Victorian Civil and Administrative Tribunal|2003-04-30

O'Connell Street Developments PL v Yarra CC [2003] VCAT 448 (30 April 2003)

PLANNING AND ENVIRONMENT LIST APPLICATION NO. P2678/2002

Planning and Environment List - s 79 Planning and Environment Act 1987 -Yarra Planning Scheme - Mixed Use zone- Heritage Overlay - Richmond Hill precinct - Apartments - Office - Former factory/warehouse - Five additional levels - Melbourne 2030 - Guideline decision - Question of Law - Weight to be given to Metropolitan Strategy - Policy - amenity - consideration given to context of land and nature of proposal -heritage - neighbourhood character - car parking - traffic - internal amenity.

APPLICANTS (Permit Applicants): O'Connell Street Developments Pty Ltd

DATES OF HEARING: Monday 17, Tuesday 18 and Thursday

Medium Neutral Citation [2003] VCAT 448

With respect to permit application no. PL02/0664, a permit is granted for use and development of an office, dwellings and associated car parking provision in accordance with the endorsed plans on land at 49 - 51 Stewart Street Richmond. The permit must include the following conditions:

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the advertised plans received in December 2002 and numbered TP01 to TP11 inclusive and endorsed Revision C, except for TP03 and TP07 which were endorsed Revision B, but modified to show:

a) Plans and elevations to show the full extent of demolition proposed.

b) A schedule of construction specifications indicating the construction of the proposed residences to be in accordance with the relevant Australian Standards for acoustic control, and specifically limiting internal noise levels to a maximum of 45dB(a).

c) All proposed external plant and equipment (including roof top plant and equipment) concealed from view from below and acoustically baffled.

d) Details and specifications of a bicycle storage system, supplemented by supporting documentation.

e) Baffling to existing street lighting to prevent light spill to the proposed dwellings, designed in accordance with the specifications of the relevant road authority.

f) A notation showing reinstatement of all redundant crossovers.

h) A schedule of all external materials and finishes (including colour and material samples) showing materials, colours and finishes to all external wall, roof, fascias, window frames, glazing types, doors, fences, paving, outbuildings and structures, with glazing being non reflective.

i) A schedule detailing the car park allocation for dwellings, office and visitors, which must include two car parking spaces for offices and five car spaces for visitors.

j) Provision of mirrors to improve visibility for vehicles entering and exiting at the bends of the ramps to car parks, and in the vicinity of the 3 metre wide section of car park adjacent to the lift.

k) The existing Tennyson Street entrance opening retained and closed with a grill or similar structure at the building face.

l) Retention of timber frames to the front section of the existing building.

m) Deletion of the copper canopy to Tennyson Street, and provision of a canopy over the entrance.

n) Deletion of reference to "steel bars to windows" and retention of the existing window frames, without glazing, and screens behind to provide natural ventilation.

o) Retention of the glazing above the proposed tilt up door at east face third bay.

p) Deletion of the reference to re-glaze with `opaque' glass, and replacement with simple obscure or translucent glazing.

q) The door at the centre of the east face blocked in as a panel, and retention of the threshold if this is original.

r) Retention of existing sloped sills on the fifth window bay in Tennyson Street.

s) Retention of the "Henry Bucks" sign on the front parapet, and retention of any other early signage recovered on cleaning back the wall face.

u) Widening of the openings from Tennyson Street, for vehicles to enter and leave the car park areas, to 4.2 metres.

v) Use of curved walls to adjacent dwellings to improve connectivity between living areas and balconies for Dwellings 13, 15, 8, 23, 25 and 28, generally in accordance with the Buckerfield Pty Ltd sketches retained on the Tribunal file.

w) Use of glass blocks for bathroom and bedroom windows of Dwellings 14, 19, 24 and 29 to maintain privacy, generally in accordance with the Buckerfield Pty Ltd sketches retained on the Tribunal file, or deletion of those windows.

x) Modification of Dwellings 3, 11, 21, 31 and 41 to increase the setback and improve solar access for balconies, generally in accordance with the Buckerfield Pty Ltd sketches retained on the Tribunal file.

y) The provision of suitable facilities to facilitate access for disabled persons into the building.

z) Modifications to west facing windows and balconies to minimise the potential for direct viewing to and from the AKM building

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

3. All areas set aside for parked vehicles and access lanes as shown on the endorsed plans must, to the satisfaction of the Responsible Authority, be:

b) Formed to levels and constructed, line marked, sealed, illuminated and drained.

4. Any existing vehicular crossing made redundant by the building and works depicted on the endorsed plans must be broken out and reinstated as standard footpath and kerb and channel to the satisfaction of the Responsible Authority and at the permit holder's expense. Any new vehicular crossings must be constructed to Council's standard vehicular crossing specification.

5. All damaged roads and footpaths adjacent to the development site must be reinstated to the satisfaction of the Responsible Authority.

6. Before the construction or carrying out of buildings and works in association with the residential uses commences, either:

a) A Certificate of Environmental Audit or a statement indicating that the land is suitable for residential use must be issued for the land in accordance with Section 57AA(5)(b) of the Environment Protection Act, 1970; or

b) An environmental auditor appointed under the Environmental Protection Act, 1970 must make a statement in accordance with Section 57AA(5)(b) of the Act that the environmental conditions of the land are suitable for the proposed sensitive use.

7. Prior to the occupation of dwellings a letter must be submitted to the Responsible Authority by an Environmental Auditor accredited with the EPA, to advise that all construction and remediation works necessary and required by an environmental audit or statement have been carried out.

8. Disposal of soil removed from the site during the construction phase must comply with EPA requirements for off-site disposal for potentially contaminated soil (ie EPA Publication No. 626, October 1998.).

9. The amenity of the area must not be detrimentally affected by the use or development, through:

a) The transport of materials, goods or commodities to or from the land.

b) The appearance of any buildings, works or materials.

c) The emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

10. The loading and unloading of vehicles associated with the commercial premises must be carried out entirely within the site.

11. Alarms associated with the commercial premises must be directly connected to a security service and must not produce noise beyond the premises.

12. Rubbish, including bottles and packaging material, must at all times be stored within the building and screened from external view. All waste collection for both residential and commercial uses on site must be undertaken by private contractors.

13. Storm water drainage of the property must be provided to the nearest Council pit of adequate depth and capacity, to the satisfaction of the Responsible Authority.

14. Areas must be provided inside the property line and adjacent to the footpath to accommodate pits and meters, and private pits, valves and meters must not be located on council property.

15. During the construction phase of the development, the following conditions must be met, to the satisfaction of the Responsible Authority:

a) Only clean rainwater may be discharged to the stormwater drainage system.

b) Stormwater drainage system protection measures must be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system.

c) Vehicle borne material from the premises must not accumulate on the roads abutting the site.

d) All machinery and equipment must be cleaned (if required) on site and not on adjacent footpaths or roads.

e) All litter (including items such as cement bags, food packaging and plastic strapping) must be contained within the site boundaries, and disposed of responsibly.

16. Before the development starts a Construction Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the Plan will be endorsed and will then form part of the permit. Three copies must be provided. The Plan must address, but not be limited to, the following:

a) Site contamination and disposal of contaminated matter.

b) Containment of dust, dirt and mud within the site, and the method and frequency of clean up procedures in the event of build up of matter outside of the site.

e) Delivery and unloading points and expected frequency.

f) A liaison officer for contact by residents and the Responsible Authority in the event of relevant queries or problems experienced.

g) An outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services.

h) Any requirements outlined within this permit as required by relevant referral authorities.

17. Except with the written consent of the Responsible Authority, demolition, or construction works must only be carried out between: 7am - 6 pm, Monday - Friday (excluding public holidays) and 9 am - 5pm, Saturday and public holidays. No works are to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environment Protection Authority's Guidelines on Construction and Demolition Noise.

18. This permit will expire if one of the following circumstances applies:

a) The development is not started within two years of the date of this permit.

b) The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

The Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

PLANNING AND ENVIRONMENT LIST PLANNING AND ENVIRONMENT LIST

For the Responsible Authority: Mr A Hooper, QC and Mr A Hooper of Counsel,

Milner, a Consultant Planner, as an expert witness.

For the Minister for Planning Mr M Dreyfus, QC, and Mr J Smithers, Solicitor,

(who was joined as a party): instructed by the Victorian Government Solicitor

Respondents/Objectors: Mr D Gabbedy, Ms T Blazey, Mr S Coxon,

For the Applicants for Review/ Mr J Gobbo, QC, and Ms S Brennan of Counsel,

Permit Applicants: Counsel, by direct brief. Mr Gobbo and

1. This is an application under Section 79 of the Planning and Environment Act 1987 ("the Act") brought by the permit applicant against the Yarra City Council's ("the Responsible Authority") failure to grant a permit within the prescribed time in relation to planning permit application no. PL02/0664. The permit application seeks permission for the use and development of the subject land for the purpose of office, residential apartments and associated car parking.

2. By letter dated 12 March 2003, Maddocks, solicitors for the Responsible Authority, advised the Tribunal and the other parties of a question of law arising in respect of the application. The letter referred to the Tribunal determination in Ashlyn Enterprises Pty Ltd v Yarra City Council (P1856/2002 - 24 February 2003) and requested that a legal member determine the question of law which was stated as:

"What is the legal status of the document(s) known as Melbourne 2030."

3. At the commencement of the hearing, Deputy President Horsfall joined the Members of the Tribunal constituted for the hearing of the merits of the planning application to consider directions in respect of the determination of the question of law.

4. At that time Mr J Smithers appeared for the Minister for Planning.

5. After hearing from the parties, orders were made that:

* the Minister for Planning be joined as a party, and

* pursuant to Clause 66 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the question of law be referred to Judge Higgins and Deputy President Horsfall for determination with submissions on this question to be heard on Wednesday 19 March 2003.

6. After discussion, additional issues associated with the question of law were identified as follows:

* Is Melbourne 2030 a strategic plan, policy statement, code or guideline adopted by a Minister in terms of Section 60(1)(b)(ii) of the Planning and Environment Act 1987?

* Is Melbourne 2030 a seriously entertained planning proposal?

* Has Melbourne 2030 been adopted within the meaning of Section 60(1)(b)(ii) of the _Planning and Environment Act 1987_and how?

* The applicability of the decisions in Australian Aluminium Shop Fitters and Lyndale and Black.

* The extent of public consultation before and after the adoption of Melbourne 2030.

* The appropriate legal criteria to be applied in deciding the weight to be given to Melbourne 2030.

7. At the hearing on 19 March 2003 before Judge Higgins and Deputy President Horsfall, Mr A Hooper QC made submissions for the Responsible Authority, Mr M Dreyfus QC instructed by the Victorian Government Solicitor made submissions for the Minister and Mr J Gobbo QC for the Applicant/Permit Applicant. No objector appeared at that hearing or made submissions. No evidence was adduced in the hearing of the question of law although some documents were tendered.

8. At the end of the hearing on that day the parties present consented to a proposal that, at the conclusion of the hearing of the merits of the application of review by Senior Member Sharkey and Member Cimino, the Tribunal be reconstituted to comprise Judge Higgins, Deputy President Horsfall, Senior Member Sharkey and Member Cimino pursuant to Section 108(6) of the Victorian Civil and Administrative Tribunal Act 1998, that the matter be determined without further hearing and that the reconstituted Tribunal have regard to any record of the proceeding in the Tribunal as previously constituted. At the end of the merits hearing before Senior Member Sharkey and Member Cimino, Mr Rantino for the Responsible Authority lodged a formal request for reconstitution to the same effect and the Tribunal was reconstituted accordingly on 2 April 2003. No further hearing took place.

9. The site and the area have been inspected and Judge Higgins and Deputy President Horsfall have had regard to the record of the proceedings as requested.

10. The parties' respective positions can be summarised as follows:

* Melbourne 2030 is a Strategic Plan and policy statement which has been adopted by State Government, and the Tribunal is required to consider it under Section 60(1)(b)(ii) of the Planning and Environment Act 1987;

* Melbourne 2030 in so far as it is an adopted strategic plan and policy statement is a seriously entertained plan, and to the extent that it proposes amendments to the planning scheme is a seriously entertained planning proposal, and

* The Tribunal should give substantial weight to Melbourne 2030.

Melbourne 2030 is in an embryonic state, the planning scheme has not been amended to give effect to it, and little if no weight should be given to it at the present time.

* The proposal is justified by the existing provisions in the planning scheme;

* It does not need to rely on Melbourne 2030 to justify the proposal;

* It does not see the debate on the question of law to be relevant for the proceedings, and

* If Melbourne 2030 is relevant it supports the proposal.

11. The issues are discussed under the following headings:

12. The other parties did not contest Mr Dreyfus' submissions that the documentation comprising Melbourne 2030 is as follows.

* Melbourne 2030 - Planning for Sustainable Growth dated October 2002 ("Metropolitan Strategy " - See definition in Ministerial Direction No 9).

* Draft Implementation Plan 1 - Urban Growth Boundary dated October 2002.

* Draft Implementation Plan 2 - Growth Areas, dated October 2002.

* Draft Implementation Plan 3 - Housing dated October 2002.

* Draft Implementation Plan 4 - Activity Centres dated October 2002.

* Draft Implementation Plan 5 - Green Wedges dated October 2002.

* Draft Implementation Plan 6- Integrated Transport dated December 2002.

* Advisory Note - Implementation in the Planning System, dated October 2002.

("Melbourne 2030" means all the documents, and "Implementation Plans" means the draft Implementation Plans and the Advisory Note including the draft Clause 12 in the Advisory Note.)

13. There is also a summary dated October 2002, a CD containing the documents and publications on the Department of Sustainability and Environment's website.

Distinction Between the Metropolitan Strategy and the Implementation Plans

14. Mr Dreyfus submitted there is a distinction between the first document, the Metropolitan Strategy, on the one hand and the Implementation Plans relating to implementation and further consultation. Whilst the status of the documents was contested, the distinction was not.

15. It was acknowledged by the parties that the Metropolitan Strategy or any aspect of the Implementation Plans (except the designation of the Urban Growth Boundary pursuant to Ministerial Direction No 10) do not as yet form part of the Yarra Planning Scheme as an incorporated or reference document or as an amendment.

16. Mr Dreyfus further submitted, and in doing so made a detailed comparison between the structure and text of the Metropolitan Strategy and the Implementation Plans, that the draft Clause 12 is on its face a restatement or translation of the Metropolitan Strategy as a State Policy in the State Planning Policy Framework ("SPPF"). We accept this proposition.

17. The next issue is what status does the Metropolitan Strategy have under Section 60(1)(b)(ii) of the Act which reads as follows:

"60. What matters must a responsible authority consider?

(1) Before deciding on an application, the responsible authority--

(b) if the circumstances appear to so require, may consider--

(ii) any strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council; and

18. Mr Hooper did not concede that any part of Melbourne 2030 had been adopted by the Minister. Mr Dreyfus said his instructions were that the Minister had adopted the Metropolitan Strategy.

19. However, clause 4 of Ministerial Direction No 9 provides that in preparing a planning scheme amendment, a planning authority must (inter alia) have regard to the Metropolitan Strategy. The Tribunal is also aware that the Minister has publicly announced Melbourne 2030. Produced were letters to the Tribunal and to all Municipal Councils on 7 and 8 October 2002 to apply and implement Melbourne 2030 and Hansard of 9 October 2002 records the Minister's statement about Melbourne 2030 as "A Matter of Public Importance". Signatures of the Premier, the Minister and other members of the Cabinet appear in facsimile on the Melbourne 2030 documents.

20. On the above material we find, and in doing so accept Mr Dreyfus' instructions on behalf of the Minister, that the Metropolitan Strategy has been adopted by the Minister and that it is a "strategy plan ... which has been adopted by a Minister....." for the purposes of Section 60(1)(b)(ii) of the Act.

21. We accept Mr Dreyfus' submission that in Section 60(1)(b)(ii) of the Act the word "adoption" has its ordinary English usage meaning and not the technical meaning of Part 3 Division 3 Sections 29 - 39 of the Planning and Environment Act 1987 for the adoption and approval of amendments to a planning scheme.

Section 60(1)(b)(ii) - "must" or "may" consider

22. Mr Hooper submitted that the opening words of Section 60(1)(b) "if the circumstances appear to so require, may consider" conferred on the Tribunal a discretion to consider the matters set out. Mr Dreyfus contested this and said that if the Tribunal found that "the circumstances appear to so require", the Tribunal must consider the matter. Mr Dreyfus relied on the decision of the Supreme Court of Victoria in RSL (Victorian Branch) Inc., Glenroy Sub-Branch v Moreland City Council [1998] 2 VR 406 as authority for the proposition that if the Tribunal finds that if the circumstances do require, then the Tribunal must consider the relevant plan or other matter. See Hayne JA at pages 413 - 4.

23. Mr Gobbo relied on Section 60(1)(b)(iii) and argued that if the matter was relevant under (iii), as the Metropolitan Strategy in his view was, the Tribunal is also required to consider it.

24. We agree with Mr Dreyfus, that that decision is authority for the proposition that if the Tribunal finds that if the circumstances do require then the Tribunal must consider the relevant plan or other matter.

Tests for Giving Weight - Australian Aluminium Shop Fitters and Lyndale & Black decisions

The test applied for seriously entertained planning proposals can be found in appeal decision P82/1162, 30 December 1982 - Australian Aluminium Shop Fitters and Glazing Company Pty Ltd v City of Fitzroy."

26. Page 1 also states:

"Melbourne 2030 has been adopted by the Victorian Government and sets out the Government's position on many issues relevant to land use and transport planning.

Melbourne 2030 has the status of a seriously entertained strategic plan and policy statement that should be considered in planning decision making where relevant."

27. The parties agreed with the proposition that decisions by the Tribunal on whether "the circumstances so require" under Section 60(1)(b) and the weight to be given to a proposed amendment to a planning scheme, policy or code are an exercise of discretion by the Tribunal and not decisions on questions of law.

28. Also not contested was that the decision of the Planning Appeals Board in Lyndale and Black Pty Ltd and I O Black v MMBW (P82/1729 and P82/1730) [1983] 7 APAD at 470 sets out principles that a planning authority and the Tribunal should consider in deciding the weight to be given to a planning proposal. Legislative effect has since been given to that decision by Section 60 (1)(b)(ii) and Section 84B(1)(f) of the Act, the latter which states:

"84B(1) In determining an application for review under this Act, the Tribunal-

(f) must (where appropriate) have regard to any amendment to a planning scheme which has been adopted by the planning authority but not, as at the date on which the application for review is determined, approved by the Minister;"

but the decision continues to be regarded as an authority setting out principles as to the weight to be given.

29. The following passages of Lyndale & Black are relevant.

"For many years the courts have held that the existence of a "seriously entertained planning proposal" is an important circumstance to be taken into account in the exercise of planning discretion. The leading case is Coty (England) Pty Ltd v Sydney City Council (1957) 2 L.G.R.A. 117. In that case the Land and Valuation Court of New South Wales held that a development proposal should be refused, although it had many desirable features, because it would be prohibited under a draft planning scheme."

"The principle that planning proposals should not be compromised is based upon a number of considerations. Firstly, it is important to protect the integrity of a proposed planning scheme. Such an approach minimises the number of nonconforming uses of land in the long run. Secondly, haphazard departures from a draft planning scheme make the maintenance of the plan difficult as a matter of administration. Thirdly, the principle recognises that the primary responsibility for planning policy rests with the responsible authority and the State Government and not with an appeals body such as the Planning Appeals Board."

"The true position is that a proposed change to the operative planning controls is a relevant consideration to be taken into account, whether or not the planning proposal is in the form of an adopted amendment to a planning scheme. However, the weight that should be given to such a planning proposal will vary according to a number of factors. Some of these factors are:

(a) The form of the planning proposal - a formal planning scheme amendment will be given much more weight than a planning proposal of a less formal nature.

(b) The stage which the planning proposal has reached in the planning process - greater weight will be given to a planning proposal which has reached an advanced stage in the planning process than to a proposal of an embryonic nature.

(c) The seriousness with which the responsible authority or State Government is pursuing the implementation of the planning proposal.

(d) Whether the grant of a permit would impair the objectives of the planning proposal and not merely be inconsistent with the strict letter of the planning proposal.

(e) The nature of the development or use for which a permit is sought - for example: a planning proposal will generally have greater weight when a permit is sought to develop vacant land or to subdivide land than when a permit is sought to use an existing building especially for temporary purposes.

This list is not intended to be an exclusive list of relevant factors that may determine the weight that should be given to a planning proposal."

30. We also consider that the factors for assessing weight set out in Lyndale & Black are relevant in considering the weight to be given to a strategic plan, policy statement, code or guideline under Section 60(1)(b)(ii).

31. Australian Aluminium Shop Fitters and Glazing Contractors Pty Ltd v City of Fitzroy [cited above] is a 1982 decision considering whether the then Planning Appeals Board should give weight to a code adopted by the local authority. In it the then Board Member, Mr Marsden, now a Senior Member of this Tribunal, set out factors the Board should consider in the exercise of its discretion in applying such a policy or code. At page 49 he said:

"If the discretion available is to be exercised in favour of the Responsible Authority in circumstances such as this, this Division of the Board is of the view that it must be assured that several necessary prerequisites have been fulfilled. Firstly, it is apparent that a policy or code should be based upon a specific and thorough research of the relevant issues and not on an elective whim. Secondly, it is desirable that some degree of public involvement has taken place, with participation from those people most likely to be affected. Thirdly, the objectives should be clearly and precisely stated and capable of implementation. Fourthly, no unduly disproportionate financial burden should be placed on any particular sector of a community in order to achieve goals which are of general benefit to the community at large. Finally, bearing in mind the delays inherent in achieving statutory recognition of policy objectives, it is desirable that there be clear evidence that the Responsible Authority is endeavouring to pursue such a goal as an end objective.

Even so, and having regard to all these criteria, it should be said that the rigid and inflexible application of a code will not be able to meet every planning situation which arises. Undoubtedly there will be occasions when the particular benefits of an application will warrant some concessions or departure from the provisions of a code, no matter how thorough its preparation."

32. Australian Aluminium Shopfitters also has been given legislative effect in Section 60(1)(b)(ii), but the Tribunal has continued to follow the decision as an indicator of the factors to be considered in assessing the weight to be given to a document referred to in that Section. Given that the list of factors in Lyndale and Black is not exhaustive, we consider the matters set out in Australian Aluminium Shop Fitters are also of assistance in assessing the weight to be given to proposed planning scheme amendments under Section 84B(1)(f). Mr Hooper said he had some concerns, not articulated, as to the Tribunal relying on this decision rather than Lyndale & Black, but we consider the decisions are complimentary and not contradictory.

33. Mr Hooper did not distinguish between the Metropolitan Strategy on the one hand and the Implementation Plans on the other.

34. He approached both as a proposal to amend the planning scheme and submitted that under the Lyndale and Black criteria they should be regarded as embryonic and should not be given the weight of a seriously entertained planning proposal.

35. He criticised the Tribunal decision in Ashlyn as according an incorrect status to the Metropolitan Strategy, and said that the Tribunal in Ashlyn acted in error when they held that they were "nevertheless of the view of that the introduction of Melbourne 2030 does have an effect on how these competing policies should assessed on a case by case basis" given that, in his submission, the Metropolitan Strategy has not been introduced.

36. He also criticised the Tribunal's suggestion that in an appropriate situation where it finds arguably strong competing policy propositions for and against a proposal, it would regard Melbourne 2030 as decisive (see paragraphs 13 - 15 of the decision). Mr Hooper submitted that the Tribunal should not have any regard to Melbourne 2030 and, if it did, should not have regard to it in a decisive manner.

37. The Tribunal in Ashlyn did not use the word "decisive" in this context, its relevant statement being that where a consideration of existing policy, for example, in relation to height, gave rise to differing arguable propositions, "the preferred position is perhaps discerned by reference to Melbourne 2030", although it did use terms like "fundamental" in discussing the "A More Compact City" strategy in the Metropolitan Strategy. However, we discerned that Mr Hooper's criticism was that the Metropolitan Strategy was premature or embryonic and not to be regarded as a seriously entertained planning proposal or policy, rather than a criticism of the Tribunal's view that it was entitled to give weight to a strategic plan or to a seriously entertained planning proposal in balancing competing elements of the current Planning Scheme. In relation to the question of law, Mr Hooper made no argument as to the actual weight that should be given to that particular element of the Metropolitan Strategy.

38. In relation to the weight to be given to the Metropolitan Strategy he submitted the statements in the Advisory Note that it is a seriously entertained planning proposal from Day 1 do not give it that status.

39. He referred to Hansard on 10 October 2002 where he submitted the Minister referred to a consultation process to take place.

40. He also referred to many passages in the Advisory Note that a further consultation and implementation process was contemplated. An appropriate example was set out under the heading "Draft Clause 12 explained" on page 5 of the Advisory Note as follows:

"Changes to the State Planning Policy Framework to give effect to Melbourne 2030 are proposed following the consultation period. This advisory note contains a draft of a new Clause 12 to be included in the State Planning Policy Framework in all planning schemes. Other consequential changes to the State Planning Policy Framework will also be required to remove superseded provisions and update references.

The draft clause sets out the directions, policies and implementation measures in Melbourne 2030 that are relevant to land use, development and subdivision. It is an example of how the directions and policies in Melbourne 2030 may be expressed in the State Planning Policy Framework following the consultation period.

From Day One, planning authorities, responsible authorities and other stakeholders are expected to consider and implement relevant parts of Melbourne 2030. To help identify which parts of Melbourne 2030 might be relevant to a proposal and to identify any gaps in the draft clause, councils, government departments, developers and the community are encouraged to use the draft clause to help them in considering Melbourne 2030. The draft is also provided for consultation purposes, and comments are welcomed. On the basis of practical experience during the consultation period, we would particularly like to know whether you find that the draft clause adequately expresses and gives effect to the land use, development and subdivision directions and policies in Melbourne 2030."

41. He expressed serious concerns of the City of Yarra that a premature application of the Metropolitan Strategy over the present planning scheme provisions could lead to inappropriate development, particularly in the City's heritage areas, which could not be reversed if the consultation contemplated resulted in changes to the Metropolitan Strategy and the Implementation Plans or if ultimately they were never made part of the Planning Scheme.

42. Mr Dreyfus' submissions for the Minister were on a different basis.

43. His first point was that the Metropolitan Strategy (as opposed to the Implementation Plans) was not a proposal, but a final strategy or plan that had been adopted by the Minister after extensive consultation. He produced a chronology of consultations commencing in December 1999, involving the release of discussion papers, two rounds of public consultation with a range of interest groups, OECD input, commissioning of technical reports from independent specialists, peer group reviews, a review of the draft Metropolitan Strategy by a reference group, and the issue of information bulletins, leading up to the release of the final document on 8 October 2002. On its face, it appears to represent an extensive consultation process.

44. Accordingly he submitted the Metropolitan Strategy was final and had been adopted after an extensive public consultation process, and that applying the tests as to weight discussed above, it should be accorded the status of a seriously entertained strategic plan and policy statement as asserted in the Advisory Note.

45. He further submitted that following the issue of Melbourne 2030 in October 2002 a number of steps for actual implementation had taken place namely,

* The adoption of Amendment VC16 which made amendments to the planning scheme in anticipation of the adoption of Draft Clause 12.

* The issue of the Advisory Note and the letters by the Minister to the Councils and the Tribunal referred to above.

* The amendment of the Planning Scheme to include the Urban Growth Boundary in the maps by way of Ministerial Direction No 10 and the issue of other Ministerial directions Nos 2, 3 and 9.

* The statement made on 9 October 2002 by the Minister in Parliament regarding a matter of importance where she stated "Melbourne 2030 is a plan that starts now."

46. Mr Dreyfus took us to the detail of the passages referred to by Mr Hooper in the Advisory Note regarding the consultation process. His submission was that the Metropolitan Strategy was final, and that the references in the Advisory Note were intended as a consultation process as to how the Implementation Plans will effectively implement it. In other words the Metropolitan Strategy is a given and future consultation is intended to be confined to its implementation.

47. He made no criticism or comment on the Ashlyn decision.

48. Mr Gobbo made a short submission as summarised above and supported Mr Drefus' case. Likewise he made no analysis of Ashlyn.

49. We agree with Mr Dreyfus' submission that the Metropolitan Strategy (as opposed to the Implementation Plans) is a final Strategy adopted by the Minister which the Tribunal may consider and if the circumstances so require, must consider under Section 60(1)(b)(ii).

50. Applying the tests in Lyndale and Black and Australian Aluminium Shopfitters it is a strategic planning document that can be accorded weight tor the following reasons:

* It has been adopted after an extensive consultation process, and

* The Minister and the State Government are pursuing its implementation on a serious basis.

51. As it is final and adopted, it is not necessary to consider whether it is a seriously entertained planning proposal.

52. Given our decision on the Metropolitan Strategy, it is not necessary to make any decision whether the Implementation Plans should be regarded as a seriously entertained planning proposal, and we comment that Section 84B(1)(f) would not appear to be applicable as draft Clause 12 is not yet in the form of an amendment to the planning scheme which has been adopted by a planning authority.

53. All parties agree that, at present, the Metropolitan Strategy is not law, in the sense that the Metropolitan Strategy is neither a reference document nor an incorporated document of the planning scheme, which has not yet been amended to give effect to the Metropolitan Strategy (with the exceptions discussed above).

54. So how does the Tribunal "implement" the Metropolitan Strategy and the Implementation Plans? Our view is that the Tribunal's obligation in making planning decisions is to apply the current planning scheme and in doing so is obliged under Section 60(1)(b)(ii) and (iii) to have regard to the Metropolitan Strategy. The Implementation Plans, as discussed in paragraph 52 above, would not appear to be a matter for relevant consideration under Section 84B(1)(f).

55. On the questions of law before us, we agree with the approach of the Tribunal in Ashlyn in finding that the Metropolitan Strategy is a relevant matter to consider as it was a strategic plan adopted by the Minister and they considered that the circumstances appeared to require them to do so.

56. Also on the questions of law we can make no comment on the way in which that particular discretion was exercised on the particular facts in that case. No argument was addressed to us on this matter.

57. As stated above in paragraph 53 there is no contest between the parties that at the present time the Metropolitan Strategy is not law, in the sense that it is not a reference document or an incorporated document of the planning scheme and as yet the planning scheme has not been amended to incorporate or otherwise give effect to the Implementation Plans.

58. The primary obligation of a responsible authority and the Tribunal when deciding on a permit application is to apply the existing law, being the appropriate legislation and the planning scheme currently in force, and whilst it is desirable that discretion be exercised in a way that does not compromise the Metropolitan Strategy, until it is incorporated in the planning scheme, it should not be the basis for the approval of a proposal that is inconsistent with or contrary to the controls or policies of the existing planning scheme. The following passage from Clause 11 of the SPPF states the task of responsible authorities and the Tribunal in applying policies in the schemes:

`The purpose of State Policy in planning schemes is to inform planning authorities and responsible authorities of those aspects of State level planning policy which they are to take into account and give effect to in planning and administering their respective areas. It is the State Government's expectation that planning and responsible authorities will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development."

59. The Tribunal should also be conscious that, despite the restraints suggested by Mr Dreyfus, the ongoing consultation may result in changes to the Implementation Plans and perhaps to the Metropolitan Strategy itself. As an example, we note in that even though the Urban Growth Boundary has been given legal status by Amendment VC16 and Ministerial Practice Direction No 10, no other planning scheme provisions or other law is in force to give it effect, and Draft Implementation Plan 1 - Urban Growth Boundary contemplates that "following this consultation period the Minister for Planning will determine its final location. Once the UGB has been settled by the Minister it will be permanent".

60. Ashlyn and this matter are not the first applications before the Tribunal where the Metropolitan Strategy has been raised. It is now commonly raised. Examples of earlier Tribunal consideration which in our view are consistent with the law are:

* the Member in the decision in Omiros One Pty Ltd, Chernov & Melbourne City Council (application P1287/2002 dated 23 February 2003) was not willing to give weight to the "A More Compact City" Strategy of the Melbourne Strategy as he found the site was outside the relevant activity centre, and

* the Members in the decision in Dzanovski v Banyule City Council (Application P1411/2002 dated 20 February 2002), that whilst

O'Connell Street Developments PL v Yarra CC [2003] VCAT 448

At a glance

Court

Decision date

Source

Judgment (429 paragraphs)

O'Connell Street Developments PL v Yarra CC [2003] VCAT 448 (30 April 2003)

Parties

Legislation Cited (3)