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[2001] VCAT 1833
defendant. The application for declaration was refused, and the Tribunal declared that 405 Spencer Street was affected by a Heritage Overlay and required a permit to demolish buildings on the land marked HO779.
1 cited instrument linked from this judgment.
The property was marked as covered by the Heritage Overlay on the planning scheme map, even though it was missing from the Overlay schedule. VCAT held that the map marking was enough to bring the land under the general Heritage Overlay provisions. In the Tribunal's reading, the schedule dealt with specified additional controls or variations, not whether the Overlay applied at all. Since the Overlay applied, clause 43.01-1 required a planning permit to demolish buildings on the land. Librey's request for a declaration to the contrary was refused.
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In Librey Pty Ltd v Melbourne CC [2001] VCAT 1833, the applicant, Librey Pty Ltd, asked the Victorian Civil and Administrative Tribunal to declare that its property at 405 Spencer Street, West Melbourne was not affected by a Heritage Overlay and that no planning permit was required to demolish buildings on the land. The application was made under section 149A of the ([1]).
The key planning-scheme facts were not disputed. The land was shown as HO779 on planning scheme map 6HO, but HO779 did not appear in the schedule to clause 43.01, the Heritage Overlay provision ([3]). The Council told the Tribunal that it had sought to correct the scheme by presenting Amendment C19 to a Panel, with the intention of placing the property in the schedule ([4]). The question for the Tribunal was what followed from the map and schedule not matching in this way.
Librey's argument was that the requirements of the Overlay applied only to heritage places specified in the schedule. As the property was omitted from that list, Librey said the Overlay did not apply and the map could not independently impose its controls ([6], [15]–[16]). The Council's position was that the map showed which land was affected by the Overlay, while the schedule identified whether specified controls or variations applied to a particular heritage place ([7], [13]–[14]).
The Tribunal refused Librey's requested declaration. It declared that the property was affected by the Heritage Overlay and that clause 43.01-1 required a planning permit to demolish buildings on the land contained within the place marked HO779 on map 6HO ([46]).
The Tribunal's starting point was the scheme's wording and structure. Clause 43.01 described the Heritage Overlay as “Shown on the planning scheme map as HO with a number (if shown)” ([2]). The subject property was marked HO779, which meant the map and the clause pointed to the same land. The Tribunal found no conflict between them: the map showed the area covered by HO779, and clause 43.01 expressly referred to places shown on the map as HO ([12]).
It also relied on clause 41 of the planning scheme. The Tribunal stated that where an overlay is shown on the planning scheme map, the overlay provisions apply ([35]). It reasoned that the planning scheme as a whole depends on reading the map to find which zoning and overlay provisions affect particular land ([34]). Thus, its first step in deciding whether the Heritage Overlay applied was to check the planning scheme map.
The central interpretative question concerned the “Scope” section of clause 43.01. That section said the Overlay requirements applied to heritage places specified in the schedule; that a heritage place included the listed item and its associated land; and that heritage places might also be shown on the planning scheme map. The Tribunal rejected the reading that the first sentence made schedule listing a necessary condition for all Overlay provisions to apply.
Instead, it read the three statements separately and in the context of the rest of clause 43.01 ([13], [17]). It examined the schedule's columns and linked them to specific provisions in the clause. For example, some permit requirements applied only if the schedule identified a place as one where external paint, internal alteration or tree controls applied. Other schedule headings corresponded to particular provisions concerning outbuildings and fences, the Victorian Heritage Register, prohibited uses, incorporated plans and Aboriginal heritage places ([19]–[21]). The Tribunal concluded that the schedule was relevant to these specific matters, rather than being the source of the general Overlay coverage.
The Tribunal described the schedule as subordinate to clause 43.01. In its reasoning, the clause imposed the controls, while the schedule indicated whether particular schedule-linked provisions or variations applied to a listed place ([23]). The absence of HO779 from the schedule therefore did not displace the consequence of its appearance on the map. The Tribunal also stated that nothing in “Scope” said that places not listed in the schedule were outside the Overlay ([38]).
Finally, clause 43.01-1 listed demolition or removal of a building as an activity requiring a permit ([2]). Because the land was subject to clause 43.01, the Tribunal concluded that demolition of a building on it required a permit ([45]).
This decision is an interpretation of the Melbourne Planning Scheme provisions reproduced and discussed in the reasons. The judgment does not set out a legislative history or describe a previously settled rule that the Tribunal was changing. It does, however, record competing readings of the interaction between the map and schedule.
Before the Tribunal's determination in this dispute, the relevant uncertainty was whether omission from the schedule meant that the Heritage Overlay did not apply, despite a map marking of HO779. Librey argued that the schedule was determinative ([6], [15]–[16]). The Council argued that the map identified the land subject to the control and that the schedule dealt with particular controls ([7], [13]–[14]).
The Tribunal resolved that interpretative question for this property. Its stated approach was that land shown on the planning scheme map as HO is subject to clause 43.01, whether or not a number is shown ([42]). It then treated schedule references as relevant when the clause specifically directed the reader to the schedule, such as to determine whether a variation or particular control applied ([44]). On the facts before it, HO779's absence from the schedule did not prevent the general Heritage Overlay provisions from applying.
The immediate practical consequence identified by the Tribunal was narrow and specific: clause 43.01-1 required a permit to demolish buildings on the land shown as HO779 ([45]–[46]). The judgment does not decide every possible question about how other Heritage Overlay provisions may apply to different land, nor does it assess the merits of a demolition proposal.
The case cites general construction authorities referred to in Librey's submissions, including Eastwood v Ashton [1915] AC 900 and Terri Co Pty Ltd v Aldoth Pty Ltd [1989] NTSC 3; (1989) 94 FLR 245 ([10]), and Horne v Struben [1902] AC 454 ([11]). The Tribunal's decision does not announce that those authorities were applied as the basis of its result. It instead found that there was no contradiction between the map and clause text that required resolving a conflict in the way Librey proposed ([12]).
At [12], the Tribunal observed that “there does not appear to be any contradiction between the planning scheme map and the text of clause 43.01.” In plain English, the map's identification of the land as HO779 was consistent with the clause's description of how the Heritage Overlay is shown. The Tribunal therefore did not need to decide which would prevail if they conflicted.
At [23], the Tribunal said: “The schedule only applies to specific matters referred to in clause 43.01.” This expresses the distinction at the heart of the reasons. The schedule was not treated as a complete register that alone determined which properties were subject to the Overlay. Instead, it answered particular questions where clause 43.01 expressly referred to schedule information.
At [37], the Tribunal said that to determine whether a property was affected by the Overlay, “one refers to the planning scheme map.” In practical terms, the map is the starting point for identifying whether the Overlay applies to land. The text of the clause is then used to understand the consequences of that identification.
At [42], the Tribunal stated that where a property is shown on the map as HO, “the Heritage Overlay provisions found at clause 43.01 of the planning scheme apply.” That statement directly answers the schedule omission issue. The property did not need to appear in the schedule for the general provisions to apply, on the Tribunal's reading of the scheme.
At [44], the Tribunal described a sequence: check the map for an HO area, read clause 43.01 to identify when a permit is required, and consult the schedule when the clause refers to it. In plain English, the schedule is not ignored, but its role is specific and depends on the clause's wording.
At [45]–[46], the Tribunal applied the demolition provision to the property and made its declaration. The outcome was not simply an abstract construction of the clause: it resolved that demolition of buildings on this mapped land required a planning permit.
The decision is particularly relevant to the fact pattern it addresses: land is marked as subject to a Heritage Overlay on a planning scheme map, but is not named or otherwise listed in the Overlay schedule. The Tribunal held that this schedule omission did not itself remove the land from the general Overlay provisions ([3], [38], [42]).
It is also relevant where a planning scheme schedule contains columns addressing specific variations or controls, and the question is whether absence from one of those schedule entries removes all controls or only means that the schedule-linked variation is not identified. The Tribunal's analysis connected particular columns to particular clauses, and treated schedule references as applying to those specified matters ([19]–[23], [39]).
The case's permit conclusion concerns demolition of a building on land subject to the Overlay. Clause 43.01-1 expressly listed demolition or removal of a building as requiring a permit, and the Tribunal applied that requirement to the HO779 land ([2], [45]).
The decision does not determine how to resolve a genuine inconsistency between a planning scheme map and its text. The Tribunal expressly found no contradiction in the case before it ([12]). Nor does it decide the consequences of land being listed in a schedule but not shown on a map, or how a different planning scheme's drafting should be construed. Paragraph [28] discusses that kind of mapping issue as part of the Tribunal's analysis, but the property before it was mapped as HO.
The supplied judgment contains no account of later judicial or tribunal treatment of this decision. It does not identify any subsequent case that followed, distinguished, approved, or rejected its reasoning. No conclusion about later treatment can therefore be drawn from the materials provided here.
The decision itself refers to three authorities in recounting the applicant's submissions. Eastwood v Ashton [1915] AC 900 and Terri Co Pty Ltd v Aldoth Pty Ltd [1989] NTSC 3; (1989) 94 FLR 245 were cited in relation to construction principles said to apply to subordinate legislation ([10]). Horne v Struben [1902] AC 454 was cited for the proposition that a diagram may give way to unambiguous text ([11]). These are authorities mentioned in the reasons, but the Tribunal concluded that the map and clause text did not contradict each other in this matter ([12]). The judgment therefore does not establish that it adopted those cases as the basis for its decision.
Several boundaries remain unresolved by the reasons provided. First, the Tribunal did not decide what result would follow if the planning scheme map and the operative text genuinely conflicted. It found no inconsistency on the facts before it ([12]).
Second, the Tribunal did not decide the case of a heritage place included in the schedule but not shown on a planning scheme map. It discussed the difficulty that might arise in understanding the scheme in that situation, and referred to the VPP Practice Note, but its operative conclusion concerned property shown as HO on the map ([28]–[33]).
Third, the Council had advised that Amendment C19 had been presented to a Panel to place the property in the schedule ([4]). The reasons do not report the outcome of that amendment process or decide what effect any later amendment would have.
Fourth, the case does not decide which specific schedule-based variations applied to HO779. The Tribunal observed that the property was absent from the schedule and stated that none of the specific matters identified through the schedule applied to it ([39]). Its declaration was about the general Heritage Overlay and the demolition permit requirement.
Finally, the decision does not address whether a permit application for a particular demolition would be granted, what considerations would govern such an application, or any merits assessment of proposed works. It decides the threshold point that a permit was required under clause 43.01-1 because the land was subject to the Overlay ([45]–[46]).
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The application for declaration by the Applicant pursuant to section 149A Planning and Environment Act 1987 is refused.
The Tribunal makes the following declaration pursuant to section 149A(2)(a) Planning and Environment Act 1987:
The property at 405 Spencer Street, West Melbourne is affected by a Heritage Overlay pursuant to the Melbourne Planning Scheme and according to clause 43.01-1 of the planning scheme a planning permit is required for the demolition of any buildings on the land contained within the place marked HO779 on planning scheme map no. 6HO.
____________________________
For the Applicant: Mr J Gobbo QC and Mr A Kincaid of Counsel instructed by Piva Lawyers
For the Responsible Authority: Mr J Rantino, Maddock Lonie & Chisholm
For the Respondent/Objectors: Ms A Williams on behalf of the North & West Melbourne Association Inc.
1. This is an application for declaration pursuant to Section 149A Planning and Environment Act 1987 that the property at 405 Spencer Street, West Melbourne is not affected by a Heritage Overlay pursuant to the Melbourne Planning Scheme and that no planning permit is required for demolition of any building on the land.
2. Clause 43.01 of the Melbourne Planning Scheme relates to a Heritage Overlay. The relevant parts of clause 43.01 to this application are set out as follows:
Shown on the planning scheme map as HO with a number (if shown).
The requirements of this overlay apply to heritage places specified in the schedule to this overlay. A heritage place includes both the listed heritage item and its associated land. Heritage places may also be shown on the planning scheme map.
3. The subject property is shown on planning scheme map number 6HO with the reference number `HO779'. Under clause 43.01 there is a schedule to the Heritage Overlay which lists the heritage places by reference to the planning scheme map number. The subject property HO779 is not listed in the schedule.
4. The Responsible Authority advised that it has sought to correct the planning scheme by seeking to place the property in the schedule to the Heritage Overlay by presenting Amendment C19 to a Panel.
5. The schedule is set out in the planning scheme in the form of a table with headings as follows:
The requirements to this overlay apply to both the heritage place and its associated land.
PS Map Heritage Place External Internal Tree Outbuildings Included on Prohibited Name of Aboriginal
Ref Paint Alteration Controls or Fences the Victorian uses may Incorporated Plan heritage place?
Controls Controls Apply? which are Heritage be under Clause
Apply? Apply? not exempt Register permitted? 43.01-2
Clause Heritage Act
6. The Applicant submits that the requirements of the heritage overlay apply only to heritage places specified in the schedule to the overlay. As the subject property is not specified in the schedule the requirements of the overlay do not apply. Heritage places specified only in the planning scheme map are not subject to the provisions of the overlay.
7. The Responsible Authority submitted there are nine overlays in the planning scheme every one opens with the wording "Shown on the planning scheme map as ...". Therefore reference is required to the corresponding map to identify whether the overlay affects a particular property. The planning scheme maps it was submitted are the instrument by which the operative provisions in the planning scheme are imposed upon properties within the municipality. The maps inform the reader whether the planning control applies. Therefore if one wishes to ascertain whether the heritage controls apply as prescribed by clause 43.01 one looks to see if the property is shown in a map marked HO with or without a number.
8. The Applicant submits that when considering whether zoning controls in a planning scheme apply the map is generally determinative because there is no schedule of places or addresses. This situation applies to most other overlay controls. There are cases where zoning and overlay controls are expressed not just by a map but also by the written text of the scheme. In this case the map illustrates the area affected by the control but is not determinative. The text is determinative. If the map identifies some greater or different area, it cannot apply. It is submitted that in this case the text prevails and the map is subordinate.
9. The Applicant submitted that the following presumptions of statutory interpretation applicable to subordinate legislation namely where there is a conflict between a `general' and a `specific' provision in a statute it is presumed that the specific provision prevails. In this respect it is submitted that the provisions of the schedule are more specific than the mere reference to heritage places in the planning scheme map. The provisions of the schedule should therefore take priority. The other presumption is that legislation is presumed not to interfere with vested property interests or the economic use of property
10. It would be necessary, the Applicant submitted, for clause 43.01 to be to the effect that the heritage places subject to the requirements of the overlay are contained in the schedule "as more particularly described [or delineated]" in the planning scheme map. In this respect the Applicant referred the Tribunal to several cases dealing with the principles of contractual construction: Eastwood v Ashton [1915] AC 900 applied in Terri Co Pty Ltd v Aldoth Pty Ltd [1989] NTSC 3; (1989) 94 FLR 245.
11. It is submitted by the Applicant that a linkage of the heritage places with the schedule to the map could have been done by use of the words "as further appears by the planning scheme map" but no such words appear in clause 43.01. The planning scheme map is to be construed as a separate basis of identification of the heritage places that are subject to the requirements of the overlay. The map must give way to the text: Horne v Struben [1902] AC 454. In this matter their Lordships stated:
Their Lordships consider that assuming, as it appears to be the case in regard to the western boundary, that the diagram contradicts the unambiguous text of the title it must give way to the text. The words in the grant which introduce the diagram are, "as will further appear by the diagram framed by the surveyor." Now, as matter of construction, this is merely an appeal to the diagram for further elucidation of the text, and not a subordination of the text to the diagram. If in a matter not requiring elucidation the diagram is repugnant to the text, this merely shews (what in the present instance is abundantly proved by other circumstances) that the diagram is not exact, and affords only a rough delineation of the form.
12. In respect of this matter there does not appear to be any contradiction between the planning scheme map and the text of clause 43.01. The map clearly shows the land covered by HO779 there is no dispute by either party in relation to the area covered. Clause 43.01 refers to "shown on the planning scheme map as HO with a number", the subject land is so shown there appears to be no discrepancy. There is no need to consider whether there should or should not be any other wording.
13. The Responsible Authority submitted that the sub-heading "Scope" in clause 43.01 reinforces the operation of the maps. This clause it stated identifies the extent to which the overlay provisions apply to properties. It makes three statements of where it applies these are, firstly, it applies to places specified in the schedule to the extent shown in the schedule; secondly the heritage place includes both the listed heritage item and its associated land and thirdly the overlay applies to places shown on the planning scheme map. Each statement in its own way describes the extent to which the provisions apply, they apply equally, one does not take priority over another.
14. The schedule to the overlay the Responsible Authority submitted does not describe the properties that are governed by the heritage overlay but describes the provisions of the overlay that apply to a specified property. As shown above the schedule has a number of headings. Mr Rantino submitted that for example if one wishes to ascertain whether external paint controls apply to the property then one looks to see whether the property is depicted in the schedule under "External Paint Controls Apply?" he stated that just because the property does not appear in the schedule does not mean it is not governed by a heritage control. It only means that those parts of the heritage control depicted in the schedule do not apply.
15. The Applicant submits that under the heading of "Scope" the provisions of the overlay are limited only to the heritage places specified in the schedule to the overlay. That the statement "the requirements of this overlay apply to heritage places specified in the schedule to this overlay" is interpreted to mean the application of the overlay only applies to those heritage places listed in the schedule.
16. The Applicant submitted that the fact that a heritage place may be shown on a planning scheme map does not of itself impose the relevant controls upon the use and development of the land. That depends on the land being included in the schedule to which clause 43.01 refers.
17. Giving the heading "Scope" its ordinary meaning what follows will give one an "extent or range of view, outlook, application, operation, effectiveness". If so applied to the wording following there are three separate sentences which although each contain reference to heritage places each refer to a separate application when read in the context of the provisions of clause 43.01. The first refers to heritage places specified in the schedule and states the requirements of the overlay apply to those heritage places specified.
18. The Schedule to the Heritage Overlay has several headings the first of these refers to the `PS Map Ref' referring to the Planning Scheme Map Reference in this case "HO779". The next heading is "Heritage place' which then describes the property either by area, property address or specifically as in the case of `Aboriginal Scarred Tree Fitzroy Gardens', there is then eight further headings.
19. To make sense of these headings it is necessary to refer to the text of clause 43.01. In relation to the first three of these remaining listed headings when one refers to clause 43.01-1 permit requirement there is listed eleven dot points when a permit is required one of these dot points refers to a permit being required to demolish or remove a building. Three of the dot points refer to a permit being required to externally paint a building, internally alter a building or remove, destroy, prune or lop a tree, in each of these cases there is additional wording, not found in relation to any of the other dot points particularly in relation to demolition of a building. The additional words state "if the schedule to this overlay identifies the heritage place as one" either "where external paint controls apply", "where internal alteration controls apply" or "where tree controls apply". These correspond to three headings in the schedule.
20. The next heading in the schedule refers to "outbuildings or fences which are not exempt under clause 43.01-4. Clause 43.01-4 lists twelve dot points of classes of development exempt from notice requirements and review rights. The first two dot points under this clause refer to demolition or removal of an outbuilding or a fence and have the following additional words "unless the [outbuilding/ fence] is identified in the schedule to this overlay".
21. Similarly the remaining headings in the schedule relating to the Victorian Heritage Register, prohibited uses being permitted, incorporated plan and Aboriginal Heritage places are all referred to in clause 43.01 at clauses 43.01-3, 43.01-6, 43.01-2 and 43.01-7 respectively and in each case within the clause there is specific reference to being identified in the schedule to the overlay.
22. The reference in "Scope" to the schedule to the overlay is to be read in relation to the schedule. It states that the requirements of the overlay apply to heritage places in the schedule, therefore if one refers to the first listed heritage place in the schedule namely the area shown on the planning scheme map as "HO1", "Carlton Precinct" whilst specific matters as listed do or do not apply to this area and are referred to either with a `yes' or `no' under the specific headings in the schedule, the first statement under "Scope" indicates the requirements of the overlay also apply therefore for example in the Carlton Precinct a permit is required under clause 43.01-1 to demolish a building. It clearly states that the requirements of the overlay apply to the heritage places specified in the schedule.
23. The schedule does not of itself impose the overlay controls it is clause 43.01 that does this the schedule is subordinate to the clause. The schedule only applies to specific matters referred to in clause 43.01. The schedule acts to notify when one of these specific provisions within clause 43.01 apply to a particular heritage place. In this respect the draughtsman of the clause has considered it necessary to state under `Scope' that the requirements of the overlay apply to the heritage places specified in the schedule. This statement does not state that heritage places must be listed in the schedule for the provisions of the overlay to apply, rather the overlay applies to heritage places listed in the schedule. In effect this statement acts as notice that because the heritage place is listed in the schedule it is not presumed to be exempt from the general provisions of clause 43.01.
24. The second sentence in "Scope" states "a heritage place includes both the listed item and its associated land". To attempt to give meaning to this statement reference is made to the VPP Practice Note, February 1999 "Applying the Heritage Overlay". The purpose of the practice note is to give guidance to Responsible Authorities about the use of the Heritage Overlay in the new format planning schemes. It states:
The Heritage overlay applies to both the listed heritage item and its associated land (refer clause 43.01 - Scope). It is usually important to include land surrounding a building, structure, tree or feature of importance to ensure that any new development does not adversely affect the setting or context of the significant feature.
The wording to describe the Heritage Place in the schedule should be specific to identify the area covered by the overlay control.(See the example of the Heritage Place HO4)
25. The example given states a tree as the Heritage Place and also describes specifically its associated land as "The heritage place is the Moreton Bay Fig Tree and land beneath the canopy edge of the tree for a distance of five metres from the canopy edge." This statement clarifies that the reference to the heritage place specifies what is to be considered as its associated land. If the heritage place was shown only as the Moreton Bay Fig Tree in this example with no specific detail of the associated land the second statement indicates that land associated with in this case the Tree is also to be included as part of the heritage place, as the overlay is to apply to both the listed heritage item and its associated land. The tree could be located on a large lot with or without buildings the associated land could include the whole lot.
26. Thirdly under "Scope" is a statement "that heritage places may also be shown on the planning scheme map". Reference to the Practice Note indicates that `all heritage places, both individual properties and areas, should be both scheduled and mapped'. It notes that in some cases this may need time and states "the Heritage Overlay allows a heritage place to be included in the schedule without being mapped. Heritage places which are not mapped should be mapped as soon as practicable."
27. The Applicant submits the third option simply provides the reader with a means of identifying a heritage place. It is remote from and does not state anything about the requirements of the overlay. The Practice Note, the Applicant submitted places primary importance by its terms upon the inclusion of a heritage place in the schedule itself as the determinant of whether a relevant property is subject to particular provisions. The Practice Note recognises that the heritage overlay allows a heritage place to be included in the schedule without being mapped and further that certain heritage places will not be mapped. Nowhere it is submitted does it require both scheduling and mapping.
28. It is difficult on reading this statement at first instance to understand how this can properly be applied when to ascertain if the property is subject to the provisions of the Heritage Overlay it is necessary to ascertain from the map as to whether the property is marked HO. If there is no such marking on the map in relation to a property that is the property is not shown on the planning scheme map as HO then it is difficult to see how the Heritage Overlay applies even if the property is listed in the schedule. Reference to a number of planning scheme maps in relation to how the marking HO is shown on a map reveals that the HO shown on the planning scheme map could cover a large area that covers several streets, a narrow area or just one or two properties, it could also include only portion of a property and not the whole title area. If the property is therefore not shown within such an area there would no doubt be a presumption that a mistake had been made as it appears from the initial wording of clause 43.01 that for the overlay to apply it must be shown on the planning scheme map. In such a case on the face of clause 43.01 the overlay would not apply and it would need to be addressed by an amendment to the planning scheme map.
29. Reference to the Practice Note again assists in relation to the intent of the application of the Heritage Overlay, in relation to this third sentence. It is clear from the statements made in the Practice Note that "the Heritage Overlay map, like all overlay maps, is intended to show which places are subject to a control. The Heritage Overlay map is not intended to indicate those buildings, structures, trees or other features considered to be important within a significant area." If this is read in the context of clause 43.01, there is a map which indicates the area subject to a heritage overlay "shown on the planning scheme map as HO", then within that area there can be individual significant buildings, structures, trees or other features considered to be important.
30. The Practice Note then states that these individual properties should only be scheduled and mapped if it is to trigger a variation to the control. Therefore it is conceivable that an individual property is within the area denoted on the planning scheme map as subject to the Heritage Overlay provisions that is "shown on the planning scheme map as HO". This individual property may be significant and be placed in the schedule because it is to be subject to a variation of the controls referred to in the schedule however as stated in the Practice Note mapping of the individual property may require particular information not currently available. The property therefore is subject to the overlay provisions as it is shown generally within an area marked HO on the planning scheme map and may have been placed in the schedule to trigger a control variation but has not yet been individually mapped as well. The phrase "Heritage places may also be shown on the planning scheme map" therefore is in reference to individual properties that may be shown separately as well as within the general overlay area on the planning scheme map.
31. The Practice Note does indicate that it is not necessary to separately schedule and map a significant building . If the significant building is included in an area marked HO then the overlay controls apply however such "heritage places may also be individually shown on the planning scheme map" although already covered by the area overlay.
32. It is not stated in the Practice Note that a heritage place already mapped need not be in the schedule for the overlay to apply. The practice note states that
"As the controls applying to individual buildings and structures are the same as the controls applying to areas, there is no need to separately schedule and map a significant building, feature or property located within a significant area.
The Heritage Overlay map, like all overlay maps, is intended to show which places are subject to a control.
The only instance where an individual property within a significant area should be scheduled and mapped is in instances where it is proposed to trigger a variation to the control.[Tribunal underlining]
33. A statement that the heritage place already mapped need not be in the schedule for the overlay to apply is considered unnecessary when the initial wording of clause 43.01 is read. The wording is clear, there is no need to state that if it is not in the schedule then the overlay provisions still apply. However it is not clear that if a heritage place is listed in the schedule with reference to specific matters applying to it that all other requirements in the overlay also apply. The statement to this effect under `Scope' that is that the requirements of the overlay apply to the heritage places specified in the schedule, clarifies this position.
34. Clause 43.01 states that the Heritage Overlay is shown on the planning scheme map as HO with a number(if shown). Therefore one must refer to the planning scheme map to ascertain if the property is subject to the Heritage Overlay. It is also necessary to refer to the planning scheme map with respect to the application of zone provisions and other overlay controls to ascertain if a property is subject to any of those provisions. The whole planning scheme is prefaced on the reading of the planning scheme map to ascertain what part of the planning scheme provisions apply.
35. The property is shown on the map as being subject to the Heritage Overlay. It can be shown with or without a number in this case it is shown with the number 779. Clause 41 states that if an overlay is shown on the planning scheme map the provisions of the overlay apply. On the face of it therefore the property is subject to the Heritage Overlay.
36. The Applicant submits it is not open for the Responsible Authority to contend the planning scheme map is to be read as prevailing over the verbal description of heritage places subject to the requirements of the overlay.
37. The text of clause 43.01 is clear in relation to the status of the planning scheme map. To determine if a property is affected by the Overlay one refers to the planning scheme map. This is further supported when reference is made to clause 41 of the planning scheme and to the Practice Note, the guide used by the Responsible Authority when preparing the Heritage Overlay provisions within its planning scheme. Once it is ascertained that the property is covered by the overlay provisions then the text of clause 43.01 applies. It is submitted that the scheme must be interpreted on its face.
38. Nowhere under the heading of "Scope" is there a reference to heritage places not listed in the schedule as it is clear that if the property is shown in the planning scheme map as HO then it denotes that the provisions of the heritage overlay apply. In the present matter it is irrelevant that the property has not been listed in the schedule. The provisions of clause 43.01 apply to the property.
39. It would appear that the only reason a heritage place is listed in the schedule is because one or other of the specific matters referred to under the headings in the schedule apply to the particular listed Heritage place. Therefore in the example of the "Carlton Precinct" it would appear that the only reason it is in the schedule is that a permit is required to externally paint the building as under clause 43.01-1 a permit is required to "externally paint a building if the schedule to this overlay identifies the heritage place as one where external paint controls apply and it is so identified in the schedule." As the subject property is not listed in the schedule none of the specific matters referred to in the schedule apply to this property.
40. The Applicant submitted the Responsible Authority had made a mistake which it said it had recognised by preparing Amendment C19 by not including the property in the schedule as the Applicant submitted to be affected by the provisions of the overlay in clause 43.01 the heritage place must be listed in the schedule. There are a considerable number of heritage places identified in the schedule. The subject property shown on the planning scheme map as HO779 is not listed in the schedule. I was not advised as to whether there are a considerable number of other heritage places referred to on the map and not listed in the schedule or whether there are any properties listed in the schedule that are not referred to in the map.
41. It may be that the Responsible Authority wishes to apply some of the specific matters referred to in the schedule to the subject property, a variation to the control and is therefore seeking to include it in the schedule by way of an amendment. It has certainly marked the property on the relevant planning scheme map indicating by this that the Heritage Overlay provisions are to apply to the subject property and in this respect it does not appear to have made a mistake.
42. If the property is shown as in this case on the planning scheme map as HO with or without a number the Heritage Overlay provisions found at clause 43.01 of the planning scheme apply. The three statements referred to under the sub heading "Scope" in clause 43.01 have no application with respect to this matter as the property is not listed in the schedule, it is not listed as a heritage item and it is already shown on the planning scheme map.
43. It could be said that unless reference is made to the Practice Note the reading of the three statements under "Scope" is difficult. However if clause 43.01 is read on its face that is one goes to the planning scheme map at the outset then return to the text the three statements become clear as the different provisions of clause 43.01 are looked at.
44. Therefore to ascertain how the provisions of the Heritage Overlay apply the following steps are undertaken. One refers to the planning scheme map, if within an area marked HO then clause 43.01 applies. Reference is then made to clause 43.01 in the planning scheme to ascertain when a permit is required. When in the text of clause 43.01 reference is made to the schedule then one refers to the schedule to ascertain if the heritage place is subject to a variation to the clause 43.01 controls. If there is a reference in the schedule either specifically to the heritage place which could be by way of address, building number or itemised as for a tree or generally by area or precinct then one is required to refer to the different columns in the schedule to ascertain which of the clause 43.01 controls are varied or apply.
45. For the above reasons it is clear that the property shown on the planning scheme map as HO779 is within the Heritage Overlay and subject to the provisions of clause 43.01. Pursuant to clause 43.01-1 a permit is required to demolish a building. As the property is subject to the provisions of clause 43.01 a permit is required to demolish any building on the subject land shown as HO779 on planning scheme map 6HO.
46. The Tribunal refuses to make the declaration as sought by the Applicant. Pursuant to Section 149A(2)(a) Planning and Environment Act 1987 the Tribunal will make the following declaration:
The property at 405 Spencer Street, West Melbourne is affected by a Heritage Overlay pursuant to the Melbourne Planning Scheme and according to clause 43.01-1 of the planning scheme a planning permit is required for the demolition of any buildings on the land contained within the place marked HO779 on planning scheme map no. 6HO.
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Librey Pty Ltd
Melbourne CC [2001] VCAT 1833
(1989) 94 FLR 245
The application for declaration was refused, and the Tribunal declared that 405 Spencer Street was affected by a Heritage Overlay and required a permit to demolish buildings on the land marked HO779.