Plaintiff v Defendants

2 This is the fourth occasion that an application for a permit under the Banyule Planning Scheme ('the Planning Scheme') for the subject land has been before the Tribunal. Each application for review to the Tribunal has been made under s 77 of the Planning and Environment Act 1987 (Vic) ('P & E Act'). [2]

3 The most recent application to the Tribunal included works intended to:

• convert a garage into a rumpus room and replace the driveway with landscaping;
• provide a new garage at the rear, accessed from a right-of-way;
• narrow an existing double driveway to enable more landscaping to be provided in the front set back; and
• close an internal door and enable the building to be used as a single dwelling.[3]

4 The Tribunal hearing extended over two days. A landscape architect and planner were called to give expert evidence for the applicant. The Council and four objectors appeared before the Tribunal and opposed the application.[4]

5 The Tribunal identified the matters for determination as whether a permit should be granted and, if so, what conditions should be applied. The Tribunal summarised the key issues as:

• What guidance is provided by, and what weight is to be given to the previous Tribunal decisions?
• Does the development respond to its built form and policy contexts?
• Would the development provide acceptable amenity for neighbours and future residents?[5]

6 Consideration of the key issues extended for over 60 paragraphs of the Tribunal decision.

• Great weight must be given to the preceding decisions. While a proposal before the Tribunal is determined de novo, it is incumbent on the applicant to demonstrate that the changes to the application are sufficient to address the concerns consistently identified as to neighbourhood character, policy and amenity.[6]
• The proposal is not respectful of the character of the area. It fails to provide an acceptable front setback by a factor of many metres. The dwelling is not slightly forward of its neighbours, but forward by up to 4m, a very obvious intrusion into the streetscape.[7]
• The dwelling has a site coverage and massing that is out of place. Its side setbacks are less than its neighbours, its site coverage is significantly greater than the preferred 40%, and its height exceeds the preferred 9m (or 10m on a sloping lot).[8]
• As a result of its excessive massing, setbacks and site coverage, there is little room around the dwelling to contribute to the valued landscape character of the area. Both street trees and trees in private gardens contribute to this character. While the proposal might add one larger tree in the front, there would be no space for moderate or taller trees to the sides and at the rear of the dwellings.[9]
• The proposed development and landscaping fails to properly balance the aspirations for multiple dwellings in established areas while contributing to the desired neighbourhood character. It continues to be too large, with excessive hard surfaces and with too little space provided for landscaping.[10]
• A more robust change is required, including to the existing dwelling, before two dwellings can be approved on this site. This proposal would have little chance of being approved if it had not already been constructed. Its construction is not a sufficient reason for it to gain a planning permit. It has not responded to the entirety of the comments of the previous Tribunal decisions. The development should demonstrate greater compliance with policy, Schedule 2 to the General Residential Zone clause of the Planning Scheme, and the consistent findings of the Tribunal.[11]
• Matters of internal open space, overlooking and amenity for neighbours and future residents were not determinative of its decision.[12]

8 The applicant seeks leave to appeal on 10 questions.[13] They are categorised by counsel for the applicant into two groups - questions relating to repeat reviews, and questions relating to the Tribunal's duty to act fairly and in accordance with the substantial merits of the case.[14] The first group contains four questions:

(1) Did the Tribunal err in taking into account an irrelevant consideration in the form of the principles for assessing a repeat appeal?

(2) Did the Tribunal misapply the principles for assessing a repeat appeal in failing to properly consider the merits of the proposal and finding that the proposal before the Tribunal was a classic repeat appeal and not a correcting repeat appeal?

(3) Did the Tribunal err, on the evidence before the Tribunal, in holding that the proposal before the Tribunal was a classic repeat appeal and not a correcting repeat appeal?

(4) Did the Tribunal err in identifying those aspects of the proposal required to be addressed in a correcting repeat appeal?

(5) Did the Tribunal err by not giving proper weight to the existing dwelling in the context of bulk and massing and setback considerations?

(6) Did the Tribunal err in holding that since the previous Tribunal decisions there have been no significant changes in fact or law?

(7) Did the Tribunal err in giving insufficient weight to relevant considerations being Plan Melbourne, the Heidelberg Activity Centres and Precincts, the Heidelberg and Austin Hospital Health Precinct and clause 21.06 of the Planning Scheme?

(8) Did the Tribunal err in giving weight to the statement of significance in the schedule to the Vegetation Protection Overlay?

(9) Did the Tribunal err, in the absence of evidence, in holding that the dwelling has a maximum height of 11.2m and that the height of the building exceeds the preferred 9m (or 10m on a sloping lot)?

(10) Did the Tribunal err in failing to accord to the parties natural justice in making such a finding absent giving notice to the parties of this matter (the matter in the preceding question) upon which the Tribunal relied and providing the parties an opportunity to make submissions on the issue?

10 In Secretary to the Department of Premier and Cabinet v Hulls,[15] the Court of Appeal gave detailed consideration to the question of when leave to appeal will be granted under s 148(1) of the VCAT Act. A pivotal requirement is that an applicant must identify a question of law for which there is a real or significant argument to be put that error exists.[16] The Court will also have regard to the justice of the particular case,[17] and whether the applicant has identified a question of law that is of general or public importance.[18] The applicant must show that there is sufficient doubt attendant the question of law to justify the grant of leave.[19] The Hulls[20] decision applies to the present case.[21]

11 The basis for planning decision making in Victoria has been confirmed by the Court of Appeal in two recent decisions.[22] In Hoskin,[23] the Court of Appeal stated:

In determining whether a permit should be granted, the Council, as responsible authority in the first instance, and the Tribunal, in turn, when carrying out a merits review, must ultimately consider whether the proposed use and development is in the public interest in the sense that it will result in net community benefit.

Clause 10.04 of the planning scheme articulates this test as follows:

Society has various needs and expectations such as land for settlement, protection of the environment, economic well-being, various social needs, proper management of resources and infrastructure. Planning aims to meet these by addressing aspects of economic, environmental and social well-being affected by land use and development.

Planning authorities and responsible authorities should 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 for the benefit of present and future generations.

Consistent with the objectives of local government under the Local Government Act 1989, municipal planning authorities are required to identify the potential for regional impacts in their decision-making and co-ordinate strategic planning with their neighbours and other public bodies to achieve sustainable development and effective and efficient use of resources.

The test of net community benefit implicitly recognises that a proposal may have both benefits and disbenefits which must be jointly evaluated.

It follows that it will not be sufficient for objectors to simply establish that a particular proposal will or may cause some planning disbenefit in order to demonstrate that a permit should be refused. Conversely, it will not be sufficient for a permit applicant to simply demonstrate that a proposal will or may convey some planning benefit in order to establish that a permit should be granted.

To like effect, cl 65 of the planning scheme requires a responsible authority to decide whether a proposal for which a planning permit is sought will produce 'acceptable outcomes':

...

Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.

In Rozen v Macedon Ranges Shire Council, Osborn J addressed the test of 'acceptable outcomes' as follows:

The test of acceptable outcomes stated in the clause is informed by the notions of net community benefit and sustainable development. An outcome may be acceptable despite some negative characteristics. An outcome may be acceptable because on balance it results in net community benefit despite achieving some only of potentially relevant planning objectives and impeding or running contrary to the achievement of others.[24]

12 The Court then addressed the matters which a responsible authority must consider:

Section 60(1) of the P&E Act sets out a series of matters which the Council, as responsible authority and, in turn, the Tribunal on review must consider in weighing up a decision concerning a permit application:

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

(a) the relevant planning scheme; and

(b) the objectives of planning in Victoria; and

(c) all objections and other submissions which it has received and which have not been withdrawn; and

(d) any decision and comments of a referral authority which it has received; and

(e) any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development; and

(f) any significant social effects and economic effects which the responsible authority considers the use or development may have.[25]

13 The Court observed that cl 65.01 of the relevant planning scheme provided:

...

Before deciding on an application or approval of a plan, the responsible authority must consider, as appropriate:

• The matters set out in Section 60 of the Act.
• The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
• The purpose of the zone, overlay or other provision.
• Any matter required to be considered in the zone, overlay or other provision.
• The orderly planning of the area.
• The effect on the amenity of the area.
• The proximity of the land to any public land.
• Factors likely to cause or contribute to land degradation, salinity or reduce water quality.
• Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site.
• The extent and character of native vegetation and the likelihood of its destruction.
• Whether native vegetation is to be or can be protected, planted or allowed to regenerate.
• The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.[26]

Both the terms of s 60 and the terms of cl 65.01 of the planning scheme mean that the consideration of most planning permit applications is multi-factorial. It will require not only a predictive judgment as to potential factual consequences of the proposed use or development but also an evaluation of the weight to be given to individual matters in the context of the case as a whole.[27]

15 These passages describe the duty of councils and the Tribunal in planning matters. They apply to repeat applications just as much as they apply to proposals raised for the first time. They are the fundamental basis on which planning applications are decided on their merits by councils and by the Tribunal.

Principles relating to repeat administrative reviews

16 Applications for review in relation to sites where there have been previous applications for review and decisions by the Tribunal raise additional considerations. Following El Alam v City of Northcote,[28] there is no doubt that the doctrines of res judicata and issue estoppel as known to courts in civil proceedings do not apply to reviews in the Tribunal under Division 2 of Part 4 of the P & E Act.

17 Proceedings under Division 2, including applications under s 77, typically involve the de novo review by the Tribunal of decisions made by responsible authorities on permit applications. They include applications to the Tribunal to review decisions to grant or refuse to grant permits, or fail to consider whether a permit should be granted. They also extend to the review of decisions relating to the imposition of conditions in permits. In the two decades that have elapsed since the decision of the Supreme Court in El Alam,[29] it has not been contended that the doctrines of res judicata or issue estoppel as they are known in civil proceedings have any role in the planning merits reviews before the Tribunal under Division 2.

18 Given the absence of the common law doctrines of res judicata and issue estoppel in these proceedings, it has been necessary for the Tribunal and its predecessors to consider what weight should be given to previous decisions of the Tribunal concerning the same land. The need to consider the weight to be given to previous administrative decisions is not unique to decision-making in planning.

19 In Re Drake v Minister for Immigration and Ethnic Affairs (No 2),[30] Brennan J highlighted the need for consistency and lack of arbitrariness in administrative decision-making:

Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. [31]

20 Later, his Honour said as to the need for a Minister to adopt a policy to guide decision making:

There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process. [32]

21 Recently in Kay v Child Support Registrar,[33] a division of the federal Administrative Appeals Tribunal said:

Mr McClelland relied on a passage from a paper delivered by a former President of the Tribunal, Downes J. The paper was entitled "The Implementation of the Administrative Courts' Decisions" and was delivered to the International Association of Supreme Administrative Jurisdictions VIIIth Congress held at Madrid, Spain from 26 to 28 April 2014. In part, he said:

... [G]ood administration involves consistency. One of the purposes of the Australian Government establishing the Administrative Appeals Tribunal was to improve the quality of administrative decision-making by the Australian Government. ...

A characteristic of common law systems of jurisprudence is the doctrine of precedent. The doctrine is accompanied by two characteristics not so common in continental European jurisprudence. The first is the giving of detailed reasoned judgments. The second is the publication and ready availability of the decisions of courts. These common law characteristics are carried through to the work of the Administrative Appeals Tribunal.

The legislation governing the decisions of the Administrative Appeals Tribunal requires that the Tribunal give written reasons for decisions which include the Tribunal's findings of fact together with reference to the evidence or other material on which the findings are based. The decisions of the Tribunal are accordingly contained in published documents ...

...

The giving of detailed reasons for decision and the publication of those reasons are the matters which underpin the doctrine of precedent. Their presence naturally leads at least to an informal doctrine of precedent. Uniformity of decision-making is desirable. The publication of reasons makes it possible. Accordingly, although no res judicata or other estoppel and no formal doctrine of precedent exists in administrative law, members of the Administrative Appeals Tribunal will follow earlier decisions of the Tribunal unless they are satisfied that the earlier decision is manifestly wrong. This is particularly so when the same issue arises in proceedings between the same parties.

...

Mr McClelland also referred us to a passage from a paper presented by the Tribunal's President, Kerr J, to the Tax Bar Association of Victoria on 4 June 2013 when he said:

Members of the Tribunal are not bound to follow other AAT decisions but, unless persuaded that an earlier decision of the Tribunal was plainly wrong, in practice they usually do for reasons of consistency and sound administration.[34]

22 In Skoljarev v Australian Fisheries Management Authority,[35] a proceeding to review the refusal of a tribunal to grant a fishing licence under the Fisheries Management Act 1991 (Cth), Davies J said:

I have spent some time on this matter to emphasise again the significant part which rules and policies play in fair decision-making. Even judges, in their decision-making, operate in the context of structured rules. It should no longer be necessary for a decision-maker to indicate at any length the considerations which support the application of policy. Rules and standards are important, both as a means of giving effect to lawful policy which a government or an authority has determined and wishes to be implemented and as a means of ensuring that decisions, because they have been taken by reference to rules or settled standards, are fair, consistent and not arbitrary. [36]

23 The Tribunal decision[37] gives extensive consideration to the principles relating to repeat reviews:

While the Tribunal is not bound by precedent and must consider each application de novo, there are long established principles regarding repeat appeals that are relevant to this review. These principles are very well expressed by Member Sibonis in Zinc Melbourne v Banyule CC and I repeat his summary so there is no confusion:

In the seminal case of Amoco Australia Limited v City of Berwick the Planning Appeals Board (a predecessor of the Tribunal) had stated:

Although the Board believes that it should deal with this appeal on its merits it also holds that, in determining the appeal, it should pay regard to the previous decision of the Board and give great weight to that decision. Public policy demands that there be some end to litigation. If applicants were to repeatedly come before the Board, perhaps seeking to exhaust the patience of the Board or even in an attempt to pick and choose a suitable division of the Board to hear the appeal, then it would be to the detriment of the appeals system. Moreover repeated appeals would impose unnecessary costs on respondent parties including, in some cases, psychological costs. One can imagine a case where a developer wears down both a Responsible Authority and objectors by repeatedly making fresh applications. This ought to be discouraged.

and later:

... the Board believes that an applicant can make repeated applications for a permit and repeated appeals to this Board. However in determining any subsequent appeal the Board should take the earlier determination into account and give it great weight. Generally speaking the earlier decision should not be reversed unless the applicant can show a change in circumstances which warrant a different view.

In reaching its view in Amoco, the Board cited with approval the following passage from the decision of Watkins v MMBW:

We should also state that as a matter of principle the Tribunal should act with great caution when considering whether a previous decision should be reversed. A change in circumstances warranting a different view must be positively shown otherwise the reversal of earlier decisions would introduce such a state of inconsistency into the appeals system that chaos could occur with unsuccessful parties applying and appealing time after time.

As stated in Bainbridge Ridge Pty Ltd, a number of tests that may justify a departure from an earlier decision were identified by the Tribunal in the case of K & B Reichert v City of Banyule & Ors, as outlined in the following extract from that decision:

While the Tribunal is not bound by precedent, there need to be reasonable grounds for a later appeal determination to depart from a Tribunal view on a very similar proposal earlier. ... It seemed to me that the factors which might justify a departure from an earlier determination could include:

• Significant changes in the application itself;
• Changes in the circumstances of the land and its surrounds;
• Changes in planning policy; and/or
• Changes in the interpretation of the facts or law relevant to the Tribunal's consideration. [38]

24 The Tribunal distinguished between classic repeat reviews and correcting repeat reviews:

Sprut Pty Ltd v Stonnington CC further distinguished between classic repeat appeals and correcting repeat appeals. The former are described as forum shopping where the applicant puts forward the same or a very similar proposal, possibly with the aim of wearing down the opposition or hoping that another member might come to an alternate decision, which the respondents say are the aims of this review.

The applicant says this review is a repeat appeal because the application addresses the changes that the Tribunal had previously suggested might make the development acceptable. Sprut Pty Ltd v Stonnington CC further elaborated on the role of the Tribunal in repeat appeals by commenting that:

Irrespective of whether the repeat appeal is in the nature of a classic or correcting repeat appeal, the role of the Tribunal is not to determine the proposal before it would have satisfied the earlier (and perhaps differently constituted) Tribunal, nor to summarily determine the matter solely by reference to the Reichart principles. This is a sometimes misunderstood notion. As Amoco itself indicated, the role of the Tribunal is to still consider the new application before it on its merits but in doing so, to give great weight to the tribunal's decision on the earlier application having regard to the usual principles that have evolved for this purpose .

Further Tribunal decisions have added further nuance to the approach to repeat appeals within the context set out in Sprut. In Burton and Carter Pty Ltd v Frankston CC, the Tribunal said:

While any "correcting" proposal must be considered on its merits, as a whole and afresh, that is 'de novo', equity and fairness demands that if a permit applicant is found to have satisfactorily addressed the matters raised in the previous Tribunal decision then there is a reasonable expectation that a permit will issue.

Guided by these long established principles regarding repeat appeals, I must firstly identify what the previous Tribunals said about the proposal before them, and then assess what, if anything has changed. I must also determine if this review is a classic repeat appeal or a correcting repeat appeal, and finally determine the application de novo, on its merits guided by its response to the planning and built form contexts and whether the amenity it would provide to its neighbours and residents would be acceptable. In general I should give great weight to the findings and decisions of the previous Tribunals, unless it can be demonstrated that the application, its built form context or the policy framework have changed. Furthermore an alternate decision may be appropriate if the proposal before me can demonstrate that it has responded to clear directions from a previous review. [39]

25 The expressions 'classic repeat review' and 'correcting repeat review' are imprecise and are not statutory terms. They are not given definition in the P & E Act or in the Planning Scheme.

26 Repeat applications can come in many forms. Approval may be sought of the same use and development as was sought in a previous application. They may contain one or more correcting features, or seek approval for a development entirely different from that for which approval was sought in an earlier application.

27 In Rozen v Macedon Ranges Shire Council, [40] the Court concluded:

The weight to be given to the various considerations which may be relevant on the one hand, and to particular facts bearing on those considerations on the other hand, is not fixed by the planning scheme but is essentially a matter for the decision maker.[41]

28 This passage confirms that the weight to be given to the relevant considerations, and to the particular facts bearing on those considerations, is essentially a matter for the Council and the Tribunal.

29 This applies equally in the case of repeat applications. Planning decisions in earlier applications affecting the subject or surrounding land are often relevant considerations in the assessment of a later application. They will almost certainly be relevant when the same use and development of the same land is sought in both the earlier and later applications. It is for the later decision-maker to determine what weight should be given to the earlier decision. Assessment of the significance of correcting features in the context of a proposed use and development is pre-eminently a planning and not a legal matter.

Previous Tribunal decisions concerning the subject land

30 The first decision concerning the subject land is Petridis.[42] The proposal in this case was to construct two double-storey dwellings on the subject land. The main conclusions of the Tribunal were:

I find, however, the proposed development to be overscaled, inappropriately designed and sited in terms of streetscape.

It is acknowledged that the subject dwellings are sited generally in the same location as the former dwelling on the subject land. It is also acknowledged that the proposed development is both stepped back from the street at upper floor level at least for the westernmost of the two dwellings and the dwellings are quiet well articulated. It is also accepted that the architectural style is one reflective of other dwellings in the area. However, given the larger width and height of the built form proposed when compared to the modest dwelling which formerly occupied the site and those on either side, the siting of the development forward of adjoining dwellings would make it unacceptably bulky when viewed from the streetscape. Also, as earlier noted the subject site sits in an area of transition between more modest houses to the west and more substantial housing to the east. To the extent that it might be argued that the scale of this proposal relates to the larger scale dwellings to the east, and in particular those across Odenwald Road, the proposed dwellings remains inappropriate as they would not be set in large landscaped grounds and would fail to integrate well with neighbourhood character in this respect.

Further, the streetscape appropriateness of the development is reduced by the extent of driveways and garages located at the front of the site. While the double garages would be overhung in part by the level above and vertical panelling in their doors would be employed, this would be inadequate to sufficiently alleviate the prominence of those features in the front elevation of the development. The garages occupy an excessively large part of the ground floor of the lowest level of the two dwellings.

Moreover, the two crossovers from the street and associated driveways in combination with the limited setback would restrict the opportunity for substantial planting at the front of the dwellings which might assist the integration of the development with the streetscape.

...

Also, while the rear deck is proposed not to be roofed to help ensure the retention of the views from the property to the west, the proposed planting along the western side of that deck which is necessary to ensure privacy between the two properties could well negate the intentions for view retention. Further, I was not satisfied with the evidence presented that the existing screening vegetation planted along the eastern boundary of the neighbour's property would not be adversely affected by the development on the subject land, even if the development were to be set further off the boundary in places.

...

In summary, I agree with the Responsible Authority's submission that having regard to the established character of this area, a more responsive design would be smaller in scale, relocate the dwellings back in line with dwellings on adjacent properties and reduce the visibility of the garages at the front, as well as the first storey levels. This is clearly a difficult site to develop having regard to the topography and the nature of surrounding development, and the permit applicant has chosen to attempt to develop two substantial three bedroom dwellings with double carports. Not only does this fail to introduce the required diversity of housing type into the locality, as was submitted by the Responsible Authority, but it results in a form of development which is excessive for this site. Mr Bisset's submission to the hearing recognised the need to balance aspects of the site context and aspects of the broader neighbourhood context. He submitted it would be inappropriate if elements represented in the broader context were elevated to a status which determined a design response which was not sympathetic or responsive to the land form or the arrangement of buildings and outdoor areas on neighbouring properties. I find that the subject development does not suffer that particular problem alone, but rather fails to respond adequately to both factors.[43]

31 The concerns highlighted in the Tribunal's decision in Petridis[44] are:

• overscaling and inappropriate design and siting in terms of streetscape;
• failure to integrate with neighbourhood character because the proposed dwellings are not set in large landscaped grounds;
• undue prominence of driveways and garages in the front elevation of the development;
• restricted opportunity for substantial planting at the front of the dwellings;
• adverse effect on screen planting along the eastern boundary of the neighbour's property;
• need for more responsive design and smaller scale;
• need to reduce the visibility of the garages at the front as well as at the first storey level;
• excessive form of development for the site; and
• design response not sympathetic to the land form, or the arrangement of buildings and outdoor areas on neighbouring properties.

32 These themes were largely repeated 12 years later in the Tribunal's decision in Bainbridge,[45] in which the Tribunal held:

The previous Tribunal decision found two crossovers, associated driveways and a limited front setback "would restrict the opportunity for substantial planting at the front of the dwellings which might assist the integration of the development with the streetscape". In my opinion, this remains a critical failing of this proposal. The one tree and small shrubs existing in the front setback are not sufficient contribution to the landscape character.

..

Even if I accept the landscape plan is "sound", I am still not persuaded that the landscaping opportunities across the frontage of the site are sufficient. I agree with the previous Tribunal decision that two crossovers and associated driveways restrict the opportunity for substantial planting at the front of the dwellings which might assist the integration of the development with the streetscape.

..

Hence, my conclusion in regard to the neighbourhood character is that this proposal fails to contribute adequately to the character, particularly the landscape character, due to the expanse of garaging, driveways and pathways across the frontage of the site.

...

If I had been of a mind to grant a permit, I would have required screening of the rear terraces of dwelling 2 to limit overlooking of the decking and rear garden area of No. 18. Screening to limit rear overlooking between the proposed dwellings would also be required.[46]

33 Finally, in Zinc,[47] the Tribunal held:

The development has a stark appearance in the street, quite out of character with what exists in this neighbourhood. I agree with the submissions of the Council and the residents that the streetscape presentation is dominated by driveways and garages. What planting does exist within the remaining areas of the front setback is entirely ineffective in providing a garden setting reflective of that which characterises this neighbourhood.

The issue then becomes whether the Applicant's proposed changes as shown on the Application plans, will increase planting to the extent that an acceptable neighbourhood character outcome will be achieved. My conclusion is that they would not. The Council demonstrated that in an overall sense, there will be little (if any) meaningful change to the landscaping in the front setback, as compared to the scheme considered by the Tribunal in the earlier case. It does not, in my view, represent a significant change in the application such that I should depart from Member Naylor's decision to refuse a permit.

As to the Applicant's offer to modify the garage of Dwelling 2 and reduce the extent of the driveway further, I have not been persuaded that I should grant a permit subject to such a condition. It is too uncertain. No plan indicates how this change would be achieved, what consequential changes might be needed or, indeed, what the actual extent of increased landscaping may be. It is simply not possible to foresee whether it would respond acceptably to the concerns regarding the landscaping within the front setback.

...

It will be apparent that I do not accept the Applicant's submissions that the changes to the plans are sufficient to provide landscaping opportunities that will enable the development to integrate acceptably into the character of this neighbourhood.[48]

34 The findings of the Tribunals in Petridis,[49] Bainbridge[50] and Zinc[51] are consistent, and those of the most recent Tribunal decision are similar. The Tribunal's opinions have now been articulated over four successive decisions.

35 Counsel for the applicant submitted that the Tribunal did not identify or apply the correct legal test.[52] It was said that the Tribunal classified the review as a classic repeat appeal and not as a correcting repeat appeal.[53] It was submitted that:

If the Tribunal had applied the correct test, it would have concluded that the application before it addressed those issues raised by previous Tribunals and a permit ought issue, in accordance with the legitimate expectation raised by the findings in previous VCAT applications. [54]

36 Design changes relied on by the applicant included changes to the front presentation of the property, provision of separate vehicular access to Dwelling 2, increased landscaping space, deletion of a driveway and other enhancements.[55] The Tribunal made no mention of legitimate expectation.[56] The evidence before the Tribunal, it was said, allowed only the conclusion that a permit should issue.[57]

37 The arguments advanced in support of Questions 1-4 must be rejected. Firstly, the Tribunal correctly based its decision on the earlier decisions of Amoco Australia Ltd v City of Berwick,[58] Reichert v Banyule CC,[59] Burton & Carter Pty Ltd v Frankston CC,[60] and Sprut v Stonnington CC.[61] The applicant does not challenge any statement of principle found in these decisions. I can find no sign of misdirection or error in the principles relating to repeat reviews stated by the Tribunal.

38 Secondly, the finding that the application was a classic repeat review is a finding as to a matter of fact, and is for the Tribunal to determine. During the hearing, the Tribunal specifically asked the parties to identify possible changes that might lead to the grant of a permit rather than a refusal. Ms Moser, the town planner who appeared for the applicant, did so.[62] After considering these submissions, the Tribunal concluded that there were no significant changes in fact or law. [63] This was an assessment for the Tribunal to make, and it was clearly open on the evidence for the Tribunal to it to reach the conclusion it did.

39 Thirdly, the issues raised by the applicant before the Tribunal were archetypal planning issues of development or overdevelopment, streetscape, built form, access and landscaping. The issues as argued in this court are not questions of law, but questions of planning and of fact.

40 Fourthly, it cannot be said that the conclusions that the Tribunal arrived at concerning these matters were not open to it. Both the responsible authority and the objectors contended for the position that the Tribunal ultimately adopted. It was clearly open to the Tribunal to arrive at the conclusions that it did.

41 Fifthly, it was the duty of the Tribunal to decide the application on the planning merits having regard to the Planning Scheme, relevant planning considerations and the submissions and evidence before it. Regardless of the way the Tribunal saw the application having regard to previous applications, it is clear that the Tribunal ultimately decided the application before it on the planning merits.[64]

Existing dwelling in the context of bulk, massing and setback considerations - Question 5

42 The applicant contends that the Tribunal failed to give proper weight to the fact that the dwelling exists and has existed since 2002/2005.[65]

43 The contention must be rejected. It is clear in the reasons that the Tribunal had regard to the existing building in many ways and in the context of bulk, massing and setback considerations. The Tribunal:

(a) described the existing two-storey building in detail, including its two front entries, garages, driveway, open space, internal configuration including its two kitchens, several family living rooms, multiple bathrooms and bedrooms;[66]

(b) stated the dimensions of the setbacks of the dwelling from respective boundaries, found the site coverage to be 58.3% and the permeability to be 19%;[67]

(c) referred to aspects of the existing buildings fenestration, landscaping, brick construction and terracotta roofing;[68]

(d) identified the maximum building height of 11.2m;[69]

(e) discussed bulk, massing and setback of the dwelling in the context of other dwellings in Odenwald Road near to the subject land, describing these dwellings as having medium height vegetation and one canopy tree in the order of 8-10m in height;[70] and

(f) stated that there were approximately six dwellings proximate to the site that shared this characteristic, and the street as a whole had a green landscape setting but with some notable gaps.[71]

As a result of its excessive massing, setbacks and site coverage, there is little room around the dwelling to contribute to the valued landscape character of the area. ...

I find that the proposed development and landscaping fails to properly balance the aspirations for multiple dwellings in established areas while contributing to the desired neighbourhood character. It continues to be too large, with excessive hard surfaces and with too little space provided for landscaping.[72]

45 Finally, the submission that the Tribunal did not act fairly and according to the merits of the case in failing to give proper weight to the fact that the dwelling exists and has existed since 2002/2005 is not a question of law for this Court. The question addresses the weight given by the Tribunal to a particular fact or circumstance. Determination of the proper weight to be given to a particular fact or circumstance is a matter for the Tribunal.[73]

Plan Melbourne, the Heidelberg Activity Centres and Precincts, the Heidelberg and Austin Hospital Health Precinct and clause 21.06 of the Planning Scheme - Question 6

46 The applicant submits that the Tribunal applied policy in a manner that caused it to fail to give proper consideration to the merits of the case and the identified need to address increased densities, especially in employment clusters.[74] It was argued that the Tribunal did not apply the objective set out in cl 21.06 of the Planning Scheme to adapt existing larger format houses to accommodate multiple households and/or encourage separate dwellings.[75]

47 This submission must also fail. Again the question as drawn refers to 'insufficient weight' which as I have said is a matter for the Tribunal. The Tribunal expressly referred to and considered Plan Melbourne, and amendments to local policies as was urged by Ms Moser.[76] It also referred to the General Residential Zone (to which the subject land had been rezoned since the last review) and to the significance of Schedule 3 to the Vegetation Protection Overlay of the Planning Scheme which affected the site.[77] The Tribunal referred to the forecast growth of Melbourne's population over the next decades, and to the State and local frameworks that encourage Melbourne to become a more compact city.[78] The Tribunal stated that policy acknowledges the growing diversity of households, and that established areas should have a more diverse housing stock to meet a wide range of housing preferences.[79] Further, it added that established suburbs such as Eaglemont also had a role to play in accommodating population growth, provided that development is tempered and respectful of the prevailing character of the neighbourhood.[80]

48 The Tribunal reviewed the matrix of planning policy, particularly cls 15, 21.04, 21.05, 21.06 and 22.02 of the Planning Scheme.[81] The Tribunal identified and reviewed policy support for the increased density of development on the site and in the surrounding area generally.[82] Equally the Tribunal considered changes to the policy framework as contended for by the Council which required greater weight to be given to retaining and enhancing a desired neighbourhood character, supporting reduced site coverage and encouraging more space to be provided in front of and around dwellings.[83]

Significant changes in fact or law - Question 7

49 The applicant contended to the Tribunal that there had been changes in the surrounding area and to the planning framework.[84] The applicant reiterated the changes to the surrounding area since 2013 in written submissions, listing:

• the demolition of a dwelling at 20 Odenwald Road, clearance of the site and a dwelling completed with two crossovers, two double garages facing the street and limited landscaping;[85]

• the construction of a large two storey dwelling at 12 Odenwald Street;[86]

• The redevelopment of at least six properties in Odenwald Road, Mount Street and the surrounding area;[87] and

• other changes identified by Ms Moser through aerial photographs and photographs.[88]

50 The applicant contended to the Tribunal that the changes to the planning framework were the introduction of Plan Melbourne, the General Residential Zone and its schedule, the Vegetation Protection Overlay and amendments to local policies.[89]

51 This contention must also fail. The changes to the local area built form and to the planning controls were all articulated by Ms Moser at the hearing and were considered and evaluated by the Tribunal.[90] After hearing the submissions of Ms Moser and the Council, and following an inspection of the site and its environs, the Tribunal considered that there had only been a limited change to the proposal and the streetscape.[91] Moreover, the planning policy framework changes were on balance adverse to the applicant as 'greater weight is to be given to neighbourhood character and landscaping'.[92] This led the Tribunal to conclude that 'there have been no significant changes in facts and law'.[93]

52 The findings and conclusions made as to changes of fact or as to the planning framework are open to the Tribunal and do not disclose any error of law. The impact of those changes, both positive and negative, on the applicant's interests was a matter for the Tribunal to evaluate.

The Statement of Significance in the schedule to the Vegetation Protection Overlay - Question 8

53 The applicant contends that the Tribunal took into account an irrelevant consideration, namely the Vegetation Protection Overlay ('the Overlay').[94] She says that no permit was required under this overlay, but the Tribunal nonetheless took into account the statement of significance found in the Overlay.[95]

The review site is affected by the Vegetation Protection Overlay Schedule 3. While no permit is required pursuant to the overlay, I agree with Ms Cincotta's submission that the statement of significance in the schedule confirms the importance of vegetation as part of the character of the area. Vegetation, particularly tall trees, is integral to the character, and it includes trees on private property. The Overlay encourages the retention and enhancement of vegetation, in particular tall trees that contribute to the character of the area. [96]

55 The Overlay is cl 42.02 of the Planning Scheme, and the 'Statement of nature and significance of vegetation to be protected' for the Eaglemont, Ivanhoe East and Ivanhoe Area ('the statement of significance') is Schedule 3 to the Overlay.

56 Section 60(1) of the P & E Act requires the responsible authority, and the Tribunal on review, to consider the relevant planning scheme. This includes in the present case the Overlay and the statement of significance. Likewise, clause 65.01 of the Planning Scheme requires the Tribunal to have regard to the matters set out in s 60 of the P & E Act and to the applicable planning policy frameworks, including overlay controls.

57 The Overlay is a planning control that affected the subject land, albeit that no permit was required under it. The statement of significance is relevant and confirms the importance of vegetation as part of the character of the area.

58 The Tribunal was entitled to conclude that the statement of significance highlighted the importance of vegetation to the character of the area, and that vegetation, particularly tall trees, was integral to the character of the area.

59 In addition, the subject land was within a Garden Suburban Precinct 3 control. Clause 22.02 of the Planning Scheme sets out the desired neighbourhood character for areas within the Banyule City Council area subject to this control. The Tribunal considered that for the purposes of the review, the relevant themes included:

• Create opportunities for planting new trees by providing space in front of, and around new dwellings.
• Create an attractive landscape setting around all dwellings.
• Canopy trees in the front setback will contribute to character of the area.
• Vegetation to the rear of buildings will soften the interface.
• Maintain consistent front setbacks.
• Second storey components should be recessed, modest in size, setback and screened.
• Front gardens should include one large tree and a permeable fence.
• Site coverage should be less than 40%.[97]

60 The Tribunal acted in accordance with these requirements when it took into account the Overlay and schedules to the overlay whilst noting that no permit was needed under the overlay control itself.

Finding regarding maximum height of dwelling and natural justice - Questions 9 and 10.

• the evidence before the Tribunal was to the effect that the maximum height of the building was 8.1m. The development therefore met Standard B7 of Rescode. The Council Officer's report confirmed that the development complied with this standard;[98]
• the finding that the height of the dwelling exceeds the preferred 9m (or 10m on a sloping lot) was not open to the Tribunal on the evidence;[99]
• the Tribunal introduced on its own initiative the issue of non-compliance with Rescode as it relates to height without prior notice;[100] and
• the Tribunal did not afford natural justice.[101]

62 The applicant provided amended application plans as part of the evidence before the Tribunal.[102] The application plans included elevations measured to Australian Height Datum ('AHD') levels on all elevations. The plan showing the north elevation shows a ceiling or eaves height of AHD 78.160 and a ground level of AHD 69.650.[103] This gives a vertical height of 8.51m. The roof ridge inevitably rises above the ceiling or eaves height. I was informed by counsel for the Council during the hearing that the building height of the roof ridge on the north elevation was 10.2m.[104]

63 The east elevation shows an even higher roof ridge height. It is the highest profile of the building. I was informed by the same counsel that scaling of the east elevation to the highest visible point being the ridge line to dwelling 2 from the ground level results in a maximum height of 11.2m.[105]

64 Counsel for the applicant said that her concern in this context was not that the Tribunal miscalculated the height.[106] Rather, her concern was that the Tribunal failed to raise this issue with the parties.[107]

65 Counsel for the applicant also accepted the finding by the Tribunal that the subject land fell approximately 2m across the front and 2.6m from the front to the rear.[108] This inevitably meant that the maximum height of the building would vary depending the elevation adopted for the measurement.[109]

66 I reject the applicant's submission that there was no evidence before the Tribunal to support the Tribunal's finding of maximum height of 11.2m or that there was a denial of natural justice. It is plain that there was evidence in the form of the east elevation of the applicant's amended plans. It is not disputed that the east elevation shows a maximum height of 11.2m resulting from the height of the ridges of the building and the slope of the subject land.

67 The applicant submitted amended full size application plans, elevations and AHD levels to the Council and to the Tribunal. It is to be expected that an expert Tribunal member would check the elevations shown on the applicant's plans given the contest about scale, bulk, massing, setbacks and streetscape appearance. The Tribunal viewed the existing building on site and in its environs a few days after the hearing.[110]

68 There was no need or requirement for the Tribunal to refer a measurement of maximum height off the elevations on the amended application plans to the parties before coming to its decision. The parties were well aware of the central issues including issues relating to building height. They were the same central issues in the three previous decisions. All parties had an ample opportunity to address and call evidence on these issues. The Tribunal also received into evidence photographs of the actual building.

69 The applicant was represented at the hearing by a professional planning advocate. She fully presented the applicant's position to the Tribunal, and was well aware of the importance of height under Rescode standards and generally. The applicant cannot be heard to complain if the Tribunal determines the maximum height of the proposal by reference to the applicant's own plans.

70 Given that the building is already erected on the subject land and represents existing built form, the maximum height of the building is an existing and continuing state of fact. This is not a case where the height of a new building could have been reduced had it been known that the height of what was proposed was problematic.

71 The Tribunal is not required to put every factual finding or inference that it may draw or derive from the evidence to the parties. It is entitled to draw inferences, make deductions and reach conclusions on the evidence and submissions before it. Natural justice requires that the parties be alerted to the issues that they have to meet and address. Here the applicant and her professional planning representative were entirely cognisant of the key issues and made cogent submissions to the Tribunal.

72 I am not persuaded that there is a real or significant argument that the Tribunal erred in law when it concluded that the building had a maximum height of 11.2m. There would be no utility in referring the proceeding back to the Tribunal to substantiate the finding of height.

73 The applicant's counsel submitted that even if the grounds were individually unsuccessful they should collectively lead to the setting aside of the Tribunal's decision. In my view whether the grounds are taken individually or collectively, they inevitably fail.

74 I have come to the conclusion that leave to appeal should not be granted. I am not satisfied that there is any real or significant argument that there has been any error on a question of law. There is insufficient doubt to justify the granting of leave. The questions do not have any general importance or public interest beyond the circumstances of this case. The application for leave to appeal is refused.

[1] Plaintiff's outline of submissions dated 26 February 2016 ('Applicant's submissions') [6].

[2] Zumpano v Banyule City Council [2015] VCAT 1572 ('Tribunal decision'); Petridis Cornetta Architects v Banyule CC [2000] VCAT 2090 ('Petridis'); Bainbridge Ridge Pty Ltd v Banyule CC [2012] VCAT 1641 ('Bainbridge'); Zinc Melbourne Pty Ltd v Banyule CC [2013] VCAT 2111 ('Zinc').

[4] The objectors subsequently informed the Court that they do not wish to participate in this proceeding - see the order of the Honourable Justice Emerton dated 28 January 2016.

[13] Applicant's submissions [13]-[50].

[15] [1999] VSCA 117; [1999] 3 VR 331 ('Hulls').

[19] Ibid [10]. See also: Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 [28]-[30]; Metricon Homes Pty Ltd v Softley [2016] VSCA 60 [11]-[21], [69] ('Metricon').

[20] [1999] VSCA 117; [1999] 3 VR 331.

[21] Metricon [2016] VSCA 60 [11]-[21],[69]; Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109 [51].

[22] Hoskin v Greater Bendigo CC [2015] VSCA 350 ('Hoskin'); Boroondara CC v 1045 Burke Road Pty Ltd [2015] VSCA 27 ('1045 Burke Road').

[23] [2015] VSCA 350.

[24] Ibid [45]-[50] (citations omitted).

[28] [1996] VicRp 95; [1996] 2 VR 672 ('El Alam').

[30] (1979) 2 ALD 634.

[33] [2015] AATA 429.

[35] [1995] FCA 1732.

[37] [2015] VCAT 1572.

[39] Ibid [11]-[14] (citations omitted).

[40] [2010] VSC 583.

[41] Ibid [172] (citations omitted); approved in 1045 Burke Road [2015] VSCA 27 [32], [102].

[42] [2000] VCAT 2090.

[43] Ibid [27]-[30], [35], [37].

[45] [2012] VCAT 1641.

[46] Ibid [27], [31], [33], [36].

[47] [2013] VCAT 2111.

[48] Ibid [15], [16], [17], [19].

[49] [2000] VCAT 2090

[50] [2012] VCAT 1641.

[51] [2013] VCAT 2111.

[58] (1983) 1 PABR 166.

[59] [1996] VICCAT 44.

[60] [2015] VCAT 1091.

[61] [2012] VCAT 1675. See further [23]-[24] above.

[102] Affidavit of Rosemary Zumpano affirmed 11 November 2015, Exh RZ-8; Affidavit of Thomas Donaldson Callander sworn 6 April 2016, Exh TDC1-TDC4.

[104] Transcript of Proceedings, Rosemary Zumpano v Banyule City Council (Supreme Court of Victoria, S CI 2015 05699, Garde J, 8 June 2016) 97.22.