Victorian Civil and Administrative Tribunal|2011-03-24

Makryllos v Port Phillip CC [2011] VCAT 735 (24 March 2011)

Ian Devlin, Glenda Devlin, Jennifer Wishart and Jeremy Lee

Makryllos v Port Phillip CC [2011] VCAT 735

Mr Adrian Finanzo, barrister, appeared on the instructions of the firm of Norton Rose, solicitors, for the requestors Frank Makryllos and Raelene Makryllos. He made oral submissions.

Ms Robyn Clinch, town planning officer of the City of Port Phillip appeared for the responsible authority. She made written and oral submissions.

Mr Tom Pikusa, barrister, appeared on the instructions of McLuskys, solicitors, for Ian Devlin and Glenda Devlin. He made oral submissions.

Mr Egils Stokans, solicitor of the firm of Russell Kennedy, solicitors, appeared for Michael Wishart and Jennifer Wishart. He made written and oral submissions.

Various plans photographs and other documents were tendered in evidence. I have inspected the land and locality.

Request under s 87A of the Planning and Environment Act 1987 for amendment of a permit.

Application under s 114 of that Act for an enforcement order.

Residential 1 Zone and subject to a Heritage Overlay under the Port Phillip Planning Scheme.

An "L" shaped area of land the main part of which is a "stem" of the "L" having a frontage of 10.06m to the south side of Patterson Street and a depth of 35.08m but with a "foot" of the "L" 10.6m long extending to the west and forming an abutment of 4.6m to the west side of Langridge Street with the total area being 399m2.

Lot 1 on Title Plan 323324J being the Land and Certificate of Title of Volume 8181 Folio 105.

These two cases were heard together. They concern dispute in relation permit conditions. The first proceeding is a request under s 87A of the Planning and Environment Act 1987 (PE Act) by Frank Makryllos and Raelene Makryllos seeking amendments to conditions in an existing permit. The second proceeding is an application for an enforcement order. The enforcement order application relates to some of the same permit conditions.
After hearing and considering these cases I announced my decision and gave oral reasons. However, the case raised a difficulty that has had at least some recent public exposure and I think that I should say something in relation to that matter. To do so I will need to say something of the history of these two cases.
Both cases concern the one piece of land. That land is 56 Patterson Street, Middle Park. It is the property of the requestors Frank and Raelene Makryllos. It has its principle frontage to the south side of Patterson Street close to, but not at its intersection with Langridge Street. Patterson Street runs east to west whereas Langridge Street runs north to south.
The property is located one frontage to the east of the intersection.
There is a residential property belonging to the Devlins on the southeast corner of the intersection. Its eastern side boundary is common with the western side boundary of the Makryllos land.
However, the Makryllos land is not rectangular, but rather has the appearance of a reversed "L". The main part of the property is a rectangle of land with a frontage of 10.06m to the south side of Patterson Street and with a depth of 35.08m. However the "foot" of the "L" extends to the west from the back of the Makryllos land to meet Langridge Street behind the rear boundary of the Devlin land. Thus the Makryllos land wraps around two sides of the Devlin land. It has common boundaries with the eastern side boundary of the Devlin land and the southern or rear boundary of that allotment. The "foot" of the "L" is 4.6m wide and 10.06m long. Its frontage to the east side of Langridge Street (at its "toe", so to speak) has a length of 4.6m. The "foot" of the "L" is sufficiently wide to accommodate a vehicle crossover and driveway and also to accommodate a vehicle garage.
Michael Wishart and Jennifer Wishart are also involved in these cases. They own the residential property fronting the west side of Langridge Street that is immediately to the south of the Makryllos property, including on the south side of the "foot" of the "L".
All these properties are located in a Residential 1 Zone and all of them are covered by a Heritage Overlay under the Port Phillip Planning Scheme. This immediate locality is part of a larger area stretching generally from Port Melbourne or South Melbourne west as far as St Kilda West to the east, and between Port Phillip Bay to the south and, in quite general terms, Albert Park Lake to the north. This larger tract is a valued heritage residential area. Although there are some more modern re-developments that have occurred in the meantime, it is a largely intact tract of late 19th century and early 20th century housing. It is an area of charm as well as heritage interest. Housing includes Victorian style as well as Federation and other forms of Edwardian residential development.
There is no clear demarcation of some of the areas of Victorian style housing from Edwardian. In some parts of that wider area the housing of one of those eras may predominate over the other but there is quite commonly an intermingling. However the periods are close together and the styles compliment each other rather than clash against each other and the intermingling can be seen as adding interest rather than being a detriment.
There are, of course, variations in style, architectural features and adornments within both the late Victorian style dwellings and those of the Edwardian style. As between the two (and leaving out the so called "Federation" style for the moment) it is generally true that such adornments as moulded metal lacework along the edges of verandahs are generally more elaborate in relation to Victorian dwellings, and rather more simple (and more frequently fabricated in timber) in relation to Edwardian style. This contrast between more elaborate and simpler adornments can be true of other features as between the styles of these eras. Both the Devlin house and Makryllos dwelling are substantially intact and attractive period dwellings that are of interest in themselves and which, in my opinion, contribute to the period streetscape and purposes of the Heritage Overlay area applicable to the area in which they are located.
I would judge the Makryllos house to be of a late Victorian rather than of an Edwardian style. I say this in spite of the evidence indicating that it was constructed in 1906, and thus fairly in the middle of the Edwardian period. There is, of course, no reason why a house cannot be built in that year in a late Victorian style, even if Edwardian styles were becoming popular at the same time.
Both of these houses are single storey, or at least they were until relatively recently. There has been a second storey addition at the rear of the Makryllos house. Planning permission was required for that alteration and addition. An application was made for such a permit and ultimately permission was granted in circumstances that I will refer too shortly. It is that permit in relation to which the Makryllos now seek amendment, and in relation to which the Devlins and others seek enforcement.
I have mentioned the Wishart house fronting the east side of Langridge Street with its northern side boundary being common with the rear southern boundary of the Makryllos land along the "sole" of the "foot". Their house has been assessed as "contributory" in heritage terms although it differs from the Patterson Street houses that I have been describing. It is of two storeys and said to be of an art deco style from the between wars period. I have an impression that this building and its façade to the street may have been changed somewhat. In fact, I thought at first that it may be a new building although the evidence indicates that such is not the case.

The main purpose for which planning permission was required was the alteration and extension to a house on land subject to the Heritage Overlay. The application was made, in the first place, to the responsible authority. There were objections from the Devlins and the Wisharts. Ultimately the decision of the responsible authority in relation to the application came before this Tribunal on review. I had nothing to do with that review proceeding.
The review was ultimately resolved by mediation. It appears that a good deal of time and trouble was devoted to achieving that mediated resolution.
Although the principle purpose of the application was for permission for the additions to the existing house, including a first floor addition towards its rear, there were other aspects. One of these was a proposed new and distinctly Victorian style front fence. The plans depict this fence as being constructed of metal with open structure metal posts at either end and either side of the gate and with the spaces between occupied by what might be described as fairly widely space but ornamented metal stakes or pickets or rods. The whole fence would be fairly elaborately ornamented and the vertical members finished off with arrow heads or fleurs de lys.
It was common ground before me that such a fence would be entirely suitable to the period and style of the host house. It is claimed, on behalf of the Devlins and the Wisharts that the proposed erection of such a fence was an important part of their acceptance of the agreement reached by mediation.
There was another embellishment depicted in the plans, included in the proposal and part of the agreement. The plans depicted a moulded metal lace work trim along the underside of the edge of the veranda. I agree that this embellishment, as depicted in the plans, would be entirely in keeping with the style and period of the house, and just the thing to set it off and complete the appearance of the front of the house.
A determination was made by the Tribunal on the basis of the successful mediation resulting in the grant of a permit subject to conditions. One of the conditions required construction to be in accordance with the plans to be approved by the responsible authority and endorsed as the plan pursuant to which the works are to be carried out. Plans were approved and endorsed, and they included the fence and lacework that I have been describing.
Building works have been carried out pursuant to the permit and the extension, including its first floor component, have been constructed. However, neither the fence nor the lacework have been carried out in accordance with the endorsed plans.
On the contrary, there is now a painted masonry fence on the Patterson Street frontage with masonry pillars at either end and on either side of the front gate. In the upper part of the space between those pillars, and above the lower masonry half of the balance of the fence, there are panels of narrow and closely spaced timber members painted in a dark colour. This fence has a very modern appearance and would certainly not be to everybody's taste. In particular, it is quite out of keeping with the style and the period of the house behind it and is, in my opinion, a most unfortunate development in its context.
The Devlins and the Wisharts strongly object to it. It is hardly surprising that they should be annoyed, indeed that they should find it galling, that such a fence should be erected, not only without planning permission required by the Heritage Overlay, but also contrary to the agreement reached after extensive mediation, and as a result, they claim, of concessions made in the course of mediation to reach agreement. There is, in the documents on the Tribunal's file, a account of an alleged claim that the proposal was to restore the house "to its former glory". If such a thing was claimed, then the fence that has been erected significantly detracts from the house, and its heritage interest (to say nothing of the streetscape and neighbourhood character) and is contrary to such an objective.
I assume that this fence was erected since the grant of the permit, although I am not completely certain on that point. However, whether erected before or after the permit, it would require planning permission under the Heritage Overlay provisions and there is no suggestion of any such permission existing for the existing fence in its present form.
Either way, the existing fence, and its continued existence, is certainly contrary to the agreement reached at mediation. The enforcement order application alleges contravention and seeks an order for the construction of a fence in accordance with the endorsed plans. The Makryllos request under s 87A PE Act seeks an amendment to the permit to allow a fence other than the one depicted in the endorsed plans. Although I initially assumed it sought permission for the fence that currently exists, the request in fact seeks approval for a more or less standard white picket fence generally similar to that in front of the Devlin house and of a style very common in the area in relation to both Victorian and Edwardian houses. As such I do not find it to be objectionable in terms of planning merits or the purposes of the Heritage Overlay.
This case is an example of a perceived problem that has been mentioned recently in the media. The concern is that a case before the Tribunal can go to mediation and be resolved by a settlement achieved through mediation where the parties have come to an agreement, perhaps after a good deal of time and effort, and perhaps after making concessions that they consider to be significant; only to have the permit applicant effectively go back on the deal. Having taking the benefit of a permit achieved by means of the mediated agreement. Should a permit holder then be able to back away from some aspects of the agreement that lead to the settlement in the first place? Can this be done, as in the present case, by acting on those parts of the permit and the endorsed plans that suit the permit holder who then comes back to the Tribunal with the request under s 87 or 87A PE Act seeking amendments to the permit to achieve relief from aspects that do not suit the permit holder? All this notwithstanding that these documents may have been important inducements whereby objectors came to an agreement rather than contesting the case and obtaining a decision from the Tribunal on its view of the merits.
A permit holder bringing such a request can submit to the Tribunal that it has not previously made a Tribunal determination on the original proposal, or any part of it. A settlement was reached because the parties were satisfied with the agreement in circumstances where the only role of the Tribunal was to determine that the mediated agreement is acceptable in terms of public planning. Although the Tribunal, in relation to a mediated settlement, has a role as guardian of the public interest, it might have come to a different conclusion if the matter had proceeded as a contest. One side or another may have conceded more, in the course of negotiations, than the Tribunal may have considered necessary. In the amendment request the Tribunal is asked to finally make a decision on planning merits, and in doing so it is not bound by the agreement reached in mediation.
Whilst mediation in planning proceedings is useful, and a proportion of cases are disposed of by that means; nevertheless this appears as one of the difficulties of applying mediation procedures in relation to planning proceedings. It is the gyst of mediation that it seeks not the correct or best solution to a case, but rather a solution that the parties are prepared to accept. That is fine in relation to what might be called private litigation where only the parties have an interest in the outcome. It is more difficult in public litigation where, in addition to the immediate parties, there is a public interest in the outcome.
The ability to go back on an agreement reached by mediation by means of an amendment request appears as a further difficulty in relation to planning mediation.
A permit does not have to be acted upon, and there is no sanction, or even wrong doing, in neglecting or deciding not to go ahead with a development or use for which a planning permit has been obtained. In this case the permit holders have acted on their permit and constructed their extension, I presume in accordance with their permit and its endorsed plans. However, they have not constructed the fence in accordance with the endorsed plans. I am not clear that there is anything in this permit that compels the construction of the fence depicted in the endorsed plans. I have not been pointed to a condition having that effect, and there is no agreement pursuant to s 173 PE Act that might compel the construction of the fence in the event of the major part of the development permission being acted upon. A breach of a condition or a section 173 agreement can be the basis of enforcement proceeding before this Tribunal, but in the absence of something that compels the fence in accordance with the endorsed plans, it appears to me that any remedies must be elsewhere.
A permit may allow a development which would otherwise be a contravention of the planning laws, without requiring that it, and every part of it must be carried out.
To go back on an agreement of this sort might be thought to be dishonourable, but that is a matter of conscience. The Tribunal can only make an enforcement order pursuant to the powers given to it in s 114 and subsequent sections in the PE Act. The making of an enforcement order must be founded on a contravention of planning laws, not on breach of an agreement unless it be an agreement pursuant to s 173 PE Act.
In other litigation a settlement agreement can amount to an enforceable contract. An agreement in relation to planning litigation, whether reached by mediation or otherwise, might conceivably also give rise to an enforceable contract. The difficulty is, however, that the Tribunal does not have power to enforce ordinary contracts (as opposed to s 173 agreements). Proceedings to enforce a contract have to be brought in court, not before the Tribunal.
I have before me a request for an amendment to allow a white picket fence in place of the one originally agreed to and depicted in the endorsed plans. I think I have to approach this request on the basis of answering the question as to whether the fence now proposed is acceptable on its planning merits. I note that the responsible authority considers that it is, and would consent the amendment sought. I have come to the conclusion that the fence originally approved, and the picket fence now sought, are both acceptable in terms of planning merit. In those circumstances I do not see that I have a basis at least on planning merit, for refusing the amendment to allow the white pickets. At the hearing I announced, that for such reasons then given, I would exceed to that amendment and decline to make an enforcement order requiring a fence in accordance with the currently endorsed plans.
Of course, none of this authorises the front fence presently standing on the land. I am assuming that it is to be removed voluntarily. I did say, in the course of the hearing, that my initial and tentative reaction to the existing fence was that I would not approve and would not grant amendment to allow it. Nothing was advanced at the hearing which would persuade me from that initial tentative view, and are now affirm it. In what I said at the hearing I may not have dealt with what should happen in relation to the presently existing fence. In the circumstances I think that I should, after all, make an enforcement order in relation to that existing fence requiring its demolition and removal within 60 days. I do not see that there is any special urgency about the matter, although it should be attended to. If there was good reason in doing so an application could be made under s 121 PE Act for amendment to the order to extend that time, but I do not think that it should be allowed to drag on.

Although the question of the verandah trim is relatively minor, compared with the front fence, it must still be dealt with. The moulded lacework in accordance with the endorsed plans has not been attached to the verandah. Instead, a much simpler form of trim has been added in the form of a row of small open squares formed by a long horizontal strip of timber or metal suspended from the upper part of the framework supporting the verandah in the position where Victorian lacework would normally appear. This relatively fine horizontal member is suspended by a series of vertical pieces of similar material so as to form a row of squares.
As noted, this is a much more simple trim, and more typical of Edwardian than Victorian decoration. Although the moulded metal lacework depicted in the endorsed plan would be a superior result, I pose to myself the question as to whether what is there should also be regarded as acceptable. In this connection I note that the feature is relatively minor, although I can well understand that it might be disappointing to the Wisharts and the Devlins who are expecting something different. It is likely to be less jarring and less disappointing to people who have not had their attention concentrated on the issue by these and earlier proceedings in relation to this house. Nevertheless, I do not determine the question on guesses as to what strangers might think. More to the point, I noticed on inspecting the area that verandah trim of the sort that now appears on this house is really quite common in the area and not limited to Edwardian as distinct from Victorian styles. As Mr Finanzo, the barrister appearing for the Makrylos pointed out; this is chronologically an Edwardian house, even if of late Victorian style and there does not appear to be a harden fast line, but rather a hazy transition, between the two periods and styles. I therefore said, for these reasons that I would allow that amendment and not make an enforcement order in relation to the verandah trim.

The concerns of the Wisharts concentrate particularly on the address of the "toe" of the "foot" of the "L" of the Makryllos land to Langridge Street. The property containing their home adjoins the "sole" of the "foot" and their frontage to Langridge Street is immediately beside that of the 4.6 wide driveway "toe". Their building contains two apartments. Theirs is the first floor one, but its ground floor entry is right at the northwest corner of their land, that is to say, right adjacent to the point where the southwest corner of the "foot" meets Langridge Street. Not only that, but the existing door and entrance are not square onto Langridge Street. The building has a distinct curve around from its alignment parallel to Langridge Street through ninety degrees to its north facing side wall. The wall above the entry describes this curve, and the glass door is through curved glass panels following that alignment. The effect is to give the impression of an entry and an outdoor threshold set at an angle into the rounded corner of the building. The result of this is that a tall wall or fence running along the southern boundary of the neighbouring property creates an impression of crowding in the entry and its curved alignment to the detriment of the entry and, in my opinion, to the streetscape and, to some extent, to the integrity of the design of the two storey building.
The "foot" connection between Langridge Street and the main part of the Makryllos property is wide enough for a vehicle entry and is being used for the purpose, with a garage set well back from the Langridge Street property line. There have been some changes in this situation. A brick wall containging a meter box has been constructed on the northern side of the street alignment of the foot but it is relatively short, and is insufficient to obstruct vehicle entry from Langridge Street onto the "foot". However, there is a temporary gate across the balance of the frontage with a return temporary fence from the southern end of the frontage back along the common boundary.
These temporary structures are not important as they are intended to be removed. However, the Makryllos request seeks modifications to the permit and endorsed plans to accommodate the existing new brick wall, so called "by-fold gates" across the balance of the opening with a return wall or fence.
No such features appear on the current endorsed plans. In fact, nothing is shown in this locality on those plans. In my opinion the proposal for the wall, gates and fence are all new developments not covered by existing permit. Further, in my opinion, it would be more appropriate for a new permit application to be made for structures in this locality which are an entirely new departure from the existing permit and plans.
As with the picket fence, and indeed the verandah trim, the responsible authority has indicated to support for these proposed structures. It would consent to me amending the plan if I have thought that was the appropriate way of proceeding.
It is true that the new brick wall has been constructed without planning permission, and that such permission is required. That is a of contravention, but I indicated that I would not make an enforcement order requiring its removal at this stage. Rather I thought it appropriate for an application to be made for permission and that the wall should only be subject to an enforcement order for removal in the event that such permission prove impossible to obtain.
The other proposed permanent features are not in place and they could be the subject of the same permit application. However, I did offer some comments to the effect that I consider a high gate and fence to the street alignment would be intrusive, unneighbourly and might well be thought to be a poor proposal that might be refused planning permission on streetscape and amenity, but more to the point, heritage grounds. That would because of its intrusion upon the aspect and entrance of the adjoining building, notwithstanding that there might be no protrusion beyond the title boundary limits of the Makryllos land.
In the course of the hearing there was some discussion of other possibilities of how to fence and gate at this entry to the Makryllos land might be handled, without intruding so much. One possibility was that a new gate set at an oblique angle from the existing new brick wall to the vicinity the masonry wall of the rear curve. A variation would be to set a gate at an angle, but not so greater one as that. This would leave a small triangle of Makryllos land outside the fence and gate.
Another possibility was also discussed which might be adopted in conjunction with the first expedient or possibly instead of it. This idea was to avoid a high solid wall running forward to the building line by constructing instead a so called "palisade" fence of spaced vertical metal members to be coloured black or some unobtrusive colour so that the structure would appear as almost transparent with the views through to some landscape planting that already exists on the inside of the Makryllos property in that area.
For these reasons as said I would not amend the permit or make enforcement orders at this stage in relation to the enclosure of the property at the Langridge street frontage.

There are two other matters in relation to which enforcement orders were originally sought. One related to rear facing windows on the new extension to the Makryllos property. However, Mr Stokans, the solicitor who appeared on behalf of the Wisharts who were the sponsors of concern in this respect, abandoned that matter.
The other matter was some external lights on a wall to illuminate a sideway on the west side, and down the western boundary of the Makryllos property. The Devlins have complained that light from this source is insufficiently baffled so that it enters habitable room windows on their side of the common boundary. The lights are not fitted with automatic cut off devices to turn them on and off with the coming and going of people along the sideway. It was alleged that these lights have simply been left on for extended periods. It was also conceded that this practice had stopped when complaints had been made. That seems to indicate consideration to the concerns of neighbours which might usefully continue in the future by the fitting an automatic shut off device or by turning the lights on only when, and for as long as, the sideway is being used.
In any event I do not propose to make an enforcement order in relation to this question because I have not been satisfied that there is any contravention of planning laws involved which could found the making of such an order. If it became a real problem, this is probably a matter falling within the civil law of nuisance, although the parties would certainly be better advised to accommodate each other than to go to court over such a matter.

The same might be said for some disagreements that have arisen in relation to whether the Makryllos are obliged to paint the surface of a new wall near the common boundary and facing into the Devlin property. It is said that such painting is required by the permit and endorsed plans. However, access to the Devlin land would be necessary to carry out the painting. The Devlins complained that the painting had not been done and that they have had to erected a bamboo screen over the area. The Makryllos explained that they have not carried out the painting work because they have been denied access for that purpose. In turn, they complain that the surface of the wall is not on the common boundary, but a short distance inside it with a fence on the actual boundary line. They complain that attachments have been made to their wall, presumably for the purposes of attaching the bamboo screens, and that this is unauthorised and a trespass.
Whilst urging the parties to come to a sensible and neighbourly accommodation in relation to these matters, and to avoid court litigation over such things, I said that I would not make an enforcement order in relation to the painting work where the reason for its not having been carried out was that the beneficiaries of the work denied access for the purpose of it being completed. With consent for access denied, entry would appear as a trespass, and I am not prepared to make an enforcement order requiring the breaking of the law. It could be different if consent to access was given.

Ian Devlin, Glenda Devlin, Jennifer Wishart and Jeremy Lee

Construction of fence without required planning permit.

By no later than 60 days from the date of this order the Respondents must:

Demolish and remove the existing front fence on the land which is constructed of masonry and narrow vertical strips.

The applicants must serve a copy of this order on the owner and occupier of the land, and any other person against whom the order is made, pursuant to section 140 of the Victorian Civil and Administrative Tribunal Act 1998.

Environment Act 1987

Makryllos v Port Phillip CC [2011] VCAT 735

At a glance

Court

Decision date

Source

Judgment (25 paragraphs)

Makryllos v Port Phillip CC [2011] VCAT 735 (24 March 2011)

Parties

Legislation Cited (1)