Victorian Civil and Administrative Tribunal|2003-09-04|Before: Mr Adrian J, Stuart Morris J

Melbourne CC v Becton [2003] VCAT 1077 (4 September 2003)

Planning - Eastside Precinct East Melbourne - approval of concept plan - amendment of plans approved under permit - section 62(3) of Planning and Environment Act 1987 - jurisdictional facts - consistency of amendment with permit - legitimate expectations

Pursuant to section 149B of the Planning and Environment Act 1987 I declare:

1 The decision of the Minister for Planning, as responsible authority pursuant to the Melbourne Planning Scheme, made on 8 February 2002 to approve the Concept Plan dated 21 December 2001 as an amendment to the Concept Plan approved under Permit No 141606 is void.

2 The decision of the Minister for Planning, as responsible authority pursuant to the Melbourne Planning Scheme, made on 7 May 2002 to approve the Residential Building Stage 7, Eastside Precinct, East Melbourne Development Plan dated May 2002 as the development plan under Permit No 141606 is void.

3 The approved concept plan under Permit No 141606 pursuant to the Melbourne Planning Scheme is the Concept Plan dated May 1993.

4 Any development of Stage 7 of Eastside Precinct, East Melbourne in reliance on the said approval of the development plan is unlawful.

1 The Melbourne City Council (the council) has applied to the tribunal for declarations under section 149B [1] of the Planning and Environment Act 1987 (the Act) in relation to decisions of the Minister for Planning (the Minister), as responsible authority pursuant to the Melbourne Planning Scheme, concerning the approval of a concept plan and a development plan pursuant to Planning Permit No 141606 (the permit).

2 The permit applies to land known as the Eastside Precinct (Eastside), which is generally on the south-west corner of Jolimont Road and Wellington Parade South, East Melbourne (the land).

3 The key issue in the case is whether the Minister has validly approved a concept plan pursuant to the permit which would permit the development of three towers, up to 57 metres high, on the western part of the land.

4 The application has been contested by both the Minister and by Becton Corporation Pty Ltd (Becton). Becton has an interest in the land or, at least, has certain contractual rights in respect of the development of the land.

5 The tribunal was informed that the application is supported by various bodies corporate which represent residents of the existing low rise portions of the Eastside residential development. These bodies corporate were joined as co-applicants by order made on 18 July 2003[2].

6 I propose to first set out my findings of fact. Then I will briefly outline the parties' submissions. I will then identify and discuss the key factual and legal issues. Finally I will consider whether the council has made out its application for relief.

7 Like most good stories, the facts are best recorded chronologically.

8 For many decades governments have had a vision for the redevelopment of the Jolimont railway yards. In the early 1990s the possibility emerged of relocating some of the railway holding yards so as to free up land for redevelopment. Various schemes were analysed. One of the schemes became known as Eastside and was subject of more intensive planning consideration, led by the government's Major Projects Unit. This led to the then Minister preparing Amendment L71 to the Melbourne Planning Scheme so as to facilitate the redevelopment of the precinct. As was common at the time, this amendment contained a comprehensive code designed to govern the redevelopment of the land, without the need for planning permits to be obtained.

9 On 8 January 1992 the council considered the Minister's proposal. The council's officer reported that the proposed amendment contained guidelines which would govern the form of the development. It also identified Becton as the developer selected by the government to proceed with the project. Generally the council supported the amendment.

10 On 11 March 1992 the Minister approved Amendment L71. This amendment introduced, or modified, various clauses of the Melbourne Planning Scheme, and set out self contained provisions to govern the redevelopment of the land.

11 The objectives of the Eastside Precinct, as set out in the scheme by Amendment L71, were:

* To encourage medium to high density housing offering a mix of residential styles including apartments and town houses, serviced apartments, one bedroom flats, bedsitters and home occupation.

* To encourage specialist office accommodation within the residential fabric with more intensive office development generally fronting Jolimont Road and Wellington Parade South.

* To ensure a generally low to medium rise building form compatible with surrounding uses and developments.

* To encourage the spacing of buildings in a manner which assists the retention of views into and out of the central city.

* To encourage an urban form that is derived from a pattern of streets, garden squares and laneways consistent with the character of Jolimont and East Melbourne.

12 In order to implement these objectives the scheme provided that land within the Eastside Precinct may only be used or developed in accordance with certain guidelines for development. Twenty-two different guidelines were set forth. The seventh guideline is the most relevant. It provided:

Development within the precinct is to be generally low to medium rise, compatible with development in the existing Jolimont area to the east. However the scale of building should be varied to suit position and outlook, with key sites being recognised in the urban form and buildings up to 8 storeys permitted on these sites. In addition, the site at the western end of the precinct may contain a higher building up to 54 metres.

13 The scheme also provided that no building or works may be constructed in the precinct until a Concept Plan for the overall development of the precinct had been prepared to the satisfaction of the council and the responsible authority (which has at all times been the Minister). Further, the scheme provided that the concept plan must be generally in accordance with the guidelines for development and must also show certain specified things, such as land uses, access points, staging and general building envelopes.

14 The use of a concept plan in a planning approval is a common device, as the approval of a concept plan gives form and content to the permission which is granted. Usually planning approvals utilising concept plans also require the submission of development plans, generally in accordance with the concept plan, which then detail the precise nature of the permitted development.

15 The planning approval given to the Eastside project in 1992 was unusual in that a concept plan did not form part of the approval (that is, it was not contained within the planning scheme), but was a document to be submitted and approved after the approval of Amendment L71. However in order to ensure that the approval did have form and content, and was not completely open-ended, the scheme provisions required the Concept Plan to be generally in accordance with the development guidelines.

16 A further safeguard was provided in the amendment in relation to the Concept Plan. This was the requirement that the Concept Plan be approved, not only by the responsible authority (the Minister), but also by the council, which was the municipal authority in relation to the land. Indeed, when the council's officer reported to the council in February 1992, before the approval of the amendment, he noted that the original draft of the amendment only required the council to be consulted in relation to the Concept Plan and that, following negotiations, this clause was changed to require council satisfaction with the Concept Plan prior to any development.

17 Amendment L71 also introduced another unusual provision into the scheme, possibly as a consequence of requiring the Concept Plan to be approved by both the Minister and the council. This unusual provision was in the following terms:

If the Concept Plan is not satisfactory to either the City of Melbourne or to the Responsible Authority, then the owner must be advised of the reason or reasons. Unless this advice is provided in writing to the owner within 3 weeks of the plan being submitted, then the plan is deemed to be satisfactory.

18 The amendment also introduced a provision into the scheme to deal with amendments to the Concept Plan. This provision, which followed immediately after the provision quoted above, was in the following terms:

At the request or with the consent of the owner, the plan may be amended to the satisfaction of the Responsible Authority.

19 The amendment then provided that, after the Concept Plan had been prepared to the satisfaction of the council and the Minister and before construction work may begin on the land, a development plan must be prepared to the satisfaction of the responsible authority (the Minister). The provision required the council to be consulted before the Minister gave approval to this plan. Further there was the usual provision that the development plan be generally in accordance with the concept plan. There was also a provision which permitted the amendment of the development plan, in the following terms:

At the request or with the consent of the owner, the plan may be amended to the satisfaction of the Responsible Authority.

20 On 2 July 1992 a Concept Plan was endorsed in relation to the Eastside Precinct. There is no evidence as to whether or not this plan was to the satisfaction of both the council and the Minister, but I infer that it was. This plan showed low to medium rise development over the bulk of the site, except for Site G, at the western end of the site, where a single building was shown, having a building height of a maximum of 54 metres, and being identified as either residential or hotel or car park.

21 On 8 January 1993 an amended concept plan was further endorsed, as a modified endorsed plan. The modifications involved certain changes in building footprints, but did not involve any fundamental changes.

22 On 10 May 1993 a further amended concept plan was endorsed, also as a modified endorsed plan. The modifications made further changes to building footprints; but, once again, there was no fundamental change to the plan which had been approved in July the previous year. A copy of this amended concept plan (the May 1993 Concept Plan) is annexed to this decision.

23 During the period from approximately 1993 to 1996 the eastern half of the land was developed in accordance with the May 1993 Concept Plan, largely with low to medium rise residential development. These apartments have been sold and are now occupied by residents who are represented by the various bodies corporate. However the western parts of sites E and F, together with site G, have remained undeveloped.

24 On 17 December 1996 the Planning and Environment (Planning Schemes) Act 1996 commenced. This Act was designed to provide a foundation for a series of new format planning schemes throughout Victoria. The new format schemes were said to be designed to simplify planning in Victoria, by requiring that planning controls for each municipality be drawn from a suite of controls contained in the Victoria Planning Provisions. Another claimed benefit of the reforms was that planning approvals for particular sites would be given by planning permits and that the previous practice of approving major projects by planning scheme provisions would be avoided. As part of this philosophy, it was decided that new format planning schemes should no longer contain the approvals of major projects; but, rather, such approvals should be given in planning permits.

25 Section 23 of the Planning and Environment (Planning Schemes) Act 1996 was designed to give effect to this philosophy. It provided a procedure whereby a council, which was preparing a new planning scheme, could give the owner and occupier of land notice of a proposed permit and, subsequently, recommend to the Minister that a permit be granted by the Minister. Section 23 picked up, and utilised, the provisions in Division 5 of Part 4 of the Planning and Environment Act 1987 which deal with the issue of a permit in conjunction with a planning scheme amendment.

26 It would appear that the council prepared a draft permit and submitted it to consultants acting for Becton for their consideration. In turn, the consultants prepared a revised version of a permit. Ultimately, when the permit was issued by the Minister, it was in yet another form. Having regard to the substantial changes between versions, there is little to be gained by further analysing the council version or the Becton version.

27 The permit was issued on 4 March 1999. The permit stated that it was issued under Division 5 of Part 4 of the Act. I will set out relevant parts of the permit subsequently. The permit was accompanied by a letter from Mr John Phillips, a senior manager with the Department of Infrastructure, which stated:

Please note that the plans approved as part of the previous amendment, of which you hold a copy, have been endorsed and form part of the permit. The endorsed plans will be stored by the Department and have not altered from those previously approved.

A copy of the plans referred to in the letter have not been placed in evidence before the tribunal. However it was common ground, and I infer, that the May 1993 Concept Plan was endorsed and was regarded by Mr Phillips as forming part of the permit.

All acts, matters or things of a continuing nature made, done or commenced under or in relation to a revoked scheme that could have been made, done or commenced under or in relation to the new planning scheme are to be taken, so far as relates to any period after the commencement of the new planning scheme, to have been made, done or commenced in relation to the new planning scheme.

The old Melbourne Planning Scheme was revoked on 4 March 1999 and was replaced by the new format Melbourne Planning Scheme. The approval of the Concept Plan under the revoked Melbourne Planning Scheme is an act of a continuing nature; and it is an act that could have been done under or in relation to the new planning scheme (as the permit operated pursuant to the new format Melbourne Planning Scheme). Hence the approval of the May 1993 Concept Plan is to be taken as an approval of that plan as the Concept Plan pursuant to the permit.

29 On 6 May 1999 the Minister approved certain changes to the amendment, including a change to the time within which development must be completed, from within five years to within ten years of the commencement of development.

30 Subsequently, on 7 August 2001, the Minister approved a further amendment to the permit, altering a height provision in condition 6 of the permit from 54 metres to 57 metres.

31 I now turn to consider the detailed provisions of the current permit, that is the permit issued on 4 March 1999 as amended by the changes made on 6 May 1999 and 7 August 2001. The permit is expressed to allow:

Buildings and works for the purpose of Dwellings, Residential Hotels, Offices, Medical Centre and ancillary retail uses and subdivision of the land in accordance with the endorsed concept and development plans.

32 Conditions 1 to 6 of the permit are critical to the determination of the issues in this case. Hence it is necessary to set these provisions out in full:

1. No buildings or works are to be constructed within the site until a Concept Plan for the overall development of the land has been prepared to the satisfaction of the City of Melbourne and the Minister for Planning and the Concept Plan must be generally in accordance with the guidelines for development and must show:

* The type and location of proposed land uses within the site.

* The location of vehicular access points to the site and the road system within the site.

* The location of pedestrian routes within the site.

* The stages in which the land is proposed to be developed and the order in which these stages is to proceed.

* General building envelopes for each stage of the development.

* The area north of Wellington Parade South to be public open space, although a conceptual design of this part of the site, need not form part of the Concept Plan.

2. If the Concept Plan is not satisfactory to either the City of Melbourne or to the Minister for Planning, then the owner must be advised of the reasons. Unless this advice is provided in writing to the owner within 3 weeks of the plan being submitted, then the plan is deemed to be satisfactory.

3. After the Concept Plan has been prepared to the satisfaction of the City of Melbourne and the Minister for Planning and before construction work may begin on the land, a Development Plan must be prepared to the satisfaction of the Minister for Planning. Before approving the plan the Minister for Planning must consult with the City of Melbourne and take into account its views. The plan must be generally in accordance with the Concept Plan and must show:

* The location, height, dimensions and floor area of all proposed buildings and works.

* Details of materials, finishes and colours of all proposed buildings and works.

* Details of any attenuation measures proposed along the site's boundary with railway land to reduce the noise of railway operations.

* The location of all vehicle and pedestrian ways.

* The location and layout of all car parking areas and access to and from them.

* The location of all public space, including areas available only to residents and employees.

* The stages in which the land is to be developed, with notional starting and completion dates for each stage.

4. At the request or with the consent of the owner, the plan may be amended to the satisfaction of the Minister for Planning.

5. The Minister for Planning may consider any one or more of the components or stages of the plan and notify the owner whether they are satisfactory. The Minister for Planning must consider a component or stage if asked to do so by the owner.

6. The Plan(s) submitted pursuant to Conditions 1 & 3 must generally conform to the following design criteria:

* A residential hotel and/or public car park may be located at the western end of the precinct. The hotel should face onto the proposed extension of Spring Street (if it proceeds) and should offer views of the nearby gardens and the city.

* Home occupation, medical centre, and small office uses may be included in the development, particularly in the buildings fronting Wellington Parade South and Jolimont Road.

* Development within the site is to be generally low to medium rise, compatible with development in the existing Jolimont area to the east. The scale of building should be varied to suit position and outlook, with key sites being recognised in the urban form and buildings up to 8 storeys permitted on these sites. The area at the western end of the site may contain a higher building up to 57 metres.

* Residential development within the site should be sited and designed having regard to reasonable standards of residential amenity and privacy.

* Buildings higher than 25 metres should be designed and located to retain views into and out of the central city.

* Buildings higher than 16 metres should be designed so that undesirable wind conditions are not created in areas intended for use by pedestrians.

* Car parking areas may be on or above ground level (except in commercial or high density residential developments) but should generally be inconspicuously located away from the main streets and open spaces of the site.

* Passenger set down facilities should be included in conjunction with hotel and serviced apartment uses in appropriate locations.

* Internal roads should represent a strong pattern and focus for development with trees and garden squares providing visual relief.

* Public and communal open space areas within the site should be linked to facilitate pedestrian movement towards the city, parks and gardens to the north and the MCG, National Tennis Centre and parks to the east.

* The street frontages of Jolimont Road, Wellington Parade South and the streets, garden squares and pedestrian ways within the site should generally be addressed by buildings. Building setbacks need not be provided although residential buildings may be set back up to 5 metres from the street frontage to create private or semi-private entry courts.

* Private open space should be clearly and easily distinguishable from other open spaces within the site to avoid the likelihood of poor maintenance of such spaces.

33 It will be observed that the permit largely follows the form of the original planning approval which was introduced into the former Melbourne Planning Scheme by Amendment L71. However there have been changes. Significantly the previous provision that provided for the amendment of the Concept Plan has not been reproduced, unless condition 4 can be interpreted as applying to both the Concept Plan and the Development Plan.

34 In November 2000 Becton asked the Minister to approve an amended Concept Plan. This plan showed the western, undeveloped portion of the site as being developed with three buildings. On 9 January 2001 a briefing note was prepared for the then Minister in relation to the request. The briefing note stated:

Becton seeks amendment to the permit and potentially rezoning the land from a mix use zone [sic] to Capital City Zone to allow for a large mix [sic] use development of office (in excess of 40,000 square metres), and residential and/or hotel, with buildings up to 100 metres in height.

The Department of Infrastructure has informed Becton's planning consultant that the permit cannot be amended as requested under section 73 of the Planning and Environment Act 1987 due to increased detriment to other people. The potential increase in office space from 10,000 square metres to 40,000 plus square metres, the additional height and associated car parking and traffic, would not meet the legal interpretation upheld in VCAT decisions concerning no cause to consider detriment. Becton's consultant has agreed with DOI that a new planning permit application is therefore required.

35 As mentioned previously, on 7 August 2001 the permit was amended by altering the guideline concerning a higher building, at the western end of the site, from being up to 54 metres to being up to 57 metres. This change was made at the request of Becton. The change appears to be related to the form of a podium so as to maximise car parking provision in the precinct.

36 On 1 November 2001 Becton wrote to the then Minister seeking approval for a further amended Concept Plan, together with approval for development plans. The further amended Concept Plan, dated 31 October 2001, showed three towers in the western portion of the land, which could each be up to 57 metres high. The Becton letter was accompanied by a planning report prepared by its consultants, SJB Planning. A detailed urban context report, which would appear to have been principally prepared by the Buchan Group, architects, in conjunction with SJB Planning, was also submitted. Reports in relation to traffic, wind, structural design, noise and services were appended to the urban context report. The development plans showed the form of a car parking podium and the two easternmost towers, which were to be developed to a height of 57 metres for residential occupation.

37 By letter dated 5 November 2001, which was received on 9 November 2001, the Department of Infrastructure referred the set of development plans to the council. The set of documents which had been provided to the department were included in the package of information then given to the council. The department in its letter asked the council to comment on the plans within 14 days of receipt of the letter.

38 On 19 November 2001 the Department of Infrastructure received yet a further amended Concept Plan from SJB Planning, who were acting on behalf of Becton. This plan added a car park to the uses in stage 7, but was otherwise the same as that previously submitted to the department dated 31 October 2001.

39 On 20 November 2001 the department forwarded this further plan to the council and this appears to have been received on 23 November 2001.

40 On 5 December 2001 Mr John Phillips, on behalf of the department, wrote to the council in the following terms:

I wrote to you on 5 November 2001 requesting council's comments on a set of development plans for stage 7 Eastside Precinct, East Melbourne.

In the package of documents sent to you, the applicant submitted that the amended Concept Plan is consistent with the requirements of Planning Permit No 141606 issued under delegation by the Minister for Planning on 7 August 2001, and is therefore appropriate for endorsement. This letter is to seek your approval of the amended Concept Plan. Condition 1 of the existing permit states that the Concept Plan must be prepared to the satisfaction of the Melbourne City Council and the Minister for Planning. Condition 6 in part states that:

'The area at the western end of the site may contain a higher building up to 57 metres.'

The current approved Concept Plan indicates one tower to a height of 54 metres to the west of the site and two residential buildings of between three and four storeys fronting Wellington Parade South and three to eight storeys adjacent to the railway. The amended Concept Plan shows stage 7 with three towers to a height of 57 metres including two residential towers and one office tower.

I would appreciate your comments on the amended Concept Plan as soon as possible. I attach a copy of the permit and the current Concept Plan for your information.

41 On 13 December 2001 Becton, the department and the council held a meeting to consider the amended Concept Plan received by the department on 19 November 2001. Following this meeting Mr Phillips wrote to Becton and stated that, in accordance with condition 2 of the permit:

I am writing on behalf of the Minister for Planning to inform you that the Concept Plan as submitted is not satisfactory due to the lack of transition of height and bulk between part of the 57 metre high building on the western area of the site and the existing adjoining residential development.

42 Also on 13 December 2001 the council faxed a letter to Becton in the following terms:

As discussed, the Concept Plan lodged with the Department of Infrastructure on or about 1 November and for which a further revision was lodged with the council on 23 November is currently unsatisfactory.

As discussed the intent of the guidelines within the permit is that there should be a transition from the existing three to eight storey development through to the development referred to in the permit as the area at the western area [sic] of the site.

I acknowledge that you are currently looking at some variations to the Concept Plan and that we will meet again next week to consider those variations.

43 Becton then prepared a further version of the Concept Plan, which was described as the amended Concept Plan dated 21 December 2001 (the December 2001 Concept Plan). This Concept Plan, which is annexed to this decision, was in substantially the same form as the 31 October 2001 plan, but showed certain variations, including a transition of building height at the eastern end of the southern tower building.

44 On 4 January 2002 Mr Phillips of the Department of Infrastructure prepared a briefing note for the then Minister; and this note appears to have been received at the Minister's office on 7 January 2002. There is no indication that the briefing note was seen by the Minister; the usual practice whereby the Minister would circle the word NOTED and sign the document did not occur. It is possible that the then Minister was then engaged in other duties in the service of the State.

45 The 4 January 2002 briefing note referred to the revised Concept Plan dated November 2001 noting that this plan made significant changes to the May 1993 Concept Plan. The briefing note then set out the following issues:

The Department has met with Becton to discuss the Concept Plan, the development plan response and the intent of the permit. The permit and approved May 1993 Concept Plan with regard to the 'western end' of the site, is ambiguous and open to interpretation about the planning and development response. Becton has chosen to interpret the permit to say the entire undeveloped portion of the site is the 'western end', particularly where one building, strictly defined by linked podium with car park, integrates the three proposed towers. The approved Concept Plan strictly refers to one building 'footprint' at the western end of the remaining undeveloped area.

To avoid a default approval of the submitted revised Concept Plan, the Department wrote to Becton on 13 December 2001 (see attached) informing that the Concept Plan as submitted is not satisfactory due to the lack of transition of height and bulk between part of the 57 metre high building on the western area of the site and the existing adjoining (earlier Becton) residential development.

The Department and officers of the City of Melbourne subsequently met Becton in late December to discuss the height and bulk transition issues with further development plans submitted. The Department and Council officers indicated to Becton at that meeting that greater setback (minimum 25 metres) of the 57 metre building form is required to achieve adequate amenity to the existing 3-4 storey residential buildings. Becton agreed to reconsider this and is expected to submit a revised Concept Plan and development plans in late January.

46 On 9 January 2002 Mr Phillips of the Department of Infrastructure wrote to Becton to confirm the outcome of the meeting of 21 December 2001. In this letter Mr Phillips stated:

The Department and the council confirmed that the Concept Plan dated 21 December 2001 is not acceptable, as the setback from the existing development is not sufficient.

The language used in this letter may be significant: Mr Phillips is expressing the department's view, possibly because the Minister had not given his own personal consideration to the matter.

47 On 31 January 2002 Becton wrote to Mr Phillips requesting that the department and the council review their positions in relation to the Concept Plan. It does not appear that this letter was sent directly to the council or, for that matter, forwarded on to the council by Mr Phillips. Various arguments were advanced in support of the request. Mr Phillips then prepared a briefing note to the Minister. This briefing note concluded:

Becton now seeks urgent consideration of the revised Concept Plan. The Department has negotiated a reasonable design response after discussions with Council officers and in accordance with the conditions of the permit. Should you accept the recommendation of this brief, development plan approval would be the subject of a future brief and the Council will be informed of your decision.

That you approve the attached Concept Plan, Amended 21 December 2001 for the Eastside Project site.

On 8 February 2003 the Minister simply signed the briefing note, circling the words APPROVE thereby accepting the department's advice. On that same day, that is 8 February 2003, the December 2001 concept plan was stamped Approved by the Minister for Planning on 8 February 2002.

48 On 5 March 2002 the Department of Infrastructure wrote to the council and set out conditions which it was proposing to impose upon the approval of development plans for stage 7 of the Eastside project. This alerted the council to the fact that the then Minister had approved the December 2001 Concept Plan in early February 2002. However the council regarded the matter as not closed, and sought to accommodate its wishes for a transition zone between the higher and lower buildings by way of a condition in the development plans. Indeed, it does not appear that the council received a copy of the approved December 2001 Concept Plan until 19 March 2002.

49 In March, April and May 2002 a process was followed in relation to the approval of the development plans, which involved consultation with the council. This process led to the current Minister approving the development plans on 7 May 2002. This approval was given subject to numerous conditions.

50 The development plans which were approved in May 2002 are generally in accordance with the December 2001 Concept Plan. If that Concept Plan is a valid Concept Plan pursuant to the permit, then the council would not seek to challenge the development plan. However, if the December 2001 Concept Plan is not a valid concept plan pursuant to the permit, clearly the development plan also falls.

51 Following the approval of the development plan in May 2002 it would appear that the council initially, reluctantly, accepted the Minister's decision. By October 2002 that decision had become public knowledge, and had produced numerous objections from residents in the low rise apartments in the eastern portion of the Eastside Precinct. The East Melbourne Group Incorporated had also protested to the Minister about her decision. By 5 December 2002 the council was moved to consider a report from a senior officer in relation to the approval of the Concept Plan and Development Plan for the project. A separate confidential legal report was also prepared for the consideration of the council. The next day, 6 December 2002, the tribunal received the council's application for declarations that the December 2001 Concept Plan and the May 2002 development plan were void.

52 In a comprehensive, but succinct, submission, Mr Canavan QC and Mr Finanzio argued that the December 2001 Concept Plan had not been validly approved by the Minister. It was submitted that the permit did not confer upon the Minister any power to unilaterally amend the Concept Plan which had previously been approved pursuant to condition 1 of the permit. Further, it was submitted that section 62(3) of the Act, which gives the responsible authority the power to amend plans approved under a permit, could not have authorised the approval of the December 2001 Concept Plan for three reasons. First, it was said, the December 2001 Concept Plan could not properly be said to be an amendment to the May 1993 Concept Plan. Second, it was said, the approval of the December 2001 Concept Plan was not consistent with the permit because the permit contemplated that changes to the approved concept plan would only occur with the consent of both the Minister (as responsible authority) and the council. And third, it was said, the approval of the December 2001 Concept Plan was inconsistent with the permit because this concept plan was not generally in accordance with the guidelines for development set out in condition 6 of the permit.

53 The various bodies corporate adopted the submissions of the council. Notwithstanding the one hour time limit upon submissions imposed as a condition of giving leave to be joined as parties, Mr Southall QC amply, and even flamboyantly, canvassed the relevant issues. Mr Southall emphasised that the procedure which had been adopted by the Minister had denied his clients a fair opportunity to participate in an important planning decision which affected their amenity. Mr Southall also advanced the argument that the Minister's approval of the December 2001 Concept Plan was unlawful because, before making the decision, the Minister was under a duty to notify the bodies corporate of the proposed changes and to give them a hearing. This duty, it was argued, arose by reference to the doctrine of legitimate expectations.

54 The East Melbourne Group Inc also supported the submissions by the council; and argued that the December 2001 Concept Plan was so fundamentally and radically different than its antecedent plan as to make it an illegitimate amendment of the earlier plan.

55 The Minister for Planning resisted the arguments of the applicant and co-applicant on a number of grounds. In the first instance, it was said that the approval of the December 2001 Concept Plan could have been made pursuant to either condition 4 of the permit or section 62(3) of the Act. Next it was said that, in relation to section 62(3) of the Act, the approval of the December 2001 Concept Plan was both an amendment of the May 1993 Concept Plan and, also, was consistent with the permit. Mr Gobbo QC, who appeared on behalf of the Minister, argued that the nature of the use was unchanged from that identified in the permit and that, although the intensity of the development had increased, it was essentially the same development. Mr Gobbo further submitted that the December 2001 Concept Plan conformed with the design criteria set out in condition 6 of the permit. He emphasised that it was still realistic to describe the overall development which would take place at the Eastside site as generally low to medium rise. He said that the proposed towers to be located on the western portion of the site were consistent with the design criterion that the area at the western end of the site may contain a higher building up to 57 metres. Mr Gobbo argued that by locating the higher building at the western end of the site, the development as a whole is compatible with development in the existing Jolimont area to the east. He further said that essentially this is a question of degree and a matter upon which opinions can legitimately differ and that it was certainly open to the responsible authority to find the criterion to be met. Mr Gobbo further argued, that the proposed three towers to be located on the western portion of the site could legitimately be regarded as generally in accordance with the guideline that the area at the western end of the site may contain a higher building up to 57 metres. In this regard Mr Gobbo argued that the use of the singular in describing the building up to 57 metres could extend to the plural by virtue of section 37 of the Interpretation of Legislation Act 1984.

56 Mr H McM Wright QC and Ms Susan Brennan put similar arguments to the tribunal on behalf of Becton. In summary, Becton submitted that the Minister validly approved the December 2001 Concept Plan either pursuant to condition 4 of the permit or section 62(3) of the Act. Alternatively, it was submitted, the November 2000 plan was deemed to be satisfactory by operation of condition 2 of the permit and was subsequently amended pursuant to condition 4 of the permit or section 62(3) of the Act. As a further alternative, it was said that the October 2001 plan had been deemed to be satisfactory by operation of condition 2 of the permit and was subsequently amended pursuant to condition 4 of the permit or section 62(3) of the Act. In putting forward these arguments it was stressed that whether or not the December 2001 Concept Plan conformed with condition 6 of the permit was a matter for the Minister; and that if his decision was open to him the tribunal could not interfere, even though it reached a different view on the matter.[3]

* prior to the approval of the December 2001 Concept Plan, what was the approved Concept Plan pursuant to the permit;

* whether condition 4 of the permit allowed the responsible authority to amend a Concept Plan;

* whether the December 2001 Concept Plan can be regarded pursuant to section 62(3) of the Act as an amendment to the plans previously approved under the permit;

* whether the requirement in section 62(3) of the Act that an amendment be consistent with the permit is a matter for the responsible authority or whether it is in the nature of a jurisdictional fact which must be found by the tribunal to have existed;

* the extent to which the approval of the December 2001 Concept Plan is consistent with the provisions of the permit in relation to the approval and amendment of the concept plan;

* the extent to which the approval of the December 2001 Concept Plan is consistent with the provisions of the permit as to the content of the concept plan;

* whether the Minister had a duty to provide affected persons with an opportunity to make submissions about the December 2001 Concept Plan before he gave his approval to this plan;

* whether, as a matter of discretion, declaratory relief should be given.

58 Immediately following the grant of the permit on 4 March 1999 the May 1993 Concept Plan was, for the reasons given earlier, the approved concept plan pursuant to the permit. The question which must now be addressed is whether any of the events between 4 March 1999 and 8 February 2003 meant that a different concept plan had been substituted for the May 1993 Concept Plan.

59 I accept the submission advanced on behalf of Becton that the permit allows for the possibility of a replacement, or substitute, concept plan. Although the grant of the permit was accompanied by the endorsement of a concept plan - which I find was a recognition of the transitional provision contained in section 24(2) of the Planning and Environment (Planning Schemes) Act 1996 - this does not exclude the possibility of a concept plan being approved subsequent to the grant of the permit. Indeed, the wording of condition 1 of the permit seems to invite the submission of a concept plan for approval after the date of the permit. Further, and more relevantly, there is nothing to indicate that a concept plan could not be approved when an approved concept plan was already in place. In this respect, where the permit sets out what the permit allows and identifies that the various things are to be in accordance with the endorsed concept and development plans, I take this to mean the plans which are endorsed or are to be endorsed. This follows from the wording of conditions 1, 2, 3 and 4, as these conditions are generally directed at the process to occur after the grant of the permit.

60 However, accepting that a replacement concept plan may be submitted for approval, it must also follow that this plan must be prepared to the satisfaction of both the council and the Minister.

61 There is certainly no evidence that the council has given its express approval to any concept plan since the preparation of the May 1993 Concept Plan. Becton did not contend otherwise, but relied upon condition 2 of the permit and argued that various plans must be taken to have been deemed satisfactory by the operation of this condition.

62 I have previously indicated the history of condition 2 of the permit and its unusual character. Given the importance of the concept plan, care needs to be taken to ensure that the deeming provision does not operate in an unintended fashion. To this end, I hold that the deeming provision does not come into effect unless: first, a proposed concept plan is submitted to each of the council and the Minister and each is asked to state whether it is satisfied with the plan; and, second, if written advice that the plan is unsatisfactory is not provided within three weeks of the plan being submitted to a particular authority, then the plan is deemed to be satisfactory to that authority.

63 The permit condition requires the advice to be provided in writing to the owner. On one view, this may carry with it a requirement that the owner be the person who submits a proposed concept plan for approval. However I prefer the interpretation that another person, acting on behalf of the owner, may submit a proposed concept plan for approval; in which case the deeming provision would operate when written advice is not provided to that person.

64 The request made in November 2000 to approve an amended concept plan could not have resulted in the approval of a substituted concept plan. The proposed plan then envisaged by Becton was clearly inconsistent with the guidelines for development referred to in condition 1 of the permit. The deeming provision contained in condition 2 of the permit cannot operate in respect of a proposed concept plan which does not comply with the requirement in condition 1 that it be generally in accordance with the guidelines for development. Further, there is no evidence that the amended concept plan which Becton asked the Minister to approve in November 2000 was submitted to the council.

65 I now turn to the amended concept plan dated 31 October 2001. The Department of Infrastructure referred this plan to the council by letter dated 5 November 2001 which was received on 9 November 2001. However the forwarding documents referred to development plans and asked the council to comment on these plans. The council was not asked to consider whether the 31 October 2001 Concept Plan was satisfactory to it.

66 Moreover the 31 October 2001 Concept Plan was replaced by a further plan on 19 November 2001. This plan was also forwarded to the council by the Department and appears to have been received on 23 November 2001. The natural inference, which I draw, is that the revised plan was intended to replace the original plan dated 31 October 2001, which was no longer being relied upon, and amounted to a fresh submission for the purposes of the deeming provision.

67 It was not until 5 December 2001 that the council was specifically asked to consider whether the amended concept plan was satisfactory pursuant to condition 1 of the permit.

68 However, whether the time ran from 23 November 2001 or (as I prefer) 5 December 2001, it is clear that the council did provide written advice to Becton within three weeks of both dates. This is because the council advised Becton on 13 December 2001 that the plan was unsatisfactory.

69 I now turn to the December 2001 Concept Plan. The deeming provision cannot be relied upon in respect of this plan because on 9 January 2002 the Department of Infrastructure wrote to Becton advising that this plan was not acceptable to the Department nor the council. It is true that the Minister subsequently adopted a position which had the effect of negating this advice in respect of the Department. However there is no evidence that the written advice that the December 2001 Concept Plan was not acceptable to the council was ever withdrawn or varied.

70 It follows that at all relevant times prior to the approval of the December 2001 Concept Plan the approved concept plan pursuant to the permit was the May 1993 Concept Plan.

71 Becton and the Minister argued, albeit in Becton's case a little faintly, that the Minister could use condition 4 of the permit to amend the concept plan. The power to amend a plan given by this condition arises at the request of, or with the consent of, the owner; but this requirement should be interpreted to embrace a person acting on behalf of the owner. The real question which arises for consideration is whether this condition is confined to the development plan, or whether it extends to both the development plan and the concept plan.

72 In my opinion, an analysis of the permit shows that condition 4 is only concerned with the amendment of the development plan. Reference to the history that led to the grant of the permit clearly reinforces this.

73 The expression the plan is used, in different parts of the permit, in relation to both the concept plan and the development plan. The meaning given to the expression is largely dependent upon the placement of the words in the series of permit conditions. Thus the expression the plan in condition 2 relates to the concept plan; whereas that same expression in conditions 3, 4 and 5 obviously relates to the development plan. By contrast, where the permit intends to identify both plans, such as in condition 6, it uses the expression the Plan(s) submitted pursuant to Conditions 1 & 3.

74 Although it is unnecessary to also rely upon the history leading to the grant of the permit[4], this unequivocally demonstrates that condition 4 is only intended to operate in respect of the development plan. This is because the relevant planning scheme provision which preceded the permit made specific provision for the amendment of a concept plan, as well as the amendment of a development plan; but only the latter provision was repeated in the permit.

75 Hence condition 4 of the permit is not relevant to the contention that the concept plan has been amended by the Minister's decision on 8 February 2002.

76 The principal argument advanced on behalf of Becton and the Minister was that the Minister's decision on 8 February 2003 validly approved an amendment to the Concept Plan which had been approved under the permit.

77 Section 62 is concerned with conditions that can be put on permits. Generally the responsible authority may include any condition that it thinks fit: and it is common for a permit to be expressed, whether by condition or otherwise, so as to approve particular plans for development. Further, by reason of section 62(2)(i) a condition can be specifically imposed requiring plans to be prepared and lodged with the responsible authority for approval before the development starts.

78 Section 62(3) is designed to deal with circumstances where plans have been approved under a permit, whether as part of the grant of the permit itself or pursuant to a condition requiring plans to be approved before the development starts. This provides:

(3) The responsible authority may approve an amendment to any plans, drawings or other documents approved under a permit if -

(i) the planning scheme currently applying to the land; and

(b) the amendment will not authorise anything which would result in a breach of a registered restrictive covenant.

79 In the present case, no issue was taken in relation to section 62(3)(a)(i) or (b). However it was said by the council that the December 2001 Concept Plan could not be regarded as an amendment to the May 1993 Concept Plan. Further it was said that the approval of the December 2001 Concept Plan was not consistent with the permit.

80 In view of my ultimate findings, it is unnecessary to decide whether the December 2001 Concept Plan is an amendment to the May 1993 Concept Plan. Mr Canavan relied upon the decision of Brooking J in Addicoat v Fox (No 2) [1979] VicRp 37; [1979] VR 347, which was a case concerned with the power to grant a permit with conditions requiring modification to the proposed development. Although this case may have some relevance, it does not directly address the meaning of the expression an amendment and arises in a slightly different context. During argument I directed Mr Canavan's attention to section 33 of the Act, which refers to changes to a planning scheme amendment; but this provision is also different and arises in a different context. I was also referred to comments of the tribunal in Mentone Mansions Pty Ltd v Kingston City Council (2000) 6 VPR 128, the musings of the tribunal in Cade v City of Yarra [1998] VCAT 304; (1998) 22 AATR 57, at 93-94 and also to Arborea v Hume City Council [2001] VCAT 2295. However, for present purposes, it is sufficient to observe that the power to approve an amendment to plans is a broad power; but it is not a power which would extend to the approval of plans which transformed the development shown on the plans which had been approved under the permit.

81 The December 2001 Concept Plan is clearly different to that described in the May 1993 Concept Plan. However it is necessary to look at the similarities, as well as the differences, in order to ascertain whether the latter plan is an amendment of the earlier plan. Further, it is necessary to assess the matter by stepping back and looking at the total outcome which would be achieved by the implementation of the whole of each plan. Taking such an approach there is much to be said for the contention, advanced on behalf of Becton and the Minister, that the latter plan can be described as an amendment of the former plan. Both plans describe predominantly residential development of the site, with a tower or towers at the western end. Both plans involve a mix of buildings, of differing levels. Although there are significant differences between the plans, these differences could be accommodated within the elasticity given by the concept of an amendment of plans.

82 However it is unnecessary to pursue this question further.

Who decides whether an amendment is consistent with the permit?

83 Even if the December 2001 Concept Plan is to be regarded as an amendment to the May 1993 Concept Plan, the Act only permits the responsible authority to give approval to an amendment of a plan approved under a permit if the amendment is consistent with the permit. Who is to decide this question? Is it to be the responsible authority? Or must the amendment be consistent with the permit as a matter of fact?

84 Recent decisions of the High Court of Australia[5], the Court of Appeal of the Supreme Court of New South Wales[6], and the Federal Court of Australia[7], have led to a renewed focus on the so called doctrine of jurisdictional fact. This so called doctrine relates to facts which must exist, not in the mind of the decision maker, but as a matter of reality, before the jurisdiction of a decision maker is enlivened.[8]

85 In City of Enfield v Development Assessment Commission the High Court considered a decision by the South Australian Development Assessment Commission to allow additions to an existing waste treatment plant. The relevant statutory provision required the concurrence of the local council before consent could be granted if the development was for special industry. This expression was defined in considerable detail and essentially meant an industry where the processes carried on were likely to cause pollution and thereby detrimentally affect other persons or neighbouring occupiers. The Development Assessment Commission had regarded the additions to the waste treatment plant as not being a special industry and, hence, not being a non-complying development; with the consequence that the council's concurrence in the granting of the consent was unnecessary. Debelle J of the Supreme Court of South Australia found that, on the evidence before him, the proposed development was to be characterised as a special industry. This decision was overturned by the Full Court of the Supreme Court of South Australia. Ultimately the High Court overturned the decision of the Full Court and restored the decision of Debelle J.

86 The majority of the High Court[9] commented:

The term jurisdictional fact (which may be a complex of elements) is often used to identify that criterion, the satisfaction of which enlivens the power of the decision maker to exercise a discretion.[10]

The Court subsequently analysed the relevant statutory provision and concluded that, taken as a whole, the text of the provision did not suggest that the determination depended upon the decision maker's own classification of the relevant circumstances. The High Court observed that had the provision been expressed so as to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs, or were it to be so understood, different questions would have arisen. But in that case the section did not involve any matter requiring an opinion or satisfaction, but stipulated in direct terms a precondition which obliged the refusal of consent without certain concurrences.

87 In a supporting judgment in Enfield Gauldron J said:

[55] The other factor that informs comprehensive statutory schemes for the review of executive and administrative decisions is what is sometimes referred to as accountability. In this context, accountability can be taken to refer to the need for the executive government and administrative bodies to comply with the law and, in particular, to observe relevant limitations on the exercise of their powers.

[56] Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less.

88 In Timbarra Protection Coalition Inc v Ross Mining NL Spigelman CJ emphasised that the issue of a jurisdictional fact turns, and turns only, on the proper construction of the statute.[11] Spigelman CJ commented:

The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality).

Objectivity and essentiality are two inter-related elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are inter-related because indicators of essentiality will often suggest objectivity.

89 In the Timbarra case the Court was required to consider a provision whereby a development application shall ... if the application is in respect of development of land that is, or is part of, critical habitat ... be accompanied by a species impact statement ... The court concluded that, taking into account the legislative purpose and the statutory context, the decision as to whether a species impact statement was required was to be construed as a jurisdictional fact, or condition precedent, which the Court must determine for itself when the validity of a development application is challenged for the lack of such a statement.

90 Another example is given by the decision of the Federal Court in Cabal v Attorney General of the Commonwealth. In a particularly helpful review of the doctrine of review for jurisdictional fact, Weinberg J emphasised that the starting point must be the language in which the statutory formulation is expressed. He also identified other matters which would be relevant, including the nature of the task committed to the decision maker and the inconvenience which would arise if the facts to be determined were regarded as jurisdictional facts rather than simply facts to be found by the decision maker.

91 These decisions are directly relevant, and applicable to, the interpretation of section 62(3) of the Act. But, for my part, I would emphasise, as did Spigelman CJ, that the issue turns on the proper construction of the statutory provision.

92 The power given to the responsible authority to approve an amendment to any plans approved under a permit is clearly conditional on the amendment being of a certain character. The use of the word if in section 62(3) makes this plain. For the power to be enlivened the character of the amendment to the plans must be such that the amendment is consistent with the planning scheme currently applying to the land and, also, consistent with the permit. Further, the amendment must not authorise anything which would result in a breach of a registered restrictive covenant. These requirements are essentially black or white. Either the amendment is consistent or it is not consistent: either the amendment will authorise something which would result in a breach of a registered restrictive covenant or it will not. It may be that there are fine issues involved in determining which side of the line an amendment falls. However this decision will generally not involve the complex weighing of competing elements and then making a value judgment on the matter. Certainly the judgment required will usually be less value laden than the judgments required by the decision makers in the Enfield case and in the Timbarra case[12].

93 Section 62(3) can be compared with the language used in section 73(1), a provision which deals with the power of a responsible authority to amend a permit. This section provides:

73(1) The responsible authority may amend the permit if it is satisfied that the amendment

and then a series of criteria are set forth. In my opinion, the comparison reveals an important distinction. In fact, this type of distinction permeates the Act. Where the Parliament has intended that a matter, which may enliven jurisdiction or give rise to some obligation, should depend upon the opinion of the decision maker or upon the decision maker being satisfied of certain matters, it has said so.[13] It has not said so in section 62(3).

94 Hence I conclude that, when the Minister approved the December 2001 Concept Plan, the power to give that approval was dependent upon the amendment being consistent with the permit as a matter of fact. It is now incumbent upon the tribunal to determine whether the necessary jurisdictional fact existed.

Consistency with permit - provisions relating to approval and amendment of concept plan

95 The council contended that the approval of an amendment to the concept plan was not consistent with the permit because the permit envisaged that the concept plan would be to the satisfaction of both the Minister (as responsible authority) and the council. This argument depended upon condition 4 of the permit being confined to the amendment of the development plan; but I have so held.

96 The determination of this question is intertwined with the construction of the permit. I see no reason why a permit could not be worded so as to exclude any possibility of plans, approved under the permit, being varied by an approval pursuant to section 62(3) of the Act. It is a question of which is to be the master: and the words of the sub-section make it clear that it is to be the planning scheme, the permit and any registered restrictive covenant which is to be the master.

97 I construe the permit as requiring the concept plan to be approved, or deemed to be approved, by both the Minister and the council. By contrast, the development plan, which must be generally in accordance with the concept plan, need only be approved by the Minister. (In the case of the development plan, there must still be consultation with the council and the Minister must take into account its views.)

98 The requirement that the concept plan be to the satisfaction of both the Minister and the council is not only evident from the wording of condition 1 and the deeming provision contained in condition 2; it also flows from the opening words of condition 3. The permit, unlike the planning scheme provisions which preceded it, does not envisage a replacement or amended concept plan which is approved by only the Minister.

99 This conclusion is reinforced by the nature of a concept plan. A concept plan is generally fundamental to a permit - and that certainly is the case here - as without it the permit lacks form and content. In many ways, the concept plan is the permit in this case, in the sense that it is this plan that expresses and describes the fundamental nature of the development which is permitted. Unusually the permit requires this plan to be to the satisfaction of the council, as well as the Minister as the responsible authority. To permit the responsible authority alone to approve an amendment to the plan, which could well be a significant amendment, would be to negate the unusual requirement that the concept plan be also to the satisfaction of the council.

100 Although it is unnecessary to rely upon it, the planning history of the site reinforces this conclusion. The permit is part of an evolution from Amendment L71 to the current Melbourne Planning Scheme. In turn, the form of this amendment was a political compromise between the council and the Minister as to who should be able to determine the nature of development. It is necessary to construe the permit so as to require any approval of a concept plan, or a substituted or amended concept plan, to be by both the council and the Minister in order to be faithful to this compromise.

101 Hence I conclude that the decision by the Minister on 8 February 2002 to approve the December 2001 Concept Plan as an amendment to the May 1993 Concept Plan was not legally effective, in the absence of a similar approval by the council, because the amendment was not consistent with those provisions in the permit that relate to the approval of a concept plan.

Consistent with permit - content of concept plan

102 Condition 1 of the permit makes it clear that the concept plan must be generally in accordance with the guidelines for development. The guidelines, to which the concept plan must generally conform, are those set out in condition 6 of the permit. It would be incongruous if this requirement only applied to the original concept plan: it must also apply in relation to any amendments to the concept plan.

103 The council argued that the December 2001 Concept Plan was entirely inconsistent with the guidelines for development set out in condition 6 of the permit. The critical guideline is that contained in the third sub-paragraph. The council also relied upon the first and fourth sub-paragraphs; and the bodies corporate relied upon the fifth sub-paragraph. But all these design criteria are expressed in discretionary or precatory terms and a case has not been made that the December 2001 Concept Plan fails to generally conform with those criteria.

104 When a provision requires plans to generally conform with a number of design criteria it will often be the case that general conformity can be achieved notwithstanding non-compliance with a particular criterion. This is because the ultimate requirement is general conformity with the criteria as a whole. The word criteria is to be distinguished from a word such as requirements; and it generally connotes that a matter must be addressed rather than absolutely complied with. Further elasticity is given by the word generally where it is used in condition 1 and in condition 6.[14]

105 However the third sub-paragraph of condition 6 is expressed in different terms to other sub-paragraphs and should be regarded as a requirement which the Concept Plan must generally conform with. This is demonstrated by the words is to be, which are not found in any of the other design criteria.

106 I construe the third sub-paragraph of condition 6 as follows:

* Development within the site is to be compatible with development in the existing Jolimont area to the east.

* The scale of buildings should be varied to suit position and outlook.

Melbourne CC v Becton [2003] VCAT 1077

At a glance

Court

Decision date

Before

Source

Judgment (240 paragraphs)

Melbourne CC v Becton [2003] VCAT 1077 (4 September 2003)

Parties

Legislation Cited (1)

Cases Cited (5)