Victorian Civil and Administrative Tribunal|2005-03-16|Before: Tribunal Member P

Klofz v Port Phillip CC (Red Dot) [2005] VCAT 473 (16 March 2005)

Sections 149B, 71 and 62(3) Planning and Environment Act 1987 - Correction of mistake or error in planning permit - Exercise of discretion in making a declaration - Situation when plans do not require endorsement under a permit - Purpose behind endorsement of plans

1 Application P2953/2003 is an application for a declaration pursuant to section 149B of the Planning and Environment Act 1987 that the amendment to the endorsed plans issued by the responsible authority pursuant to planning permit 250/2001 made by the responsible authority on 24 October 2003 pursuant to section 71 of the Planning and Environment Act 1987 was ultra vires. The background to this application is as follows.

2 On 27 January 2002 Member O'Leary made a final order in an application for review P50362/2001 in respect of the refusal by the responsible authority to grant a permit for 22 dwellings on the subject land.[1] The applicant for review in the present case, Mr Anthony Klotz, was a party in the earlier review proceedings. Member O'Leary's final decision followed a preliminary decision in which he had directed the permit applicant to prepare revised plans, which were then circulated and parties were given an opportunity to comment on them. Member O'Leary signed the revised plans submitted by the permit applicant and ordered that a permit be granted in accordance with the plans so signed by him. Permit 250/2001 was issued at the direction of the Tribunal and allows:

The development of 18 dwellings in accordance with plans by Studio 35 - Drawings 0051-TP3, TP4, TP5, TP6 and TP7 as signed by Tribunal Member P G O'Leary in Application for Review No 2001/P50362.

3 Unlike most permits which contain a condition that requires the endorsement of plans, permit 250/2001 does not contain such a condition. It contains a condition requiring endorsement of a landscape plan and a tree protection plan but that is all. We will address the implications of this later.

4 Notwithstanding the lack of a condition requiring endorsement of plans in accordance with the plans signed by Member O'Leary, plans were nevertheless submitted to the responsible authority and were duly endorsed by Ms Jane Birmingham on behalf of the responsible authority as being part of the permit on 22 January 2002.

5 However, there was a difference between the plans endorsed by Ms Birmingham on behalf of the responsible authority and the plans signed by Member O'Leary. The relevant difference relates to the north eastern windows of apartment 13 located on the first floor and now belonging to Ms Nicola Ma. The plans signed by Member O'Leary contain no screening of these windows whereas the endorsed plans clearly have marked on them translucent glass to a height of 1800mm.

6 The building works commenced in 2002 and were completed in accordance with the endorsed plans including translucent glass to the north eastern windows of apartment 13. Ms Ma purchased her apartment "off the plan" in 2002. After her apartment was completed and she settled the purchase and moved in 2003, she did not like the screening and removed it on the basis that it has not been shown on the plans when she bought her apartment.

7 In July 2003, the vendor of the apartment made an application to the responsible authority for a new planning permit. This application sought a planning permit for the development that had already been built and in which people were living, but without the screening to apartment 13. The applicant objected to this application in August 2003. By letter dated 24 October 2003 the responsible authority wrote to the applicants as follows:

I refer to the above planning permit application to which you have objected.

As you are aware Planning Permit 250/2001 was issued for the development of 3-5 Daley Street, Elwood. The endorsed plans forming part of this permit show screening to the upper floor windows of Apartment 13.

A review of the VCAT decision which allowed the development of the site indicates that this screening was not required under the VCAT order, where the preamble for the permit states "The development of 18 dwellings in accordance with those plans signed by Tribunal Member P G O'Leary in Application for Review No 2001/P50362."

The plans signed by Tribunal Member P G O'Leary do not show screening to Apartment 13. It would appear that the plans submitted for endorsement included additional screening above what was required by the Tribunal and that this inconsistency was not corrected at the time of endorsing the plans.

Council has concluded that the endorsement of the plans showing screening to Apartment 13 is an error, as the plans were not in accordance with those plans signed by P G O'Leary. This error has been corrected pursuant to Section 71 of the Planning and Environment Act 1987.

The current application (Planning Permit 802/2003) is therefore unnecessary and will be withdrawn.

Should you have any queries regarding the above please contact me on 9209 6249.

8 The way in which the error referred to in this letter was corrected was the endorsement of a new set of plans that did not include reference to translucent glass in the windows of apartment 13 and that were entirely identical with the plans signed by Member O'Leary.

9 The applicants were not happy with the action of the Council, which purportedly regularises the removal of the translucent film from the windows of apartment 13. They own a dwelling at 127 Tennyson Street, Elwood at the rear of the subject land and the north east windows of apartment 13 directly face the rear of their house and their backyard. They have lodged this application and seek a declaration that the action of the Council in endorsing the second set of plans was ultra vires.

10 At the outset of the hearing the Tribunal had the benefit of an inspection the subject land and the applicants' property to better appreciate the bases for the applicants' concerns about overlooking. Several facts are noted as an outcome of this inspection.

•

The nearest window of unit 13 to the applicants' house is 26 metres away.

•

New landscaping has been planted along the rear boundary fence of the applicants' property. It appears to be flourishing and in a short time is likely to provide an effective visual screen.

•

The applicants' house and the adjoining pair are the only two remaining single dwellings in the area. All surrounding properties are now flats or apartments. Some are 1960's style whilst others are of more recent construction. There is a very large gum tree at the rear of the subject land, which Member O'Leary required to be retained as a condition of granting the permit. The tree and the large space it occupies form a focal point in the outlook of not only apartments on the subject land but the 6 or 7 properties which have a direct abuttal to the rear portion of the subject land, including the applicants' property.

•

Although the rear of the applicants' house and backyard can be seen from unit 13, little detail within them can be perceived due to the distance and the landscape screening.

•

It is much easier to see into unit 13 from the applicants' house than vice versa.

11 There are three key issues associated with this matter:

•

Was it open to the responsible authority to amend the plans in the way it did pursuant to section 71 of the Planning and Environment Act 1987?

•

If it was not, should the Tribunal exercise its discretion to make a declaration?

•

Was any endorsement of plans necessary under the permit in the first place?

12 Section 71 of the Act provides as follows:

(1) A responsible authority may correct a permit issued by the responsible authority if the permit contains -

(a) a clerical mistake or an error arising from any accidental slip or omission; or

(b) an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the permit.

(2) The responsible authority must note the correction in the register.

13 The Council purported to act pursuant to section 71 of the Act when it re-endorsed the plans so they no longer showed any screening to apartment 13. It was submitted by Mr Klotz that the responsible authority has in fact amended the endorsed plans and this cannot be considered as correcting a permit. Section 71 cannot be used by the responsible authority to amend plans it can only be used to correct an accidental error in permit. Mr Klotz argued that the original endorsement was not a mistake or error: it was deliberate. The officer endorsing the plans intended to do what she did. If there was any error there was a deliberate error and the Tribunal has said in the case of Flintwell Pty Ltd v Shire of Pakenham (1991) 6 AATR 265 that section 71 is not to be used to correct errors of this type. The Tribunal in Flintwell held that section 71(1)(a) was available to correct mistakes in the recording and official communication of a decision. It is not available to correct mistakes in a decision properly recorded and communicated or to amend (as opposed to correct) a valid permit. In other words it was available to correct accidental errors not deliberate errors. A "deliberate error" was one where a person has said what he meant to say, but what he meant to say was erroneous. An "accidental error" was one where a person meant to say one thing but, as a result of a slip or accidental error in fact said something different.[2]

14 On behalf of the Council, Mr Rantino argued that an accidental error is not confined to a clerical slip but refers to something which fails to convey what was intended. Errors can be committed under a misapprehension of a person's powers. In the present case, even if the officer purported to turn her mind to the windows of unit 13 and she realised that there was a difference between the plans signed by the Tribunal and the plans presented to her for endorsement, but nevertheless decided to endorse those plans, she would have been in error because she had no power to do this. Her power was confined to endorsing plans that were the same as those endorsed by the Tribunal and referred to in the operative words of the permit. To the extent that the plans were different, there was an error and it was open to the responsible authority to correct the permit.

15 In any event, said Mr Rantino, a proper analysis of what actually occurred was not an amendment to the permit but an amendment to the endorsed plans. The Council has power to amend endorsed plans under section 62(3) of the Act or the secondary consent powers encompassed by condition 5 of the permit. He submitted that on this basis the Council has acted within the powers conferred by section 62(3) of the Act and condition 5 of the permit. However, even if the Council is confined to arguing its case upon reliance on section 71 of the Act, the Council's decision to correct the permit was a proper application of section 71 in the circumstances of the case.

16 Whilst we have concluded that there was, in fact, no need to endorse plans in the first place under permit 250/2001, even if this was not the case, we find that it would have been open to the Council to have endorsed the amended plans pursuant to section 71 of the Act for the following reasons.

17 The Council was under a statutory duty to grant a permit in accordance with the Tribunal's direction. Once the Tribunal adjudicated upon the matter and directed the grant of a permit, Council had no independent decision role. It was not open to it to make any change to the plans that had been endorsed by the Tribunal. As the Tribunal said in Purchase v Baw Baw Shire Council [2001] VCAT 699:

[5] It is important to appreciate that the grant of the permit became the responsibility of the Tribunal after the application for review 1998/176 was launched. The duty of the Responsible Authority, when the Tribunal has determined to grant a permit, is to issue a permit in terms of the grant made by the Tribunal. The Responsible Authority has no right to go adding to the permissions granted or to the conditions imposed by the Tribunal. Its duty is to issue a permit in terms of the decision of the Tribunal. If the Responsible Authority considers that the Tribunal may have overlooked something, or made an accidental slip or mistake, the proper course is to draw the attention of the Tribunal to this circumstance so that the Tribunal can correct its determination if necessary.

18 In our view, endorsement of the plan contrary to the permit was the type of error which, had the Council known that it occurred at the time, it would and could have corrected immediately. There is no evidence of the officer having turned her mind to the question of screening of unit 13, but even if she did, she would have been mistaken to think that it was open to her to endorse plans which included screening to the relevant windows.

19 The power under section 71 of the Act to correct mistakes or errors in a permit is not restricted to simply correcting the words of a permit but extends also to correcting plans endorsed under a permit. We do not consider that the views of Justice Morris expressed in Gant v Greater Geelong City Council [2003] VCAT 2037 alters this proposition.

20 Gant was a case where the Tribunal was required to consider whether an amendment to endorsed plans pursuant to section 62(3) was consistent with the permit. In the context of considering what "consistency with the permit" meant, Justice Morris said:

[5] The first basis upon which the argument is put cannot be sustained. The plan originally endorsed under the permit, whilst it then forms part of the permit, cannot be regarded as a core component of the permit with which consistency is required. To so hold would mean that whenever a plan was approved under a permit it could never be changed pursuant to section 62(3), because the change would be inconsistent with the earlier endorsed plan. Rather, in my opinion, what is meant by consistency with the permit in section 62(3) is consistency with the words used in the permit: in particular, words which describe what is allowed and words which describe the conditions which apply to what is allowed.

21 Justice Morris acknowledges in this extract that the plan endorsed under the permit forms part of the permit. Normally, when conditions of a permit require endorsement of plans they will specifically state that once approved, the plans shall be endorsed and form part of the permit. We therefore consider that it is open to a responsible authority to correct a mistake or error in an endorsed plan which forms part of a permit pursuant to section 71 of the Planning and Environment Act. The power to amend plans pursuant to section 62(3) of the Act does not detract from the power that exists under section 71. They are two separate powers capable of operating in different circumstances.

22 Even if we had agreed with Mr Klotz that it was not open to the Council to have endorsed amended plans pursuant to section 71 of the Act, we would have declined to exercise our discretion to make the declaration which he seeks because no good purpose would have been served by it.

23 The endorsement of the amended plans reflects the determination of the Tribunal. The Tribunal in its preliminary decision dated 14 November 2001 specifically addressed the issue of screening associated with unit 13 and decided there was no need for further screening. It is inappropriate for the applicant to use the current declaration proceeding to attempt to effectively overturn an aspect of the Tribunal's original determination in this matter by changing the outcome.

24 We further find even if it had not been open to the Council to have changed the endorsed plans pursuant to section 71 of the Act, it could have done so pursuant to section 62(3) of the Act.

25 Mr Klotz objected to the Council raising this argument and claimed to have been taken by surprise. To ensure he had an adequate opportunity to respond to the issue, we gave leave to submit further written submissions following the hearing. Further submissions were made in which Mr Klotz reiterated his initial objection to the argument being raised.

26 We do not place any weight on this objection. Such a legalistic approach is not followed in the planning jurisdiction, which focuses on outcomes rather than technicalities. Section 84A of the Planning and Environment Act 1987 provides that parties are not restricted to grounds previously notified. It states:

84. An application may be determined after an appeal has been lodged

(1) A responsible authority may decide on an application for a permit at any time after an application is made for review of the failure of the responsible authority to grant the permit.

(2) Except in accordance with the advice of the principal registrar under sub-section (4), the responsible authority must not issue or give a permit, notice of decision or notice of refusal to the applicant, a referral authority or any objector after an application is made to the Tribunal for review of a failure to grant a permit.

(3) The responsible authority must inform the principal registrar if the responsible authority decides to grant a permit with or without conditions after an application is made for the review of its failure to grant the permit.

(4) The principal registrar must refer the decision of the responsible authority to a presidential member of the Tribunal for consideration.

(5) If the presidential member of the Tribunal so directs, the principal registrar must advise the responsible authority that a permit in accordance with the responsible authority's decision may be issued.

(6) The responsible authority must issue the permit within 3 working days after receiving that advice.

27 More generally, under section 97 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal is required to act fairly and according to the substantial merits of the case in all proceedings. Section 98 of the Victorian Civil and Administrative Tribunal Act describes the general procedure that the Tribunal must observe. These sections, taken together with the suite of powers given to the Tribunal to overcome non-compliance with technical requirements indicate a very clear intention that the Tribunal should reach preferred outcomes rather than outcomes based on technicalities and legal form that may not reflect the substantial merits of the case.

28 In the present case, the key issue is whether the Council had power to endorse the amended plans. We find that it did have such power under both section 71 and section 62(3) of the Act. We are not persuaded by Mr Klotz's further submissions that there was no power to do so under section 62(3). In terms of exercising discretion to make a declaration, it is irrelevant under which section the changes to the plans were made. What is most relevant is that the endorsed plans, as they now exist, reflect the true intention of the Tribunal and are in accordance with the permit granted by the Tribunal and issued at its direction.

29 This case has proceeded on the basis that it was necessary for the responsible authority to endorse plans prior to the commencement of the development permitted. However, we do not consider that in fact any endorsement of plans (other than a landscape plan and tree protection plan) was required under the permit.

30 The endorsement of plans under a planning permit is the means of identifying what it is that the permit allows to be developed. There is nothing magic about endorsement or a universal requirement for plans to be endorsed under every permit. Endorsement is normally necessary because invariably there will be some changes required to the plans which were initially submitted with the planning permit application. Even if no changes are required endorsement serves to identify the plans which the permit allows. But in the present case, the process of change occurred under the auspices of the Tribunal hearing with the preliminary decision by the Tribunal, which required the preparation and circulation of amended development plans. The Tribunal did not require any further change to the plans submitted to it as a result of this process and endorsed by Member O'Leary. By incorporating reference to the plans signed by the Tribunal into the operative words of permit (ie what the permit allows) the need for any subsequent endorsement of plans was eliminated. The plans of the development permitted by the permit were already sufficiently identified in the operative words of what the permit allows, namely:

The development of 18 dwellings in accordance with plans by Studio 35 - Drawings 0051-TP3, TP4, TP5, TP6 and TP7 as signed by Tribunal Member P G O'Leary in Application for Review No 2001/P50362.

31 The conditions of permit 250/2001 reflect this. There is no condition requiring endorsement of plans prior to the commencement of the development except endorsement of a landscape plan and a tree protection plan, because nothing would have been served by such a condition. Conditions 1, 2, 3 and 4 all relate to the landscape and the protection plans. Condition 5, which states that the development shown on the endorsed plans must not be altered without the written consent of the responsible authority, in our view relates only to the plans that must be endorsed pursuant to the planning permit, ie the landscape and tree protection plans. Condition 5 does not relate to the endorsement of development plans because no such plans are required.

32 The outcome of this analysis is that the purported endorsement of plans on 22 January 2002, which showed screening on the windows of unit 13, was of no force or effect. Those plans did not form part of the permit any more than the subsequent plans endorsed in October 2003 which removed the screening to unit 13. The plans have no status as part of the permit.

33 The only plans that are relevant are the plans referred to in the permit as signed by Tribunal Member P G O'Leary. The development has been constructed in accordance with these plans. These plans do not show any screening to unit 13 and therefore there has never been any need for screening of these windows.

34 Our overall conclusion is that this application for declaration must fail. Not only do we consider that the grounds relied upon reveal no error in law on the part of the responsible authority, but the entire application has been misconceived because there was no requirement for plans of the development to be endorsed pursuant to the planning permit in the first place.

35 Admittedly, neither the applicant nor the responsible authority realised this. Indeed neither did the Tribunal until we came to prepare our decision and closely examined permit 250/2001. This is regrettable because it has resulted in a waste of considerable time and resources on the part of the applicant, the responsible authority and the Tribunal. There have been two Tribunal hearings and a mediation in connection with this application, which was first lodged in November 2003. We would like to think that the practice day procedures now operating in the Tribunal would not allow a matter such as this to drag on for so long in the future. As events have transpired, the only prejudice that has been suffered by parties has been the uncertainty created by the proceedings. The proceedings were based upon a technicality and it is perhaps ironic that they have been disposed of on a technicality. Whilst the applicants may be disappointed at the outcome, it is no different to the original decision made by the Tribunal upon the merits of the case when originally determined. Having had the opportunity to inspect the completed development, we consider that even if it had been open to us to review the substantive issue associated with overlooking in connection with the windows of unit 13, we would not have reached any different conclusion to the original Tribunal decision.

[1] Studio 35 Architecture v Port Phillip City Council [2002] VCAT 218

[2] See also Ivanhoe Gold Corporation Limited v Symonds [1906] HCA 71; (1906-7) 4 CLR 642 at 668: and Arnett v Holloway [1960] VicRp 6; [1960] VR 22 at 28

Environment Act 1987

Civil and Administrative Tribunal Act 1998

Klofz v Port Phillip CC

At a glance

Court

Decision date

Before

Source

Judgment (44 paragraphs)

Klofz v Port Phillip CC (Red Dot) [2005] VCAT 473 (16 March 2005)

Parties

Legislation Cited (2)