Mefill v Brimbank CC [2001] VCAT 2385 (15 October 2001)

Extension of time, weight to be given, change in new planning scheme and new planning provisions

MEDIUM NEUTRAL CITATION [2001] VCAT 2385

SUBJECT LAND: Lot 16 250-254 Sunshine Avenue, Kealba

1. The Responsible Authority's decision is set aside.

2. The Tribunal orders the time to commence the development is extended by 12 months to 9 June 2002.

Mr R. Bardin, Town Planner represented the Responsible Authority.

Mr M. Townsend of Counsel represented the Australian Pacific Airports (Melbourne) Pty. Ltd.

Mr C. J. Canavan, QC with Mr C. Townshend of Counsel represented the Applicant. for review. Mr Canavan called evidence from Mr P. Fearnside, Acoustic Engineer.

1. This is an Application for Review pursuant to Section 81 (b) of the Planning and Environment Act concerning the failure of the Responsible Authority to extend the time for commencement within one month after the request was made. A letter from John Anile Pty. Ltd. explained that this application referred to the failure to extend the time for commencement of the development.

2. On 9 June 1999 the Responsible Authority issued permit number P980356 at the direction of the Victorian Civil & Administrative Tribunal. The permit was issued for development and use of the land for 25 flats in 2, 3 storey buildings over a basement car park

3. At the time the Application for Review No. 1998/71567 was determined by the Tribunal the land was zoned Reserved Living and there were no overlay controls. At that time a permit was required for use and development of flats (more than one dwelling on a lot).

4. On 29 July 1999 the new VPP version Brimbank Planning Scheme was gazetted. This new planning scheme included the subject site in a Residential 1 zone, it also included the land in an Airport Environs Overlay AEO2 (Clause 45.02) and it introduced new state policy for air fields and local policies.

5. The subject site is a large lot in a fairly recent residential subdivision of surplus land adjacent to the Kealba Secondary College. This site is served by a one way service road abutting Sunshine Avenue. Sunshine Avenue is a busy metropolitan arterial road. The site has an area of about 1984 square metres. It has a frontage of 41.95 metres and a depth of 47.3 metres. The site is vacant and essentially flat. The Tribunal was told the layout of the subdivision was apparently the result of extensive negotiations between the Council and the Developer. The Tribunal was told by M. Bardin that the intention of the layout of the subdivision was to provide an opportunity for a range of housing styles. The development on this subdivision tends to reflect this variety as there are large, medium and small lots with different dwelling styles and densities.

6. Under the current Brimbank Planning Scheme a permit is required to construct 2 or more dwellings on a lot pursuant to Clause 32.01-4. There is no requirement for a permit for residential "use".

7. The site is located in an Airport Environs Overlay AEO2. The purposes of this Overlay in Clause 45.02 are:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To identify areas which are or will be subject to high levels of aircraft noise, including areas where the use of land for uses sensitive to aircraft noise will need to be restricted

To ensure that land use and development are compatible with the operation of airports in accordance with the appropriate airport strategy or master plan and with safe air navigation for aircraft approaching and departing the airfield.

To assist in shielding people from the impact of aircraft noise by requiring appropriate noise attenuation measures in new dwellings and other noise sensitive buildings.

To limit the number of people residing in the area or likely to be subject to significant levels of aircraft noise. (Tribunal emphasis)

8. Clause 45.02-2 states "any new building must be constructed so as to comply with any noise attenuation measures required by Section 3 of Australian Standard AS2021-2000, acoustics-aircraft noise intrusion-building siting and construction, issued by Standards Australia International Limited. "

9. Clause 45.02-4 refers to Decision Guidelines (in addition to Clause 65). This requires the Responsible Authority to consider as appropriate various matters including

* Whether the proposal will result in an increase in the number of

* dwellings and people affected by aircraft noise.

* Whether the proposal is compatible with the present and future operation of the airport in accordance with the appropriate airport strategy or master plan.

* Whether the design of the building incorporates appropriate noise attenuation measures.

* The views of the airport owner or in the case of Melbourne Airport, the lease of the airport leased for Melbourne Airport in accordance with the Commonwealth Airports Act 1996

10. Schedule 2 to the Airport Environs Overlay states:

An application to use land for the following uses must be referred to the airport owner under Section 55 of the Act unless in the opinion of the Responsible Authority the proposal satisfies requirements or conditions previously agreed in writing between the Responsible Authority and the airport owner:

Clause 18.04 of the State Section of the Planning Scheme refers to air fields. This provision states:

To facilitate the siting of airfields and extensions to airfields, restrict incompatible land use and development in the vicinity of airfields, and recognise and strengthen the role of airfields as focal points with in the State's economic and transport infrastructure.

New airfields should not be located in areas which have greater long-term value to the community for other purposes.

The location of airfields, existing and potential development nearby, and the land-based transport system required to serve them should be planned as an integrated operation

The visual amenity and impact of any use or development of land on the approaches to an airfield should be planned to be consistent with the status of the airfield.

* Preclude any new use or development which could prejudice the safety or efficiency of an airfield.

* Take into account the detrimental effects of aircraft operations (such as noise) in regulating and restricting the use and development of affected land.

* Preclude any new use or development which could prejudice future extensions to an existing airfield or aeronautical operations in accordance with an approved strategy or master plan for that airfield.

Planning for areas around Melbourne Airport should:

* Strengthen the role of Melbourne Airport as a key focal point within the State's economic and transport infrastructure.

* Ensure the effective and competitive operation of Melbourne Airport at both nation and international levels.

* Ensure any new use or development does not prejudice the optimum usage of Melbourne Airport.

* Ensure any new use or development does not prejudice the curfew-free operation of Melbourne Airport.

Planning and responsible authorities must have regard to the Melbourne Airport Master Plan (Australia Pacific Airports (Melbourne) Pty Ltd, December 1998), the Melbourne airport Strategy (Government of Victoria/Federal Airports Corporation, approved 1990) and its associated Final Environmental Impact Statement in relation to planning decisions affecting land in the vicinity of the Melbourne Airport. In making decisions, reference should be made to the Melbourne Airport Ultimate Capacity (1998) Australian Noise Exposure Forecast (ANEF) endorsed for technical accuracy by the Manager, Environment Monitoring Section, Air Services Australia, Canberra on 25/9/98.

12. The Tribunal was provided with 3 previous decisions

* Kantor and others -v- Murandindi Shire 18AATR285 Ashley J (Kantor decision).

* Joe Cassar and Australian Pacific Airport (Melbourne) Pty Ltd and City of Brimbank 1999/104906 (Cassar decision).

* Australian Pacific Airport (Melbourne) Pty Ltd -v- A. Gokklar and City of Hume (1999/11769) (Gokklar decision).

13. The Tribunal also referred to its own decision in P. W. & J. A. Graham -v- Australian Pacific Airport (Melbourne) Pty Ltd -v- Brimbank City Council (2000/94318) and V & M Fiorenza -v- Melbourne Pacific Airport (Melbourne) Pty Ltd -v- Brimbank City Council 2000/94393.

14. All parties make particular reference to the Kantor decision and during the hearing all parties agreed that the principal issue of contention in this Application for Review referred to the effect of a change in planning policy. Whilst Mr Bardin provided a more extensive coverage of councils grounds for opposing the extension of time, these were not critical compared to the central issue.

15. Mr Bardin argued the proposed development is clearly a sensitive use that would develop the site to a high density, thus locating more persons on the land than if it were to be developed with conventional single dwellings. He argued to allow this development to now proceed would be at odds with the purpose of the overlay that recognises that there is a need "to limit the number of people residing in the area or likely to be subject to significant levels of aircraft noise".

16. Mr Bardin argued Melbourne Airport is the major airfield for Melbourne and Victoria and a key component of the States transport infrastructure. He argued planning for areas around the airport must acknowledge its role and carefully consider any proposal that might prejudice its safety or efficiency or its present curfew-free operation.

17. Mr Bardin argued the proposal would definitely result in an increase in the number of dwellings and the people effected by aircraft noise. He argued this represents a six fold increase in the number of dwellings that might reasonably be expected on the land in the event that it was developed for conventional residential development.

18. Mr Bardin also referred to the Melbourne Airport master plan as a guide to future planning not only for the airport but land uses around it and in those areas affected by its operations. He argued the planning scheme controls that are now found in the new format schemes around the airport have been arrived at over a number of years of strategic planning and environmental investigation.

19. Mr Bardin also referred to condition 14 of the permit which required the building to be constructed of materials to minimise the transmission of aircraft noise. However he argued that what is critical in this case is not the number of dwellings and the number of residents, rather whether or not they can be constructed in a suitable manner.

20. Mr Bardin referred to an agreement reached between Melbourne Airport and the Responsible Authority deriving an agreement which is alluded to in the AEO2 overlay. He advised the agreement works as follows:

* All applications located within the AEO2 area that are located outside the 15 ANEF do not require referral to the Melbourne Airport.

* Melbourne Airport will not object to multi-unit development located within the 15-20 ANEF provided all lots are 450 square metres or larger.

* Melbourne Airport will object to multi-unit development within the 20 ANEF contour. He argued that Melbourne Airport opposes this proposal as it falls with in the second category

21. Mr Bardin referred to the Melbourne Airport Master Plan and also argued that when the original subdivision (of which the site is a part) was approved there was no consideration given to the effect of aircraft noise.

22. Mr Townsend for the Melbourne Airport made a detailed submission of the history and background to the application and the background to the Melbourne Airport Overlay Controls. Mr Townsend argued that Brimbank Density Controls have been endorsed by the Tribunal and referred to the Casser decision at 11 Georgia Place, Kealba, a site which is around the corner from the subject site.

23. Mr Townsend was also highly critical of Mr Fearnside's noise evidence. He claimed it is the density of the development that APAM is concerned about and Mr Fearnside's noise estimation appear to be inconsistent with the calculations required by the Australian Standard. He argued that the present noise measurements identified by Mr Fearnside are of no consequence in this application because the noise contours are concerned with current and proposed or anticipated noise levels when further runways are added to the Melbourne Airport.

24. Mr Townsend referred to the Casser decision which stated:

"Ms Quigley's argument that the ANEF system should be the starting point for land use planning for areas affected by aircraft noise. A cautious approach is warranted. Despite the suggestion in the table to ASA2021 that the proposed use is acceptable, it is not appropriate to encourage higher density development in areas were significant numbers of people will be either seriously or moderately affected by aircraft noise."

25. Mr Townsend concluded that in that case as in this case the accepted policy of urban consolidation was "trumped" by the over riding need to protect infrastructure of statewide, if not national importance. He invited the Tribunal to make a similar ruling.

26. At the commencement of the hearing Mr Townsend had raised an issue whether the APAM were entitled to be a party at this proceeding. Mr Canavan did not oppose APAM's attendance and claimed that any legal matter arising could be determined by the tribunal. Mr Townsend argued that it was satisfied with the Tribunal, ie. a non legal member determining legal matters provided it found that the use was inappropriate in this location.

27. Mr Canavan argued the Tribunal has a broad discretion in determining whether time should be extended under the existing permit. He argued in the present case the Applicant for Review has the benefit of an approved development. He argued the question is limited to whether in the circumstances of this application the extension of time is consistent with the objectives of the Planning and Environment Act 1987. He argued it is an objective of planning to facilitate development and submitted that discretion should be exercised in favour of an extension unless there has been a change in planning policy which casts doubt as to whether the same approval would issue if a fresh permit application was made.

28. Mr Canavan referred to the Kantor decision. He also argued that at the time the original permit application was considered permission was required for use. He argued under the provision of the current planning scheme only development approval is required.

29. Mr Canavan also argued that in the present case the Tribunal should place considerable weight on the fact that this is the first extension of time sought for the permit.

30. Mr Canavan stated the permit issued after a favourable report from the relevant Council Officer and a decision by the Victorian Civil and Administrative Tribunal after hearing town planning evidence. He claimed the evidence before the tribunal included an explanation of the relevant proposed new format planning scheme provisions including the Airport Environs Overlay. He stated condition 14 of the permit attends to the substantive requirements of the AEO as it applied to the Application for Permit. Mr Canavan tabled a copy of evidence given by Mr Ian Walters, Town Planner, in Application for Review 1998/71567. He referred to page 9 of that evidence which specifically referred to the proposal to include the site in an Airport Environs Overlay and part of that evidence stated "under this control no permit will be required for buildings but they must comply with noise attenuation measures in AS2021-1994." Mr Walters also stated in his evidence at page 10 " the site is in an almost fully developed residential area complete with schools and other sensitive uses. If aircraft noise is indeed a problem it could be addressed by way of an appropriate condition requiring noise attenuation within buildings."

31. Mr Canavan argued that introduction of the new format planning scheme, of itself, does not constitute a significant change in planning policy so far as it affects this application. He claimed the land is included in a Residential 1 zone, the purposes of which is to encourage a diversity of dwelling types. He argued the subject site is, in effect, an in-fill site, zoned for residential use, in a developed residential area. He also argued the use is as of right under the Residential 1 zone. He claimed if anything this is a change in policy which supports a permit extension.

32. Mr Canavan claimed the other difference in policy is the formal application of Airport Environs Overlay (Clause 45.02, Schedule 2). He submitted that the application of the overlay would not counter against the permit issuing for the same development on the same site, because:

* The AEO was a seriously entertained planning proposal when the permit application was considered by the Tribunal

* the potential impact of aircraft noise was considered by the Tribunal in determining that a permit should be granted by inserting a condition on the permit which provides for materials to minimise the transmission of aircraft noise, to the satisfaction of the Responsible Authority, to meet the requirements of Australian Standard 2021.

* The AEO2 Clause 45.02 similarly provides that any new building must be constructed so as to comply with any noise attenuation measures required by section 3 of Australian Standard 2021-2000, acoustic-airport noise intrusion-building siting and construction, issued by Standards Australia International Ltd. He argued there had been no change to the relevant Australian Standard.

33. Mr Canavan also argued there is no requirement that a new application for multi dwelling development is to be referred to the airport owner under Section 55 of the Planning and Environment Act because no use permission is required for a dwelling in the Residential 1 zone.

34. Mr Canavan referred to evidence from Mr Fearnside, an acoustic engineer, which confirmed that the buildings can be constructed so as to comply with the relevant standard and that aircraft noise will not diminish the residential amenity of the site. Mr Fearnside's evidence was:

"The level of external amenities will be determined more by road traffic than aircraft noise. The site is adjacent to Sunshine Avenue a primary road with two lanes in each direction and a medium strip and service road".

And at paragraph 6.2 "The development has been well planned to provide courtyards and public space shielded from road traffic noise. Aircraft noise will not have an impact on the enjoyment of the external areas."

He also stated "there are a number of similar medium density developments in close proximity to the development and considered that the design of the development is consistent with other developments in the area".

"7.1 The subject site is located adjacent to ANEF 15 and is classified as "acceptable" for residential development

7.2 The proposed residential development will provide a suitable internal noise environment with conventional building construction with windows open or closed.

7.3 Aircraft noise will not have an impact on the enjoyment of the external areas.

7.4 It is my opinion that the subject site is suitable for a residential development of this type".

36. Mr Canavan also argued that the permit was not being warehoused, he argued that the permit is just over two years old and in that period the building industry had experienced major pressure through the introduction of the Goods and Services Tax and the construction industry has experienced boom conditions. He submitted the question of warehousing has more relevance where the permit is being extended for lengthy periods and where the existence of the permission militates against similar approvals on other land. He advised that his client only needed a further 9 month extension from the current date. He argued the Tribunal should have particular note of the economic circumstances of the permit holder and the relatively substantial scale of the development. He argued that a development of this scale may require a longer lead time than say a dual occupancy.

37. Mr Canavan also agued that there is a high degree of probability that, in a fresh application the development would be permitted. He argued the range of considerations applied by the Tribunal in 1999 is the same as those which would apply to the new permit. He acknowledged the Airport Environs Overlay and that whilst it was a seriously entertained planning proposal the controls imposed under AEO2 did not prohibit the development.

38. The Tribunal considers that the introduction of new planning controls and policy relating to the Airport Environs Overlay is not of a substance to warrant refusal of an application for extension of time for commencement of development. The Tribunal accepts that the introduction of Clause 18.04 in the State Policy and Clause 45-02 in the Local section of the Planning Scheme has formalised the need to (where applicable) prohibit or place restriction on the form of development and place greater controls on methods of construction. The provisions in AEO2, do not prohibit residential use and development in this area.

39. The Tribunal has had regard to the objectives of Clause 45.02, and notes the much more restrictive requirements on development of sites effected by the AEO1 Overlay, it notes the provision of the AEO1 are different to the provision of the AEO2 Overlay. The Tribunal notes the only requirement, in the AEO2 Overlay is to refer applications for use to the Airport Owner. Therefore consideration of a medium density proposal would require assessment of a variety of issues including the AEO2 overlay, the relationship of the AEF 15 contour and other issues such as urban consolidation, impact on the character of the area, siting of buildings, open space provision, car parking and traffic issues, but is not subject to referral under Section 55 of the Act.

40. Whilst a Responsible Authority and the airport owner may have adopted a different practice to that required by the AEO2 Overlay that is not what the planning scheme requires. If the airport owner and the Responsible Authority wish to formalise the referral of all development and use applications in the AEO1 and AEO2 Overlay areas it is suggested they may wish to explore more formal ways to incorporate the "agreement" in the Planning Scheme.

41. The Tribunal does not consider the introduction of the new planning controls, State Policy or Clause 45-02 is of substance to necessarily prohibit medium density development of the site nor does it pose a reason to limit development below a density mentioned in the "agreement" between the Responsible Authority and the airport owner. The Tribunal notes the "agreement" referred to in Schedule 2 but the details of the agreement are not specified in the Planning Scheme.

42. The Tribunal is satisfied on the basis of evidence from Mr Fearnside that the site, by virtue of its location abutting a metropolitan arterial road and its placement on the south western periphery of the ANEF 15 contour that it is not subject to "significant" levels of aircraft noise.

43. It is also satisfied, based on the evidence of Mr Fearnside, that the building has been designed for appropriate noise attenuation.

44. The Tribunal visited the subject site following the review hearing and observed recent residential development had taken place in the subdivision. It noted dwellings, whether on individual lots or otherwise tended to be of a conventional density or medium density variety. The Tribunal also noted the site at 11 Georgia Place (which was the subject of the Cassar decision) was vacant although it seemed to be sandwiched between development which was higher and or larger than many conventional detached houses outside the subdivision. The Cassar decision seems to have less relevance in this case due to recent development in the neighbourhood.

45. The Tribunal does not consider it necessary to determine the appropriateness of the residential use because a residential use is as of right in a Residential 1 zone. It is a fact contained with in the Brimbank Planning Scheme. Whilst a permit was required for use and development in a Reserved Living Zone under the previous Brimbank planning scheme that is no longer the case

46. The Tribunal also took note of the decision by Ms Monk in Meffill Pty Ltd (1998/71567). It notes Ms Monk made an oral decision in that case and only provided a summary of her reasons. She was primarily concerned about neighbourhood character issues. It is noted Ms Monk made no mention in her decision of the proposed overlay although she did impose condition 14 on the permit which addressed the need to meet AS2021-1994. It is noted AS2021-1994 has now been superseded by AS2021-2000.

47. Having visited the site and noting the various site influences including the divided arterial road (Sunshine Avenue) and the form of development which included two, two storey medium density development in the neighbourhood the Tribunal finds that if there has been any substantive change since the original Tribunal decision it has been to reinforce residential development at a variety of densities; this would seem to be commensurate with the purposes of the Residential 1 zone.

48. The Tribunal also examined pages 69 & 70 of the Airport Master Plan as tabled by Mr Townsend which stated:

"The co-operative planning approach between the State Government, Local Municipalities and Melbourne Airport has been directed towards protecting the future development potential of the Airport whereby the State Government has introduced interim land use planning controls (MAEA1) to ensure that land use and development within the 25 ANEF contour are compatible with the operation of the Airport and the long term strategic plan for the Airport. In the Building site Acceptability Table in Australian Standard AS2021-1994, houses, home units, flats and caravan parks are unacceptable in the ANEF zone greater than 25 ANEF;. The purpose of the planning controls includes, among other things, measures to:

* Assist in shielding people from the impact of aircraft noise by requiring appropriate noise attenuation measures in new dwellings and other noise sensitive buildings;

* Limit the number of people residing in the area or likely to be subject to significant levels of aircraft noise; and

* Require permits for certain developments and the subdivision of land with provision for referrals to the Airport operator.

As described in Section 9.1 it is now proposed to adopt the controls related to MAEA2 requiring the incorporation of noise control features in the construction of residences or community facilities for areas between the 20 and 25 ANEF contours. The proposed overlay controls superimposed on the ANEF are shown in Figure 9.2. The boundaries for both controls are the same as determined previously from the 1993 ANEF.

The Airport operator has acted as a Referral Authority on aircraft noise issues associated with any development in the noise affected areas of the Airport Environs."

49. There was nothing in the Master Plan which placed a prohibition on increases in density of dwellings in the ANEF 15 contour. The ANEF 15 contour was not mentioned at all. Rather it refers to, a need for noise control measures in the construction of dwellings or community facilities in areas between the 20 and 25 ANEF contours.

50. There was discussion at the latter period of the hearing about a desire to have additional time to complete the project. The Tribunal is satisfied there is time to complete the project. If during the construction phase, delays occur, the applicant can make application to extend the time to complete.

51. Accordingly the Tribunal considers that there has been little policy difference to substantiate a rejection of the application for extension of time.