Victorian Civil and Administrative Tribunal|2000-09-30|Before: Mentone Mansions P

Mentone Mansions PL v Kingston CC [2000] VCAT 1947 (30 September 2000)

Dispute under Section 149(1)(a) of the Planning and Environment Act 1987 (the Act).

(a) The Responsible Authority is directed to endorse amending plans under the provisions of conditions 2 and 7 of Planning Permit No. KP 98/221, such plans incorporating the amendments set out in Attachment 1 of the decision of the Victorian Civil and Administrative Tribunal in application for review 2000/043617.

(b) The hearing date for application for review 2000/045209 set down for the 25th September 2000 be vacated, and that this and any further applications proceed to hearing as required on the 26th September 2000.

Ms Adeline Lane, Solicitor, appeared on behalf of the Responsible Authority.

Mr Jeremy Gobbo, Q.C., appeared on behalf of the Applicant for Review. Mr Gobbo called Mr Robert Milner as a witness in support of his submissions.

Mr David King, Solicitor, appeared on behalf of the Respondents.

1. This is an application to review the decision of the Responsible Authority to refuse consent to the alteration of plans and of finished floor levels in accordance with conditions 2 and 7 of Planning Permit No. KP98/221. The parties in the application made both written and verbal submissions and a number of plans, photographs and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality. In this decision any questions of law have been decided by Ms Rickards, a legal practitioner, otherwise the merits of the application for review have been decided by us both. The parties and witness in the Application for Review made both written and verbal submissions, all the parties made further written submissions in accordance with directions from the Tribunal, the Tribunal inspected the subject site, the locality and the respondents properties.

2. Planning Permit No KP98/221 was issued in December 1998 for 8 dwellings on the subject land. The permit was issued at the direction of the Tribunal, on the basis of a consent agreement reached between the parties in that Application for Review. Conditions 2 and 7 of the permit state:

"2. The development and/or use as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority

7. Finished floor levels shown on the endorsed plans must not be altered or modified without written Council consent."

3. On 5th April 2000 by letter from Mr Tim Hobson of the Gardiner Group, the applicant requested the consent of the Responsible Authority under conditions 2 and 7 for a number of alterations to the endorsed plans and the finished floor levels. On 8th June 2000 the Responsible Authority made application for an enforcement order seeking to have the development brought into conformity with the permit and its approved plans with the list of alleged contraventions being essentially similar to the matters which were contained in the application for consent to alterations to the plans and levels previously referred to. The application for enforcement order was adjourned on the undertaking of the Permit Applicant not to continue with the development, to enable this application, and a new permit application to proceed.

4. In preparation for this hearing, the Permit Applicant engaged Mr Milner of Coombes Consulting to undertake an assessment of the variations between the development which is permitted, and the development which has to date been constructed. As part of this assessment Mr Milner arranged for a comprehensive survey by a licensed surveyor of the site and the completed construction. This process highlighted a number of variations, many quite minor, which were not the subject of the applicant's original request for the consent of the Responsible Authority to alteration to both plans and floor levels. Mr Gobbo on behalf of the applicant sought to amend the request and the application to encompass all the alterations that are necessary to make the plans and floor levels conform to the as constructed condition. This application by Mr Gobbo was opposed by Ms Lane and Mr King. In the context of further submissions made by Mr Gobbo, in accordance with a direction of the Tribunal, Mr Gobbo enclosed a list of all the alterations sought, and a copy of that list is attached to this decision.

5. In this decision the issues raised are dealt with under the following broad headings:

* The amendment of the application and request; and

6. Ms Lane argued that the informal consent sought by the applicant was clearly unlawful because it was in substitution of a primary buildings works permission required under the zone and overlay. In this she relied on the following decisions of the Administrative Appeals Tribunal as authority for this proposition:

* Appeal No.1992/21753 and others, Kitsone Pty Ltd v City of Doncaster and Templestowe and

* Appeal No. 1996/44441 and others, Abacus Design v City of Yarra.

7. The Kitsone appeal related to a request for consent for substantial buildings and significant earthworks in the context of a permit which allowed a simple open air trash and treasure market. The Tribunal in Kitsone found that an informal consent could not be used in these circumstances. A relevant extract from the Kitsone appeal is set out below:

Two principles emerge from these cases. The first relates to the distinction between formal and informal consents. A formal consent is one which is required by a planning scheme. It can only be obtained by making an application for a permit pursuant to Section 47 of the Planning and Environment Act. Such a consent is then subject to all the notification requirements and rights of appeal set out in the Act.

An informal consent is one which is only required pursuant to conditions in a planning permit. It is not subject to the notification or appeal provisions of the Planning and Environment Act. Disputes in relation to an informal consent may be referred to the Tribunal pursuant to Section 149A of the Act. The parties to such a dispute are set out in Section 149A(2). They do not include third parties.

However, a condition in a planning permit requiring something not to be done "without the further consent of the Responsible Authority", cannot operate to transform what would be a formal consent required by the planning scheme into an informal consent required under a planning permit and thus effectively exclude the notification and appeal rights which would otherwise apply under the Planning and Environment Act.

The second principle is that even if only an informal consent under a planning permit is required, the Responsible Authority cannot grant such a consent if the effect of doing so would be to transform the permit for which application was originally made as distinct from only modifying it (see Addicoat v. Fox (No 2) [1979] VicRp 37; [1979] VR 347). This does not mean that the informal consent must result in a different use to that applied for or permitted as was the case in City of Keilor v. Suraco [1981] VicRp 81; [1981] VR 865. The use may well remain the same but its intensity may increase to such an extent or the effect on the surrounding amenity may so alter as a result of the informal consent sought that it cannot be said that the permit remains the same but becomes a different permit.

8. The Abacus case relies heavily on Kitsone in significantly different circumstances, in which informal consent was sought for alterations to a development (a dual occupancy) which had already been approved. The Tribunal in the Abacus case found that an approved development could not be amended through an informal consent in circumstances where a permit was required for development. A relevant extract of the Abacus case is set out below:

We have given careful consideration to this matter, and are mindful of the consequences of our determination for what we are sure is a widespread practice by planning decision-makers of allowing minor amendments to all types of planning permits under "consent" conditions of this sort. We have, however, been persuaded of the correctness of Mr Townshend's view. Our findings on this matter are as follows.

The decision by the Tribunal in Kitsone that secondary consent does not equate to and cannot substitute for primary consent where it is required under the planning scheme was merely an affirmation of a view expressed in a long line of Tribunal and Court decisions. Many of those are referred to in the Kitsone determination itself. That principle is that if a Planning Scheme requires primary permission for a use or development, a secondary consent condition will be insufficient to authorise new use or development on that land. The principle derives from the legal rule that the permit is a subordinate document issued under the enabling Scheme and Act, and thus any permission available under the subordinate document cannot supplant or equate to that required by the higher order document(s) - the Scheme (and Act).

In the Kitsone decision, Mrs Gibson was considering a proposal which required primary permission under the Scheme not only for use but also for buildings and works under separate overlay controls. The latter permission had never been granted, and the applicant sought to avail himself of the "consent" apparently available under two of the conditions of the use permit to authorise the buildings and works already constructed. Such authorisation was insufficient Mrs Gibson said - a further planning permit for buildings and works was necessary.

We believe that the principle expressed in the Kitsone decision extends even to the present circumstances in which there is no inadequacy in the primary permission already granted for the proposal. That is to say, the applicant has all the planning permission which he requires to proceed with a dual occupancy development on the land, but seeks to amend that permission.

It is our view that seeking an amendment to development already (even fully) authorised under a permit is to be properly construed as proposing a new form of development on the land and the need for a planning permit cannot be avoided by applying for secondary consent.

9. Ms. Lane also relied on the decision of the AAT in Appeal No. 1997/1563 and others, Cade v City of Yarra, [1998] VCAT 304; 22 AATR 57, as being a decision of another division of the Tribunal which had followed the Abacus decision. It is considered that Cade does not in fact unequivocally adopt the Abacus decision. Rather Cade opens up the need to deal with the issue of minor amendments at some future date, albeit that the decision refers to very minor amendments

10. The Abacus decision relies heavily on the Kitsone decision, but very dramatically extends the effect of the Kitsone decision, by drawing no distinction between development which had not already been approved, the transformation of approved development, or minor amendments of approved developments.

11. At the direction of the Tribunal Mr Gobbo prepared further written submissions in response to Ms Lane's reliance on the Abacus decision. The following extracts from Mr Gobbo's submissions describe his propositions:

"The Applicant accepts that Kitsone is good law. It is authority for two propositions. The first is that one cannot use a secondary consent mechanism to gain primary planning permission. Secondly, one cannot use any process of amendment to transform an application.

The Applicant in Kitsone did not have primary permission for the works which it sought to validate under the relevant condition. In other words, it needed a primary permission. It was not a case of making minor amendments to an existing permission. The Applicant in Kitsone also failed because the nature of the amendment sought was determined by the Tribunal to constitute a transformation of the application.

At this point it is appropriate to recall that there are five avenues an applicant or permit holder might pursue if wishing to develop other than in accordance with endorsed plans under a current permit. These are as follows:

2. Make an application under section 87 of the Act.

5. Apply for an amendment by means of a secondary consent condition.

Having regard to the two principles in the Kitsone case, the issue of transformation will not be relevant to a new permit application but will be relevant to the other four potential avenues for amendment. In this case it is not suggested that the amendments sought involve any transformation.

As to the second principle in the Kitsone case, the question of primary/secondary consents will only be relevant to the first avenue of amendment set out above, namely applying by means of a secondary consent condition. Applications for amendment which are dealt with under sections 62(3), 73 and/or 87 are not caught by the primary/secondary dichotomy.

This is specifically recognised in the discussion in relation to these sections in the Abacus Design case with the relevant passages cited with approval in the Alehill case at pages 339 and 341.

Further, in Helimount Pty Ltd v Mildura Rural City Council 21 AATR 107 at page 119 Ms Moles stated:

"The powers to amend plans endorsed to planning permits derive from a number of sources: sections 73 and 62(3) of the Planning and Environment Act 1987, secondary consent clauses included within the permits themselves, and the issuing of further permits referring to new sets of endorsed plans. Permits can also be amended pursuant to section 87 of the Planning and Environment Act upon application to the Tribunal..."

The availability of these other avenues of amendment is important because it demonstrates a scheme whereby responsible authorities are able to deal with amendments to existing permits without requiring fresh applications. There is no warrant for reading down the powers of a Responsible Authority under secondary consent conditions given that similar "primary" powers exist in three other parts of the Act. In short, the Tribunal's concern about disenfranchising those who might wish to participate in the planning process has no reasonable basis."

12. It is clear that it is the Abacus decision which is the obstacle to jurisdiction in this application for review. It is considered that the Kitsone decision does not support the proposition relied on by Ms Lane unless its principles are extended as they have been in the Abacus decision. Ms Lane also referred to a number of other decisions of the Tribunal which have relied on the Abacus decision, in addition to Cade, but these cases do not take the argument any further.

13. The Abacus decision relies on the two principles set out in the Kitsone decision, it does not create or rely on any new principles as the underlying basis of its decision, rather it is the scope of their application which Abacus seeks to extend. Abacus says that where permission is required for development under a planning scheme, informal consent cannot be used to amend an already permitted development even if it is a minor amendment.

14. The planning system has historically drawn a distinction between the initial or primary permission of use and development under a planning scheme, and the giving of consent to minor amendments arising during the development process which follows on from the primary consent. Indeed, in addition to what are commonly regarded as minor amendments, there are always variations which are regarded as being so trivial that they are disregarded, and the primary approval is not amended in any way to accommodate the variation. The basis for this distinction between primary approval and minor amendments is founded on practicality. Most planning projects undergo a design and development process which takes a considerable time, and the planning approval phase is early in that process. As a consequence, after planning approval the development of a design for construction purposes, and the construction process itself, can result in a need to amend the development no matter how well resolved the development is at the planning stage. Historically these changes fall broadly into three categories, changes which are so minor that they are disregarded, changes of a minor nature which require the informal consent of the Responsible Authority (or more recently consent under Section 72 of the Planning and Environment Act 1987 and like provisions) or changes which are so significant that a new permission is required, or the existing permission is amended under Section 87 of the Planning and Environment Act.

15. The most common informal consent condition is a condition which provides that the endorsed plans of a permit can only be amended with the consent of the Responsible Authority. Often these conditions are expressed in the negative providing that the endorsed plans cannot be amended other than with the consent of the Responsible Authority. A condition of this type would have appeared on most permits issued since the inception of the planning system. The practice and the law which developed around the imposition of these conditions was that the conditions were only for minor amendments. But minor amendments were not seen as amendments which were trivial in an absolute sense, rather minor amendments were seen to be amendments which were trivial in the context of the purposes of the control which led to the granting of the permit. If the particular planning control was concerned about car parking, or heritage, or amenity, then the question of whether or not a particular amendment was minor is decided by turning one's mind to the issue of whether or not in a particular case the amendment had an effect on car parking, or on heritage, or on amenity. For example in the old Restrictive Business zone where a permit was required for development under clause 22 of the then MMPS, the relevant issues under that control were primarily access and car parking. In that context a complete replanning of the internal layout of a proposed building could be regarded as a minor amendment if it did not adversely impinge on any of these issues.

16. The fact that this approach to informal consents has a very long history, a practice which has evolved from the very beginning of the planning system in the State, does not necessarily make it lawful. However, it is not until we have the Abacus decision do we have this very restrictive view of the scope of informal consents being formulated, notwithstanding the fact that informal consents would undoubtedly have been a matter of contention in many disputes.

17. The primary analysis of the Abacus decision is correct. It is its failure to give sufficient weight to the variation which will inevitably exist in the real world between what can and is constructed and what was approved by the primary planning permission. Such variations may be on one hand minor, that is trivial or inconsequential having regard to the purpose of the planning control, or on the other hand may require a new primary consent because they are transforming, or consequential having regard to the purpose of the planning control.

18. In the case of permitted development there is a continuum in the possibility of variation:

(b) Trivial variation (de minimus, in an absolute sense);

19. The tension created by giving insufficient weight to this continuum is in effect recognised in the Abacus decision itself, where it seeks to compromise its main propositions in respect of:

* deferred approval of aspects of the permitted development,

preserving the role of informal consents in these circumstances.

20. It is considered lawful for a Responsible Authority to amend a development which already has primary permission, relying on an informal consent, provided that the amended development is not a transformation of the development originally approved, and the amendments are inconsequential having regard to the purpose of the planning controls which lead to the need for the primary permission.

21. Mr Gobbo's further submission seems to suggest that to the extent that the request can also be seen as a request under Section 73 of the Planning and Environment Act 1987, this application is also a review of any decision made under that section. The submission by Ms. Lane and Mr. King that decisions under this section are not reviewable by the Tribunal in the context of the current application is accepted. This application relates to the informal consents requested under the conditions of the permit.

22. The application by Mr Gobbo to amend the request to the Council and the application for review was opposed by both Ms Lane and Mr King who argue that such an amendment is both unjust and beyond power. The amendments requested by the applicant, and the contraventions set out in the Responsible Authority's application for enforcement order, are broadly similar, with the most significant difference being the alleged variations in the width of dwellings 5 and 6. The expanded list of amendments now requested by Mr Gobbo arises from the detailed survey commissioned by Mr Milner on behalf of the applicant. Mr Milner's assessment revealed a large number of variations from the approved development which had not been previously identified by any of the parties. Most of these variations are unarguably trivial, whereas a small number primarily relating to the relationship of the partially completed dwellings to the front boundary of the site are of greater significance. At the hearing the Responsible Authority continued to refuse to consider the requested amendments both as originally submitted, and as elaborated by Mr. Milner's investigation.

23. Ms Lane and Mr King were unable to demonstrate how they would be adversely affected by the Tribunal approving the amendments to the request and application sought by Mr Gobbo. Indeed, it seems to us that in the unfortunate set of circumstances which exist in this case it is to everyone's benefit if some or all of the issues in contention in this matter can be resolved in the context of this application for review, this is only possible if all the matters in contention are before the Tribunal. The Victorian Civil and Administrative Tribunal Act 1998 and the Planning and Environment Act 1987 give the Tribunal considerable powers to remedy procedural and other defects so that application can be expeditiously determined on it merits. These powers include the power to , amend permit applications and other documents. This legislative framework has evolved over time with a considerable emphasis on the just and expeditious resolution of disputes without undue technicality. It is appropriate to exercise this power in this case. The Tribunal therefore amends both the request by Mr Tim Hobson of the Gardiner Group dated 5th April 2000 and the application so that the amendments being requested are as set out in the table at attachment 1.

24. Turning now to the requested amendments. To the extent that is relevant in the context of this application for review, the important purpose of the planning control which led to the primary permission for these eight dwellings is the protection of the amenity of the immediately adjoining neighbouring properties. There are indeed other purposes which are of equal or greater importance, but these purposes are not affected by the amendments sought in this case. Therefore, having regard to the discussion above the Tribunal must be satisfied that the proposed amendments are inconsequential from the perspective of the amenity of these adjoining properties.

25. The table set out in attachment 1, describes a large number of amendments but it is considered that for most of these amendments the Tribunal can safely conclude without further discussion that the amendments are inconsequential, indeed many of them are trivial in an absolute sense. There are however four amendments or groups of amendments which are not trivial in this absolute sense, and there must be an examination to determine whether or not they are inconsequential.

26. It was argued that the conditions restraining the exercise of the discretion available under Section 73 of the Planning and Environment Act 1987 are conditions or considerations which should apply when considering an informal consent. The conditions or considerations set out in Section 73 are applicable to the discretion to be exercised under Section 72, and as it is not this decision which is being reviewed by this Tribunal these conditions or considerations are not strictly relevant. However, they can perhaps be helpfully regarded as being a codification of the general legal principles which apply to a decision in respect of any informal consent.

27. During the course of the hearing much was made of the fact that under Section 73 the Responsible Authority may only amend a permit if it is satisfied that among other things the amendment will not cause an increase in detriment to any person, and the concept of detriment is not qualified by words such as material or substantial. Here we are not dealing with Section 73 and it is considered that the concept of the consequences of any amendment vis-à-vis purpose of the control is a more useful way of looking at the discussion. Nevertheless, it is useful to observe that the idea of increased detriment should be based on the ability of an ordinary person to perceive or discriminate change. For example, if a 3 metre wall is proposed in a boundary, and a 4.5 metre wall is built in its place, any reasonable person would readily perceive a change. On the other hand, if a 3 metre wall is proposed and a 3.1 metre wall is built, most people could not discern the change without the aid of a measuring device. In making this observation it is important to recognise that many people may accept in the abstract the idea of a 3 metre wall being built on the boundary, and are then shocked at the outcome of the construction. However, this does not change the fact that the difference between a 3 metre wall and a 3.1 metre wall is not perceivable. The affected person is concerned by the reality of the wall which is in the order of 3 metres high, and not by the 100mm difference between that which was approved and that which was constructed.

* The frontage setbacks of dwelling 1 & 2 are greater than shown on the approved plans. In the case of dwelling 1 the setback is some 310mm greater than shown on the endorsed plans, in the case of dwelling 2 some indeterminable distance greater, similar to dwelling 1,.

* The position of dwellings 5 and 6 which were located centrally on the site and which are approximately 1100mm closer to the rear of the site.

* The boundary wall of dwelling 7 which is built some 140mm higher than shown on the endorsed plans, and

29. Based on the Tribunal's inspection of the site and adjoining sites, it is concluded that:

* The increased frontage setbacks of dwellings 1 and 2 have no discernible impact on the amenity of the adjoining properties, and are advantageous from a broader streetscape perspective.

* The relocation of dwellings 5 and 6 is relatively large, but these dwellings are an island located centrally within the subject site, with substantial boundary setbacks, consequentially the relocation has no effect on the amenity of any of the adjoining properties, other than for very minor oblique views available from secondary first floor rooms at No. 3 Sea Terrace.

* The boundary wall of the dwelling 7 as seen from No. 3 Sea Terrace is some 140mm higher than shown on the endorsed plans. While this discrepancy is capable of being resolved in part or in whole by requiring the removal of one or two courses of brickwork, it is considered that no purpose will be served by such a change. The increase in the height of this wall by this small margin has no perceptible effect on the amenity of No. 3 Sea Terrace either as a consequence of visual impact or of overshadowing. The visual impact of a 3 metre wall is no different to that of a 3.14 metre wall. The additional overshadowing is minor in area terms and cannot have any practical implications in relation to the utility of the affected open space.

* The pitch roof form for the single storey dwellings 7 and 8 is different to that shown on the endorsed plans. In practical terms the degree of overshadowing from this roof structure, is likely to be reduced at important times, otherwise there will be no impact from this change. It is a change that will have no discernible effect on the amenity of adjoining properties.

30. In this application for review the Tribunal is not asked to review the original decision to allow the proposal to proceed. The scope of the Tribunal's discretion is limited to the reasonableness of the proposed amendments, which have arisen as a consequence of the variations which have occurred in the early development stages of the project. It is concluded that the various amendments and changes will have no discernible effect on the amenity of adjoining properties. In reaching this conclusion the Tribunal has formed no view about the merits of the project as a whole, or the implications of the project on the amenity of adjoining properties. These are matters which are the subject of the agreement between the parties. The Tribunal has only been concerned about the implications of the disputed variations.

31. In accordance with earlier directions of the Tribunal, a related application for review have been set down for hearing on the 25th and 26th of September. It may be that the decision in this application for review will significantly affect the course of this application. Mrs Rickards is unavailable on the 25th September. Given that this Tribunal is familiar with the issues surrounding these applications, it is considered important that the related application be heard by the same Tribunal members. Therefore, the hearing date on the 25th of September 2000 is vacated, and the application will now be heard on the 26th September 2000.

Civil and Administrative Tribunal Act 1998

Environment Act 1987

Mentone Mansions PL v Kingston CC [2000] VCAT 1947

At a glance

Court

Decision date

Before

Source

Judgment (73 paragraphs)

Mentone Mansions PL v Kingston CC [2000] VCAT 1947 (30 September 2000)

Parties

Legislation Cited (2)