O'Neil v City of Moonee Valley [1999] VSC 26

(1971) 38 LGRA 6 Reading Australia Pty Ltd v. City of Moreland and Village Roadshow Pty Ltd (unreported) Coles Myer Properties Ltd v. City of Ringwood (Appeal Nos. 1994/24270 and 1994/28300) Director of Housing v. City of Knox (Appeal No. 1990/20327) Kentucky Fried Chicken Pty Ltd v. Gantidis [1979] HCA 20; (1979) 140 CLR 675 Michaelis Bayley (Vic) Pty Ltd v. Melbourne & Metropolitan Board of Works & Ors (1980) 44 LGRA 65 Minister for Aboriginal Affairs v. Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

1. On 20 June 1997, the first respondent, as responsible authority under the Moonee Valley Planning Scheme ("the planning scheme"), issued a Notice of Decision to grant to the second respondent, Reading Properties Pty Ltd, a permit to demolish the existing buildings on the Moonee Ponds Market site in the Moonee Ponds District Centre and construct on the site a place of assembly comprising 12 cinemas as well as shops and restaurants, with associated car parking. It is convenient to refer to the second respondent as "the applicant". Certain local residents and Hoyts Cinemas Ltd (the second appellant) had objected to the application for a permit. They appealed to the Administrative Appeals Tribunal ("the Tribunal") against the decision to grant the permit. The Tribunal gave extensive Reasons for Decision on 24 February 1998, indicating that it was of a mind to grant a permit, and directing that fresh submissions be made as to the conditions of the permit. After the hearing had been reconvened to deal with those submissions, the Tribunal, by a determination dated 21 April 1998, allowed the appeal in part, subject to a number of conditions, and directed, pursuant to section 85(1)(b) of the Planning and Environment Act 1987 ("the Planning Act"), that the responsible authority issue a permit in accordance with the determination.

2. This is an appeal against that decision brought by the appellants under section 52 of the Administrative Appeals Tribunal Act 1984 ("the AAT Act"), which was in force at the relevant time, and which confers a right of appeal from any decision of the Tribunal on a question of law which is involved in the decision. (See Transport Accident Commission v Hoffman [1989] VicRp 18; [1989] VR 197.)

3. In Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6 at 18, Smith J, with whom Adam J concurred, expressed in the following terms the circumstances in which error by the Planning Appeals Board (a forerunner of the Tribunal) might lead to an order nisi for review being made absolute:

. . .the appellant, in order to succeed in this case, has to demonstrate to the satisfaction of this Court that the Town Planning Appeals Tribunal went wrong in law in arriving at its decision. It would not be enough for the appellant to show that the Tribunal's reasons for its decision are so expressed as to suggest the possibility that the Tribunal proceeded upon a wrong view of the law. This Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.

4. A number of the grounds set out in the appellants' Notice of Appeal were not pursued. Mr Garde's submissions were concerned only with grounds related to clause 19 of the Metropolitan Regional Section of the planning scheme, which deals with car parking. It is not necessary to set out those grounds, as clearly they raise the essential question as to whether the decision of the Tribunal under that provision was made according to law.

5. The first listed purpose of clause 19 is "To provide car parking appropriate to the use of land". Clause 19-1, read in conjunction with clause 19-14, sets out "the number of car parking spaces required according to the use of land". For a place of assembly, the number is 0.3 spaces "to each seat or to each square metre of floor area, whichever is greater". Clause 19-1 goes on to provide that a permit may be granted to reduce the requirement by substituting 0.1 for 0.3 in that formula, if the applicant satisfies the responsible authority that less provision is justified, having regard to three specified criteria.

6. Clause 19-1A provides for the grant of a permit to reduce or waive the standard or reduced requirements "if the number of car spaces by which the standard requirement is reduced can be provided on nearby land". Clause 19-3 provides that if an additional building is constructed or an existing building extended, the car space requirement may be determined only for the additional building or extension, subject to certain specified criteria.

7. The significant provision for present purposes is clause 19-2, which reads:

If there is not enough space on the land or nearby, a permit may be granted to reduce or waive the standard and reduced requirements, provided any existing area for car parking is not reduced.

Before deciding on an application, the responsible authority must consider:

* Car spaces available on public land nearby, including any road or any land vested in or under the management of a public authority or municipal council;

* Public transport within a reasonable walking distance of the site;

* Any municipal traffic management or parking scheme for the area;

* The effect of any additional traffic generated by the lack of parking spaces on areas of architectural or historical significance or on existing or proposed off-street parking in these areas.

8. Clause 19-2 has been interpreted by the Tribunal in a number of decisions. To begin with, in Reading Australia Pty Ltd v City of Moreland and Village Roadshow Pty Ltd, decided on 8 September 1997, the Tribunal found, at page 13 of its Reasons for Decision, that "enough space" in the opening words of the provision must be interpreted as meaning enough space for the standard and reduced requirements "which are a particular pair of requirements relating to a single proposal . . . those requirements must be based on the use actually proposed". In the same case at page 11, the Tribunal adopted the finding in Appeal Nos 1994/24270 and 1994/28300 Coles Myer Properties Ltd v City of Ringwood that "nearby land" in clause 19 is to be interpreted as meaning "nearby land which is controlled by the applicant" and does not refer to public land or streets.

9. Finally, the Tribunal in Reading v Moreland at page 14 adopted the conclusion of the Tribunal in Appeal No 1990/20327 Director of Housing v City of Knox that the concept of "insufficient land" was not merely a spacial concept, but had "environmental, economic and social elements as well as a spatial element". It had apparently been put to the Tribunal in the Knox matter that clause 19-2 did not apply in green fields situations, but only to already developed sites, on the assumption that "you cannot find that there is not enough space on the land when a lesser level of development would mean that sufficient space on the land could be found for the required car parking". That Tribunal rejected that proposition and continued:

[While] the fact that a lesser level of development may result in there being enough space on the land to provide the car parking is a matter which should be considered in exercising the discretion provided by Clause 19-2, it is not the sole determining factor, and it certainly does not limit the discretionary power provided by the clause to the Responsible Authority or the Tribunal.

Where the ordinary meaning of words in a planning scheme provision [does] not lead one to an unambiguous interpretation of the meaning of the clause, it is important that the interpretation of the clause does not lead to a perverse result and that when making choices between alternative interpretations that the presumption is that planning scheme provisions are seeking to achieve a sound planning outcome.

As Mr Garde pointed out, that conclusion follows from clause 16 of the Metropolitan Regional Section of the planning scheme, which requires the responsible authority, before deciding on an application, to consider:

* If appropriate, the matters set out in Section 60 of the [Planning Act];

* The State, Regional and municipal planning policies;

* The purpose of the zone, reserved land or control;

* Any matter required to be considered in the zone, reserve, or control.

10. It was not suggested by either counsel that those findings as to the interpretation of clause 19-2 were wrong in law or should not be adopted by the Court. Mr Morris did submit that the finding in the Knox matter referred to in paragraph 9 above did not relate to the opening words of clause 19-2 but to the actual exercise of the discretion. That is not my reading of the finding.

11. In considering the matter before it, the Tribunal expressed the view that the sufficiency of parking was "perhaps the most critical issue in this appeal". It adopted the finding of one of the traffic engineers who gave evidence before it that the operation of the formula described in paragraph 4 above produced a "standard requirement" for the proposed development of 1,765 spaces and a "reduced requirement" of 712 spaces. It set out the terms of clause 19-2, observed that there had been some discussion at the hearing as to the operation of that provision, and specifically adopted the findings set out above from Reading v Moreland.

In the present case, the applicant proposes to provide 569 spaces, 489 spaces onsite, and 80 on the Adamco Supermarket site. The proposal is therefore deficient by 1,276 spaces from the standard requirement and by 223 spaces from the reduced requirement.

In this case the Applicant relies on the discretion available under Clause 19-2 which has already been set down.

The "Adamco Supermarket site" was a parking building across a local street from the site. The Tribunal did not state whether or not it was controlled by the applicant.

13. The Tribunal then went on to consider the evidence of the traffic engineers, and found that there were relevantly:

well in excess of 1000 readily available car parking spaces to cater for any shortfall which may occur. This far exceeds the likely demand. . . .it would be extraordinarily wasteful of resources to require each individual use or component of a District Centre to provide a full complement of parking.

On the basis of that finding, as well as its findings on other issues, it ultimately directed the issue of a permit, as set out in paragraph 1 above, without requiring the applicant to provide the number of car spaces prescribed by either the standard or reduced requirement.

14. Mr Garde submitted that the Tribunal had purported to exercise the discretion available under clause 19-2, but had failed to determine, before proceeding to consider whether to exercise that discretion, whether there was "not enough space on the land or nearby". A finding to that effect was, he submitted, an essential prerequisite to the availability of the discretion conferred by clause 19-2. Accordingly, the purported exercise of the discretion without making such a finding constituted a vitiating error of law in the decision of the Tribunal.

15. Mr Morris, in reply, did not dispute that the decision of the Tribunal, in so far as it related to car parking, had been made under clause 19-2, or that a finding that there was "not enough space on the land or nearby" was an essential prerequisite to the exercise of the discretion conferred by that provision. He submitted, however, that it could be inferred from the making of that decision that the Tribunal had considered the question and had made the necessary finding. I must reject that submission as a simple matter of logic. A further consideration arises from the need, which appears from paragraph 9 above, to take into account general town planning considerations in reaching a finding that there is "not enough space on the land or nearby". That is not a matter to which the Tribunal could give the mere lip service which Mr Morris suggested was inherent in its decision.

16. Mr Morris also submitted that for Mr Garde to succeed, he needed to show not only that the failure to make the finding was an error of law, but also that clause 19-2 is never available when a site is being redeveloped. The latter does not appear to me to be a relevant consideration.

17. I am satisfied that before purporting to exercise the discretion contained in clause 19-2, the Tribunal failed to consider whether there was "not enough space on the land or nearby" in the terms in which that expression has been interpreted in the authorities to which I have referred. I am also satisfied that the making of a finding to that effect is an essential prerequisite to the granting of a permit, pursuant to that provision, to reduce or waive the standard and reduced requirements for car parking laid down by clause 19-1.

18. It is not in issue that failure by an administrative tribunal to consider relevant matters can constitute "a vitiating error of law" in the terms of Portland Properties cited in paragraph 3 above. Whether such a vitiating error has occurred will always turn on the circumstances of the particular case, including the legislative requirements imposed on the tribunal in question. In Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675 Barwick CJ said at 679-680:

Of course, if it is shown that a Tribunal such as the present, in making an order within its competence, has failed to take into account relevant matters, its determination can be reviewed, as in this case, upon an order to review. So much is a settled facet of the relevant jurisprudence. But that course cannot be taken unless it clearly appears that there has been a material error of that kind. Whether or not it has occurred is a matter of fact and not of surmise. Failure in expressing reasons for decision is a very unsure guide to the resolution of such a fact, though in some cases it may be indicative. But in any case, such a failure to advert to some material circumstance, if it exists, must be weighed in the light of all the circumstances of the proceedings including the nature and extent of the charter of the Tribunal.

19. In Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works & Ors (1980) 44 LGRA 65, Fullagar J, after referring to Kentucky Fried Chicken and other authorities, said at 67:

. . . the cases show, as one would expect, that decisions of [the Town Planning Appeals Tribunal] are not to be set aside by over-legalistic analyses of reasons stated or by over-zealous drawing of inferences from things not stated.

20. Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40:

Not every consideration that the decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.

21. Bearing in mind those cautions, I note, however, the statement of the Tribunal, cited in paragraph 11 above, that sufficiency of parking was "perhaps the most critical issue in this appeal". I am satisfied that the error of the Tribunal, in not making a finding as to the necessary prerequisite of the exercise of the discretion under section 19-2 before purporting to exercise that discretion, was a vitiating error of law.

22. For the reasons given, there will be an order setting aside the decision of the Tribunal, and remitting the case to the Victorian Civil and Administrative Tribunal (consequent upon the operation of the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 and the Victorian Civil and Administrative Tribunal Act 1998, both of which came into operation on 1 July 1998) to be heard and decided again. I see no need to make any order as to the constitution of the Tribunal or the hearing of further evidence. Counsel may wish to make submissions as to costs.