This matter was heard on 3 March 2010. It is a review sought by the permit applicant against the refusal of the City of Casey to grant a planning permit for the construction of a second dwelling and the subdivision of the land at 17 Michelle Drive, Hampton Park.
The reasons for refusal referred to non-compliance with six specific aspects of Clause 55 and overdevelopment of the site.
Prior to the hearing I undertook an external inspection of the subject site and the locality.
Since the lodgement of the application for review, the applicant circulated amended plans that I allowed to be substituted. Amongst other things, the substituted plans show the removal of the front fence, the verandah of the existing dwelling replaced with a pergola, screening of windows adjacent to the driveway and the siting of the new dwelling altered to provide a larger area of private open space with a northern aspect.
Mr Hobbs advised that while the substituted plans address many of the Council's concerns with the original proposal, the Council remains opposed to the proposed development and subdivision. His submissions focussed on the outstanding concern that the revised design does not incorporate acceptable car parking and vehicle access arrangements. They included concerns about how vehicles would manoeuvre to and from the proposed garage for the new dwelling. They also included a critique of the proposed reliance on a carport (authorised by a building permit issued in March 2009) and open car space at the front of the site.
Mr Ng objected to Mr Hobbs making submissions in relation to the carport and open car space on the basis that they were not mentioned in the Council's grounds of refusal.
Nevertheless, I allowed Mr Hobbs to make those submissions. I relied on the fact that the grounds of refusal specifically referred to Clause 55.02-5 (Integration with the street), Clause 55.03-9 (Access objectives) and Clause 55.03-10 (Parking location objectives) - which raise wide considerations relating to vehicle accommodation and access.
At the conclusion of the hearing I reserved my decision.
By facsimile to the Senior Registrar on 9 March 2009, Mr Ng raised concerns about the conduct of the hearing and requested that the matter be re-heard with a re-constituted Tribunal including or comprising a legal member. I understand that a copy of the correspondence was sent to the Council.
Specifically, Mr Ng argued that the Council had raised a new ground of refusal - objecting to the existing lawfully constructed carport and the car space at the front of the property. He claimed that in order to ensure natural justice the applicant should have the opportunity to rebut the ground and be given the chance to argue whether the Tribunal has the power to entertain argument against the carport and car space. Mr Ng also raised the issue of costs.
As noted above, during the hearing I formed the view that Mr Hobbs' submissions were not beyond the Council's grounds of refusal. However, I appreciate that the wording of the grounds of refusal may not have foreshadowed the nature of the submissions put to me on behalf of the Council.
The issue of parking and access is determinative of the outcome in this review. Accordingly, I am prepared to give both parties the opportunity to make further submissions on the limited issue of the carport and car space at the front of property. I do not consider that it is necessary to reopen the hearing for that purpose. Rather, the parties will be given leave to make written submissions.
It is not self-evident that there is any legal issue arising from the matters raised by Mr Ng. That is particularly so in the light of the findings of the tribunal in two cases cited by Mr Hobbs. The cases considered the relevance of an existing carport, and a car space and crossover, in proposed dual occupancy developments.
If Mr Ng wishes to raise a question of law, then he will need to properly frame the question. He will also need to indicate whether he consents to me deciding the question. Upon receipt of any submissions in that regard, I will determine the appropriate course of action.