councils are going to require preparation of ESD management plans in connection with appropriate developments they need to be far more focussed about what it is they are asking for. There are many aspects of other regulatory systems which embody sustainability principles, such as the building regulations, state environment protection policies made under the Environment Protection Act 1970 and requirements imposed by referral authorities such as Melbourne Water. Councils should not be asking for something more unless there is a highly developed statutory and strategic basis for doing so, such as found in the Manningham Planning Scheme for Doncaster Hill, and they can provide a level of expert support about their ESD expectations from the initial stages of a development project. Without this, there is a real risk that different standards will be imposed that involve unwarranted additional costs without a corresponding net community benefit.

62 Conditions imposing excessive or ill-conceived requirements for ESD management plans can damage the credibility of the concept of sustainability. Many ESD objectives require co-ordinated action including actions by governments and individuals. Conditions in planning permits should be focussed on what it is reasonable to expect individuals to do, recognising that some objectives are best achieved through government action, either by regulation or fiscal policy.

63 On the other hand, there is a well developed body of best practice relating to various facets of sustainability that it is reasonable to expect developers and designers to be aware of and to incorporate in development proposals. For example, reducing the impact of stormwater on bays and catchments is a policy objective of Melbourne 2030 found in clause 12.07-2 of the SPPF. This may be achieved through a variety of ways such as incorporating water sensitive urban design techniques into developments and mitigating stormwater pollution from construction sites. Similarly, clause 12.07-2 requires that water resources are managed in a sustainable way by encouraging the conservation of water and use of alternative water sources.

64 All developments are expected to have regard to these and other objectives relating to sustainability found in the SPPF. Sometimes, for smaller developments, sustainability objectives will best be achieved by simply complying with building regulations and no additional measures will be justifiable in terms of cost and improved outcomes. But as developments increase in scale, so it is reasonable to expect that developers will not only be aware of the need to respond to sustainability objectives found within the planning scheme and the raft of other government strategies and policies identified in clause 11.02-3, but developers should be capable of incorporating these objectives into the design of their developments with a degree of sophistication proportional to the nature and sensitivity of the development.

65 Before embarking on preparation of an ESD management report, it is important that developers and councils have a clear idea of what the purpose of the report will be. In our view, with respect to each aspect addressed (such as energy management; water conservation and re-use; stormwater management etc), and where appropriate, an ESD management report should:

•

Identify relevant statutory obligations, strategic or other documented sustainability targets or performance standards.

•

Document the means by which the appropriate target or performance will be achieved.

•

Identify responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring.

•

Demonstrate that the design elements, technologies and operational practices that comprise the ESD management plan can be maintained over time.

66 In assessing an ESD management plan, a council should be satisfied that the targets identified can be met by the strategies set out in the plan and they will meet ESD objectives set out in the planning scheme.

67 The development allowed by the permit in the present case is for 16 dwellings comprising a mix of one, two and three storey buildings. There has been a site specific rezoning to facilitate this development with a site specific Design and Development Overlay that emphasises the need for a high quality example of the use of energy efficient design and environmentally sustainable development. There has been a Tribunal hearing. There has been preparation already of some form of ESD report, which is the Environmental Innovations Report prepared by Integrated Eco-Villages referenced in condition 8 (although neither the applicant or the council appear to have retained a copy). We therefore consider it is reasonable to assume that some consideration of sustainability principles has gone into the design already and has been assessed by the council, even though these issues were not specifically raised or addressed in the earlier Tribunal case.

68 We found it discouraging in the present case that neither the applicant nor the council appears to have any clear concept of what the ESD management plan required by condition 8 would look like or contain other than the headings included in paragraphs (a) - (f) of the condition (or at least any concept they shared with the Tribunal at the hearing). As neither party had a copy of the report referred to in condition 8, it is difficult to see how the council will be in a position to properly assess an ESD management plan in accordance with the terms of the condition. For its part, the applicant has obtained a quote to prepare an ESD management plan and has been staggered by the cost of approximately $30,000. It seems that it is the potential cost of the report that has triggered this application. In the circumstances, we are not particularly sympathetic.

69 We are not prepared to delete condition 8 from the permit because we consider this type of development should, and probably does, reflect sustainability principles in its design. These principles should be capable of documentation in line with the sort of structure outlined above. If there are any disputes about the adequacy or content of the ESD plan, an application to the Tribunal under section 149 may be lodged. However, as the council does not have a copy of the Environmental Innovations Report prepared by Integrated Eco-Villages, there is not much point in retaining reference to this report in condition 8 as the touchstone for the ESD management plan. We will amend condition 8 accordingly.

70 We have amended condition 8 further to confine it to the sort of matters identified in the building and works requirement of DDO5. We are not satisfied that matters such as an input and output materials plan or an internal materials analysis will greatly add to the achievement of sustainability objectives in this matter. They entail highly sophisticated concepts and we consider it is out of proportion to the scale and nature of this development to insist on them, especially in the absence of any well developed council ESD strategy or guideline regarding these issues.

71 We are satisfied that conditions 1(f) and (j) should be deleted. They are the same type of conditions that were the subject of consideration in Hasan's case, which the Tribunal found were inappropriate to be included in a planning permit.

72 Our decision to delete condition 1(f) does not mean that the development does not need to achieve a five star energy rating. It simply means that the energy rating of the dwellings is something better dealt with by the building regulations. It may be that such a report would be included as part of the ESD management plan addressing energy management (although what purpose would be served by this is another matter). The point is that a planning permit condition of this nature is not appropriate.

73 Similarly the deletion of condition 1(j) does not mean that gas boosted solar hot water services may not be used in the dwellings as a sustainability measure, but this is at the option of the developer. They are not an ESD facility that should be imposed.

74 We do not consider it is necessary to analyse this issue in any detail. The question of whether these type of conditions are ultra vires was considered in detail in Hasan's case. The Tribunal found they were not ultra vires. We rely upon Hasan's case and the reasons given in that case to find similarly that the conditions in the present case are not ultra vires.

[1] [2004] VCAT 225

[2] [2005] VCAT 1931

[3] [2005] VCAT 1958

[4] [2005] VCAT 1999

[5] [2005] VCAT 2293

[6] (1998) 22 AATR 152

[7] [2005] VCAT 1049, especially paragraphs 31-39

[8] [2005] VCAT 1931

[9] Manningham Planning Scheme Amendment C33: Doncaster Hill Activity Centre Panel Report (September 2003) page 5

[10] Manningham Planning Scheme Amendment C33: Doncaster Hill Activity Centre Panel Report (September 2003) page 84

[11] [2006] VCAT 178

[12] Such plans/reports presently go by a number of names including an Environmental Sustainable Development (ESD) Management Plan, an Environmental Management Plan; a Sustainability Management Plan; a Best Practice Ecologically Sustainable Management Plan; or an Environment Improvement Plan. For ease of reference, we will refer throughout this decision to an ESD management plan, which is the term used in the condition under scrutiny in this case.

[13] Sustainability in the Built Environment - Discussion Paper; Department of Sustainability and Environment (September 2003) page 40