Victorian Civil and Administrative Tribunal|2008-02-19

This matter is a conditions appeal challenging Condition 3 of the planning permit No. PL07/0092 dated 27 July 2007 ("Permit") in relation to the land at 31 Kerr Street in Fitzroy. In essence, Condition 3 requires the owners to procure a statutory environmental audit of the site. The owners consider this requirement excessive and unreasonable. My finding has been to delete condition 3, on the basis that it is unreasonable.

I see the key issues in this appeal as follows:
- is there any ability for the Applicant to rely on the list of exempted works under Clause 62.02 of the Planning Scheme?; and
- is there a reasonable nexus between Condition 3 and the proposal?.

I understand all of these works have been carried out apart from the new pergola, which is part-completed.

The site is affected by an Environmental Audit Overlay, reflecting the historical mix of uses in the locality. Whilst neither the appeal site nor any abutting sites are used for commercial purposes, the Applicant conceded that there are some commercial/industrial activities within the local area.
In appealing against Condition 3 of the Permit, the Applicants' main grounds of opposition are that they see the real contamination risks for their site as being negligible, that the relevant works involve minimal disturbance of the soil at the rear of the appeal site, and that the likely $20-30,000 or more estimated cost of carrying out a statutory audit of the site is unfair, excessive and unjustified in the circumstances.
Condition 3 reads as follows.

"Within three months of the date of this permit, [the Applicant must obtain] either:

a Certificate of Environmental Audit indicating the land is suitable for residential use must be issued for the land in accordance with Section 53Y of the Environment Protection Act 1970; or
an environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Section 53ZS of that Act that the environmental conditions of the land are suitable for the proposed uses. Any conditions in the Statement must be complied with.

A copy of the certificate of environmental audit and/or statement, and the complete audit report and audit area plan must be submitted to the Responsible Authority".

The hearing of this matter occurred on 7 December 2007, with Mr Dalton for the Applicant and Ms Sharp for Council making submissions to me. A copy of their written submissions are retained on the Tribunal file (I appreciate the helpful summary of the relevant case law set out in the Maddocks written submission).
Mr Dalton impressed upon me (and Council did not contest that):
- most of the relevant works involved repairing items at the rear of the property that were previously either unsafe, worn out or both;
- the total value of the works is only $2000-$3000.
The appeal site falls within a Mixed Use Zone and is also affected by an Environmental Audit Overlay ("EAO") and a Heritage Overlay HO 334.
Although Clause 32.04-4 of the Planning Scheme might otherwise have created a permit trigger for the relevant works under the Mixed Use Zone, Ms Sharp conceded at the hearing that these works entirely fall within the Mixed Use Zone exemptions in the same clause. Ms Sharp maintained her "no permit trigger" position despite acknowledging that the Council Planner's Report suggests there is a permit trigger under the Mixed Use Zone. The Tribunal prefers Ms Sharp's position and accepts that there is no permit trigger here under the Mixed Use Zone.
It was common ground at the hearing that the Environmental Audit Overlay sets out certain requirements but does not in itself create any permit trigger.
Turning to the Heritage Zone HO 334 (being a precinct-based control), Clause 43.01-1 requires a planning permit to demolish or remove a building affected by this control. The Planning and Environment Act 1987 defines "building" broadly (see paragraph 12 of Ms Sharp's written submission), with this definition including a "structure". In addition, a permit is required for any "...repairs and routine maintenance which change the appearance of a heritage place or which are not undertaken to the same details, specifications and materials".
Bearing in mind that the new roller door is different in appearance to the old tilt door and that the side fence(s) have been re-built to a new height, I agree with the analysis at page 4 of Ms Sharp's written submission that a heritage permit is needed (unless any Clause 62.02 exemption exists) for all of the works in question here. In other words, I accept that:
- most of the works involve items that can be seen as "structures", within the definition of "building" for the purposes of the requirements of the Heritage Overlay;
- the installation of the new roller door involves different specifications and a different appearance to the old tilt door; and
- the work to the rear side fence(s) cannot be regarded as routine maintenance (even if the same materials were used) if they have been re-built to a different height.

Can the applicant rely on any Clause 62.02 exemptions?

There was some debate at the hearing whether the apparent permit triggers under the Heritage Overlay are avoided by the Applicant being able to rely on the various exemptions under Clause 62.02-2 of the Planning Scheme. Whilst that clause does specify various types of minor works where no permit is required, this is subject to a catch-all provision at the end of Clause 62.02-2 that "This does not apply if a permit is specifically required for any of these matters".
Whilst it is true that no specific permit trigger arises from the EAO, equally I am satisfied that there are specific permit triggers for the relevant works under the Heritage Overlay (see my analysis above), in the manner anticipated by this catch-all provision.
Accordingly, my finding is that the Applicant is unable to take advantage of the Clause 62.02 exemptions because of this catch-all provision, and it remains the case that a heritage permit is required for the works.

Is there a reasonable nexus between Condition 3 and the relevant works?

The leading case of Pyx Granite v Ministry of Housing and Local Government [1958] QB 554 is authority that for Condition 3 to be valid, it must fairly and reasonably relate to the permitted development.
In practice, the Pyx Granite test is commonly brought into play where there are contentious permit conditions which involve onerous requirements that may go beyond the scope of the actual development in question, or where it is alleged that Council is seeking to pursue policy aims (however worthy) that have limited direct relevance to the development. For example, a condition requiring the expensive signalisation of a road intersection might be vulnerable to challenge under Pyx Granite if it is difficult to prove the intersection will carry higher traffic levels directly arising from the new proposed development.
However another aspect to the Pyx Granite test is simply that the condition must be a reasonable one, in the circumstances[1]. If the condition stands out as being excessive, misguided or draconian, it can potentially be deleted on the basis that it is unreasonable.
My finding is that I am satisfied that Condition 3 should be deleted on the basis that it is unreasonable. I rely on the following points in reaching this conclusion.
First, it is common ground that the appeal site has been used for residential purposes for many decades, without any known history of earlier commercial or industrial use.
Second, there is no immediately abutting commercial use that might create a material risk of the leaching or other transfer of contamination on to or underneath the site.
Third, it was conceded by Council at the hearing that the EAO was imposed over a relatively large section of Fitzroy as part of the introduction of the new format Planning Scheme for Yarra. Furthermore, during the hearing Council did not tender any environmental report or other information indicating any known material risk that this particular site is contaminated. In these circumstances, my impression is that the appeal site is affected by the EAO where Council has apparently taken a "precinct approach" to implementing the EAO, rather than there being any known risk of contamination of this particular site.
Fourth, I note that the pertinent purpose of the EAO is "To ensure that potentially contaminated land is suitable for a use which could be significantly adversely affected by contamination". Given that the works in question are fairly minor, involve minimal disturbance to the soil on the property and are part of the on-going residential use of the property over many decades, I am satisfied that the purposes of the EAO are met without needing to apply Condition 3.
I should clarify here that I might have looked more favourably at a permit condition requiring environmental investigation work where:
- the site has a current residential use but was used for commercial/industrial purposes at an earlier stage;
- there has been a history of commercial/industrial use of a neighbouring site, that might create a risk of contamination migrating on to or underneath the appeal site;
- the works on an appeal site affected by an EAO involve major disturbance to or exposure of the soil over a significant area of the site (eg demolishing all or a substantial part of a period dwelling, or clearing a substantial sealed courtyard or concrete area that has existed for a long period); or
- some credible environmental investigations have been carried out which indicate that, despite the long term residential use of the property, there is nevertheless a real degree of risk that the site might be contaminated.
However the important thing is that none of these type of circumstances apply here. This seems a fairly straightforward situation where there is a long term historical residential use of the site, the proposal involves minimal disturbance of the soil, and there are no known environmental investigations or neighbouring uses indicating a risk of contamination on the site.
Fifth, my finding that Condition 3 is unreasonable is consistent with the previous decisions of the Tribunal in:
- Mary Poulakos v Port Phillip City Council (VCAT Ref. P3446/2003), where the Tribunal allowed the development of a five storey building on a site affected by an EAO. Member Komesaroff deleted a draft Council environmental improvement contribution permit condition, relying on the past use of the site only for office and residential purposes;
- Bird de la Coeur Architects v Yarra CC [2003] VCAT 1720. Whilst it appears no EAO was involved in this case, the following statement from paragraphs 11 and 12 is still on point - "But environmental audits are an expensive process, and the widespread use of environmental audits has the potential to add substantially to the cost of housing an important social consideration...As Ms Dowsey observed, most urban environments are contaminated to some degree, if only with lead from vehicle exhaust emissions. The legislative framework does not appear to intend the application of environmental audits on a universal basis in urban environments. In this context I think where the history of land use is known, there needs to be some evidence that a historic land use can result in dangerous levels of contamination where the history of land use is unknown, an audit may be necessary and the decision would need to be based on the history of land use in the area generally..."; and
- Heavenly Queen Temple Society Inc. v Maribyrnong City Council 20 VPR 49. Whilst again no EAO was involved in Heavenly Queen, the following passage (with my emphasis) from paragraph 38 is still of assistance - "Whilst (following the "precautionary principle") I accept that all stakeholders need to be proactive in dealing with contamination issues, equally it is the case that there are different levels of environmental risks and different types of new uses, with the practical result that each situation needs to be assessed on its own merits in terms of an appropriate way of managing any contamination and the associated risks".

In conclusion, for the reasons set out above, my overall finding is that Condition 3 should be deleted on the basis that it is unreasonable.

[1] The requirement for a permit condition to be reasonable is reinforced in Section 2.3 ("Validity of conditions") of Part 2 ("Preparing and organising conditions") of the "Writing Planning Permits" booklet published by the Dept of Sustainability and Environment (2nd Edition, February 2007).

Environment Act 1987

Norman & Tinney v Yarra CC (Red Dot) [2008] VCAT 309 (19 February 2008)

Norman & Tinney v Yarra CC

At a glance

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Judgment (15 paragraphs)

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Legislation Cited (2)

Cases Cited (1)

Norman & Tinney v Yarra CC (Red Dot) [2008] VCAT 309 (19 February 2008)