Jolin Nominees PL v Moreland CC

Jolin Nominees PL v Moreland CC - [2006] VCAT 467 - VCAT 2006 case summary — Zoe

[38]

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:

[90]

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:

[92]

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.

At a glance

Court

Decision date

Before

Source

Judgment (106 paragraphs)

Jolin Nominees PL v Moreland CC (Red Dot) [2006] VCAT 467 (31 March 2006)

Parties

Legislation Cited (1)