Love v Whittlesea SC [2009] VCAT 1343

[2009] VCAT 1343

Victorian Civil and Administrative Tribunal|2009-07-13|Before: Stuart J, Mr P

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At a glance

Source facts

Court

Victorian Civil and Administrative Tribunal

Decision date

2009-07-13

Before

Stuart J, Mr P

Source

Original judgment source is linked above.

Judgment (103 paragraphs)

[1]

The application under Section 87(1) came on for hearing before Member Martin on 18 December 2008. The respondents contended that Mr Love had not made his request to amend as soon as practicable after he had notice of the facts relied upon and that the request proceeding should be summarily dismissed without consideration of its merits on that ground. In the determination published on 2 February 2009, Member Martin acceded to that application and dismissed the Section 87 request. At paragraph [34] of his determination the learned member referred to a 'need for Mr Love to act promptly after receiving the 7 August 2008 letter'. He also referred to the scale and major cost of the construction work. Symon Bros and Winslow are two residential construction companies operating in the Epping area whose building operations generate waste which is appropriate for recycling at the recycling facility on the subject site. Aurora Construction Materials Pty Ltd is the joint venture company controlled by the other two which is the operator of the facility. In the course of the hearing before Member Martin on 18 December, Mr Nitas, the manager of Aurora said that the crushing plant which had by then just been completed was assembled from components delivered by 50 to 55 semi-trailers over a period of three to four days in mid-June 2008. Council had been made aware of the construction of the plant which took some five days of crane work to assemble. Commissioning occupied the period from July to 3 December 2008. Apparently the construction of this crusher facility cost about $10m.
On 29 August 2008 Council endorsed drainage plans. These plans show discharge points adjacent to the eastern boundary of the site, that is next to Mr Love's land. The notation is:

[16]

Mr Peake said that since no planning permit had been sought for the crushing plant 'no planning permit has been granted for the rock crushing plant'. No development permit was required he said to bring a mobile plant on site.
According to Mr Peake, Council's letter to his client dated 8 August 2008 tacitly accepted Mr Love's contention that the permit required that the crushing plant be a mobile one.
Mr Peake referred to a number of authorities on the construction of planning permits Addicoat v Fox (No. 2) [1979] VicRp 37; [1979] VR 347, Marock v Bill Joy Pty Ltd [1981] VicRp 41; [1981] VR 413, 418; City of Springvale v Heda Nominees Pty Ltd (1982) 1 PABR 287; 57 LGRA 298.
He referred to a decision of the Full Court of the Supreme Court, BDL Cable and Electrical Co Pty Ltd v Brighton City Council (1990) 6 AATR 387 where the Court said it was permissible to look for instance at the permit application as an aid to construction of the permit but only if the permit were otherwise ambiguous or unclear.
According to Mr Peake the purport of the permit was clear and unambiguous. He referred to the introductory words and Condition 1. He said that when one had regard to the application plans and those substituted at the hearing, it was clear that 'what was permitted did not include a fixed rock crushing plant ...'. He submitted the expert reports relied on at hearing by the applicant also led to the conclusion that no fixed rock crushing plant was entailed in the application.
Mr Peake said that where a primary consent was required it could not be granted by way of secondary consent. He referred to Kitscone Pty Ltd v City of Doncaster and Templestowe (1993) 10 AATR 135 and Mentone Mansions Pty Ltd v Kingston City Council (2000) 6 VPR 128 where the Tribunal concluded that no secondary consent could be permitted which would amount to a transformation of the proposal cf Addicoat v Fox (No. 2) [1979] VicRp 37; [1979] VR 347. Accordingly said Mr Peake there was no application for a rock crushing plant permission and hence the permit allows no such thing. Only a primary consent could allow the rock crushing plant to be constructed.
In any event, even if this matter was proper for a secondary consent by the endorsement of plans on 8 February 2009 the later plans were so different that they could not be regarded as substantially in accordance with the plans referred to by the Tribunal in Condition 1. The crushing area as depicted in the originally endorsed plans were shown at 900 sq m (30m x 30m), three stockpiles each of 900 sq m showed a total area covered of 2,700 sq m. The crushing area and stockpiles were contained within an area of 0.55 hectares. The application depicted no crushing plant and included the statement:

[73]

These words therefore negate any entitlement of the permit holder to discharge any drainage onto Mr Love's land. I reject the contention that an entitlement to discharge drainage is to be regarded as implicit in the phrase 'drainage from the site'. If a visitor to this complex were to ask someone involved in its operation what the settlement pond was, the site operator could quite naturally and legitimately say, this is 'drainage from the site' without implying that since falling from the sky onto the subject property this water had left the site at any time. I also reject Mr Morris' contention that as a matter of reason and reality there must be an ability to discharge the water from the site at some time. This is a large site with relatively limited hard surfaces, therefore there is a large area into which drainage water may soak. The nature of the use permitted provides copious opportunities to employ drainage water for wetting down dust, cleaning plant and the like. There is ample space to construct holding ponds if they are required. Metropolitan Melbourne is now into its 13th year of what according to previous records is a drought and there is no immediate indication that things are going to change.
In any event I am not concerned in this proceeding to judge the wisdom of the condition which has been imposed. The condition is clear and unambiguous. Had the Tribunal intended to provide for the regime which Council and the permit holder now advocate which would limit drainage outflow to pre-development levels, no doubt it could have selected language to convey that thought. It has not done so.
Nor am I persuaded that to interpret the condition according to its plain meaning would result in the conditions not reasonably relating to the use and development permitted. Aside altogether from questions of the quantity of runoff, the use and development clearly has an effect upon the quality of runoff. Certainly the settlement ponds and interceptor arrangements that have been specifically provided for in the balance of paragraph 13 and catered for in what has been constructed are calculated to mitigate water quality affects. It would nevertheless be quite competent for the Tribunal to regard those measures as being less than 100% effective and therefore to stipulate for no drainage discharges at all as indeed it has done.
Subject to any discretionary considerations the ground for making the declaration sought relative to the drainage plan has been made out.
Next, I turn to the issue whether via the mechanism of secondary consent the substantial rock crushing facility now erected is authorised by the permit by virtue of the endorsement of the plans on 19 February. The rationale for the inclusion of provisions such as Condition 8 allowing for secondary consent is to be found in the Tribunal's determination in Cope v Hobsons Bay City Council (2004) 19 VPR 96, 107 [49].

[77]

More recently in Westpoint Corporation Pty Ltd v Moreland City Council [2005] VCAT 1049 the Tribunal provided a somewhat more elaborate formulation:
- 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 the permit was granted.
- It is not contrary to a specific requirement as distinct from an authorisation within the permit, which itself cannot be altered by consent.
In postulating these tests the Tribunal (Mrs Gibson and Mr Liston) denied that to be a permissible a matter for secondary consent must be minor or of a small scale. In Westpoint the Tribunal was considering not the validity of a secondary consent given by the Responsible Authority but rather determining for itself on a review application pursuant to Section 149(1)(a) of the Planning and Environment Act 1987 made by the permit holder whether secondary consent should be given. The question whether a matter is the subject of a secondary consent of the type under discussion or a primary consent by way of permit application is of significance in a number of respects. So far as the present proceeding is concerned, the relevance is that first secondary consent does not require any notice to be given to neighbouring land owners in contrast to a permit application and secondly does not generate any automatic right of third party review application by a neighbouring objector.
I turn first to consider whether the endorsement of the new plans on 19 February 2009 constituted a 'transformation'. The concept of 'transformation' derives from a decision of Brooking J as he then was in Addicoat v Fox (No. 2) [1979] VicRp 37; [1979] VR 347. His Honour was there considering the power of the then Town Planning Appeals Tribunal to issue a permit departing from what was the subject of the initial application. The Town Planning Appeals Tribunal had no express power to amend applications and used its power to issue permits on condition to achieve that power of amendment. The question considered by His Honour was the propriety of this course. He considered that the Tribunal's power to act in the manner described is co-extensive with the Responsible Authority's power. He said:

[95]

I reject the contention that the permit construed as a whole left large 'blanks' to be covered in. The permit itself does not refer to a 'mobile crushing plant' albeit that this is specifically referred to in the Tribunal's reasons for decision at paragraph [26]. As the authorities referred to and relied upon by Mr Morris and Mr Doyle on behalf of the Responsible Authority show, generally these reasons cannot be used for the purpose of construing the purpose and affect of the permit. Once rejecting the view advanced that the plans placed before the Tribunal had large blanks in them, by depicting a small crushing area 30m x 30m and by describing three relatively modest sized stockpiles, the original plans depicted something very different from what is depicted in the February 2009 plans and what has been constructed. It is unnecessary for me to repeat the various figures of heights, areas and so forth relied upon by Mr Peake. I am conscious as the Tribunal in Westpoint stressed, that this is not a matter merely of scale. In the end however I am forced to the conclusion that the materials recycling facility depicted on the February 2009 plans is vastly different from the one proposed to the Tribunal and depicted on the original endorsed plan. These second endorsed plans are not in my view generally in accordance with the plans put to the Tribunal.
Finally I turn to the issue of the dust management plan. I accept the submission put by the Responsible Authority and the permit holder that this plan must be viewed not only by reference to the map but also the accompanying narrative. I also accept that establishing illegality or invalidity based upon unreasonableness requires an applicant to leap a very high hurdle indeed.
In the end I think it inappropriate to make any declaration with respect to the dust management plan. The two criticisms which Mr Peake made of it were first, by reference to the limited areas that according to the map section were to be wetted down in accordance with the plan. Secondly he was critical of the plans failure to deal with the materials recycling plant.
As to the latter matter it must be thought that the situation was somewhat fluid. I propose making two of the declarations sought by Mr Love. My determination may be subject to appeal. There may be a retrospective permit granted authorising what has been built either in precisely its present form or in some modified form. Precisely what will be regarded as appropriate or what might be regarded as so inappropriate as to be unreasonable as a compliance with Condition 30 will be materially affected by the outcome relative to the recycling plant. Clause 3.1 of the plan states inter alia:

[97]

One of the dot points below is headed 'Transfer Points and Mobile Crusher'. There might be much to be said for the view that a plan which directs itself to a mobile crusher, pictures of which were placed before me by Mr Martin (expert engineer called by Mr Love) is thoroughly inappropriate and perhaps so inappropriate to be an unreasonable response to the requirement to manage dust from the unit which has been constructed, a unit which Mr Martin's evidence including his cross-examination by Mr Morris demonstrated was at most moveable rather than mobile. On the other hand precisely what the future will be for that complex is unclear. Accordingly as a matter of discretion I decline to adjudicate upon the issue of the dust management plan in the present state of uncertainty.
I turn then to the general discretionary considerations which were urged upon me by Mr Morris.
As appears from the narrative already given Mr Love has availed himself of the full 'suite' of remedies provided for a neighbour in circumstances in which he finds himself in the Planning and Environment Act. In addition to these declaratory proceedings he has brought proceedings for enforcement orders and also by way of a request to amend the permit. Mr Peake submitted and neither Mr Doyle nor Mr Morris denied, that these declaratory proceedings come on alone and without the enforcement order proceedings at the request of the permit holder. It would not have been competent for Mr Love to have proceeded with enforcement proceedings alone. In Kantor v Murrindindi Shire Council (1997) 18 AATR 285 Ashley J as he then was considered an application for inter alia declaratory relief to the effect that a permit or the extension of a permit was invalid. He made the declaration but refused to grant an injunction which was also sought. One of the arguments pressed upon His Honour was that the Court ought not entertain the application but rather should see it as appropriately dealt with in the Planning Division of the Administrative Appeals Tribunal which according to amendments to the planning legislation which had been introduced in 1987 was to be regarded as the 'one stop shop' in these matters. It was suggested that the matters for which relief was being sought could have been dealt with in the Tribunal by a declaration application pursuant to Section 14 of the Planning Appeals Act 1980. Section 14(1) of the Planning Appeals Act as it then stood provided that a person might make application to the Planning Division of the Administrative Appeals Division:

[102]

Whilst His Honour did not put it in quite these terms, in substance I take him to mean that it would not be possible under the guise of enforcement proceedings to mount a collateral attack upon a permit granted by a responsible authority or the endorsement of plans under such a permit. It would be necessary before obtaining enforcement orders to obtain an authoritative adjudication that the permit or the endorsement was invalid,. Hence as regard enforcement proceedings Mr Love has proceeded as he was obliged to do though absent the submission put by the permit holder, the enforcement order application could have been heard concurrently with the application for declaration.
The present situation inevitably invites comparison with the Doug Wade litigation which was referred to in passing by Mr Morris. See Thorne v Doug Wade Consultants Pty Ltd [1985] VicRp 48; [1985] VR 433. In the Doug Wade case Mr Wade's company constructed a rear extension to a Victorian terrace house in Parkville. Neighbours contended that the circumstances in which the permit was granted for the erection of this extension rendered it void. They further alleged that the permit holder, Mr Wade's company was guilty of fraud and sought an order that the extension be demolished. An application for urgent injunctive relief during the construction was refused and the matter came on for hearing before O'Bryan J following the completion of the extension. His Honour declined to find that the permit holder was guilty of any fraud. He concluded that the process for the grant of the permit was illegal and void but as a matter of discretion declined to make an order requiring demolition or to grant a declaration that the permit process had been void. An appeal to the Full Court was dismissed. As to the unsuccessful declaration application the Court reasoned that it would achieve nothing but merely place a blot on the Wade title.
The situation here, aside from the very different legal context in which the present proceedings have been brought, is quite different. The permit holder proceeded to construct something vastly different from what was contemplated by the Responsible Authority or one would suppose the Tribunal as constituting the materials recycling plant. In doing so it did not rely on any permit or any plan endorsement. In truth it simply 'chanced its arm'. Moreover as the evidence adduced from Mr Martin, expert engineer by Mr Morris in cross-examination indicated that whilst the removal of the extension to the rear of the Wade household would simply destroy that extension and probably damage the fabric of the original house as well, the materials recycling facility here is moveable in the sense that albeit at great expense and with great trouble, its components can be dismantled and usefully employed on another site. Moreover, there remains another possibility which does not appear to have been considered by the Courts in the Wade litigation that a retrospective permit might be granted for what has been erected either in exactly the form in which it now finds itself or in some modified form. In those circumstances I do not believe that granting the declarations sought here would be futile.
Again, whilst there has been delay on the part of Mr Love, it seemed far less inexcusable where as here all that has been done by the permit holder has been done before receiving any formal approval by the Responsible Authority albeit that it had received some sort of informal 'go ahead' from Council.
The declarations as to all matters except the dust management plan should be made.