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[2010] VSC 430
General information, not legal advice.
Supreme Court of Victoria
2010-09-22
OSBORN J
Original judgment source is linked above.
TOWN PLANNING - Central City Zone - Heritage Overlay - Exemption from permit requirement under overlay to develop a heritage place included in the Victorian Heritage Register - Land otherwise requiring permit under overlay by reason of site specific and precinct designations - Dual designation does not overcome plain terms of exemption - Purpose of exemption and scheme of Heritage Act 1995 support plain meaning - Background to provisions - Sections 1, 3, 32, 42, 48(1), (3), (1), , , , , 71A, (1), (1A) and Division 2 of Part 2 - , (2)(f) and (4) .
1 In July 2009, the third and fourth respondents ('the permit applicants') sought planning approval for the redevelopment of the rear portion of the Windsor Hotel site with a 26 storey tower.
2 The second respondent ('the Minister') is the responsible authority for developments with a floor area in excess of 25,000 square metres in the central City of Melbourne. Accordingly, it fell to him to determine the permit application in the first instance.
3 A planning permit was required under the Capital City Zone control, a Heritage Overlay control and a series of design and development overlay controls.
4 Under the Capital City Zone control a permit is required to construct or carry out buildings or works including demolition.[1] The design and development overlays control height and other parameters of development. Applications for permits under these controls are exempt from the provision of notice under s 52(4) of the Planning and Environment Act 1987 ('P&E Act') and from third party rights of review before the Victorian Civil and Administrative Tribunal ('VCAT').[2]
5 Under the Heritage Overlay a permit is required to demolish a building and to construct a building or carry out works on land.[3]
6 This permit requirement is not the subject of exemption from notice requirements, nor from third party rights of review before VCAT.
7 In December 2009, the Minister appointed an advisory committee to advise him on all relevant matters concerning the planning permit application. The committee heard oral submissions from the permit applicants, the Melbourne City Council and the plaintiff ('the National Trust'). In February 2010, the committee delivered a report to the Minister recommending the grant of a permit.
8 On 18 March 2010, the Minister issued a notice of determination to grant a permit for the redevelopment.
9 On 7 April 2010, the National Trust applied to VCAT for a review of that decision on a series of heritage related grounds. The application was of necessity limited to the decision made by the Minister in respect of the Heritage Overlay control.
10 The Heritage Overlay control contained within the Planning Scheme is, however, subject to the following proviso:
No permit required
No permit is required under this overlay:
...
11 The Windsor Hotel site is contained within a heritage place included on the Victorian Heritage Register.[5] The proposed redevelopment is entirely contained within the registered place save for a protrusion over a laneway being a 'services and recreational stick' which extends outside the registered place at one point.
12 On receipt of the National Trust's application to VCAT, the permit applicants objected to the jurisdictional basis of that application, save with respect to that part of the development outside the registered heritage place.
13 The Tribunal constituted by Senior Member Rickards upheld that objection by preliminary determination made on 21 May 2010. The National Trust now seeks to challenge this preliminary determination.
No permit is required for the heritage place referred to in the Heritage Overlay HO739 (Hotel Windsor) as it is included on the Victorian Heritage Register and therefore exempt pursuant to clause 43.01-2. As HO739 is exempt from the requirements of a permit then even though it is also included in HO500 the heritage place referred to as HO739 remains exempt.
That part of the proposal referred to as the "services and recreational stick" that is to cantilever over Windsor Place which is outside of the site defined as HO739 falls within HO500 (Bourke Hill Precinct). This part is not included on the Victorian Heritage Register, a permit is therefore required for this part of the proposal under clause 43. This part of the decision to grant a permit can be reviewed by the Tribunal under section 82 of the Act.
The consideration of a part of the proposal that is proposed in HO500 and not in HO739 does not enliven the Tribunal's jurisdiction to include the whole of the site that is on the Victorian Heritage Register to require a permit.
The National Trust as an objector under section 82(1) of the Act can seek a review but such application for review is confined only to issues relating to the part of the proposal that falls within HO500 being that part of the proposal that falls outside of HO739 and is located only within HO500.[6]
The Tribunal declares the application for review is confined to only that part of the proposal that is within HO500 under clause 43 Melbourne Planning Scheme.[7]
16 It is common ground that the Tribunal's reasons make clear that it intended to declare that the application for review was confined to that part of the proposal that is only within HO500 and not within HO739 under clause 43 of the Melbourne Planning Scheme ('the Planning Scheme').
17 The National Trust has obtained an order nisi under the Administrative Law Act 1978 to review, the Tribunal's preliminary decision on the following grounds:
(1) The Tribunal erred in law in misconstruing the Melbourne Planning Scheme and determining that the Tribunal's jurisdiction to consider the Application for Review was confined to only that part of the proposal that is only within the HO500 overlay under clause 43 of the Melbourne Planning Scheme (being part of the proposal referred to as the "service and recreation stick" which is proposed to cantilever over Windsor Place).
(2) The Tribunal erred in law in misconstruing the Melbourne Planning Scheme and determining that the exemption pursuant to clause 43.01-2 applicable to HO739 overlay control also applied to an assessment under the HO500 overlay control, notwithstanding that the Bourke Hill Precinct is not a heritage place that is listed on the Victorian Heritage Register.
(3) The Tribunal erred in law in misconstruing the Melbourne Planning Scheme and failing to determine that the Tribunal's jurisdiction to consider the Application for Review extended to a consideration of the merits of the proposal under the HO500 overlay control, notwithstanding that the consideration of the proposal under the HO739 overlay was exempt from the requirements of a permit.
(4) Having found that the Tribunal did have jurisdiction to consider the merits of the part of the proposal referred to as the "service and recreation stick" under the HO500 overlay control, the Tribunal erred in not extending that jurisdiction to the remainder of the proposal.[8]
18 The Windsor Hotel site is the subject of specification as a heritage place under the Planning Scheme overlay both in its own right (being listed in a schedule as HO739) and as part of the Bourke Hill Precinct (being a larger area listed in a schedule as HO500).
19 The Bourke Hill Precinct lies between Exhibition and Spring Streets, and extends back from Bourke Street both to the north and south, embracing properties fronting Bourke Street and in some instances extending through to Little Bourke Street and Little Collins Street respectively.
20 The National Trust contends that the exemption which applies to a permit required under the Planning Scheme by reason of HO739 (the site specific control) does not extend to the permit required by reason of HO500 (the precinct control). It was submitted that the Heritage Overlay imposes two separate controls which serve two different purposes. The site specific control is intended to protect the heritage value of the building itself considered in isolation from its surroundings. On the other hand, the precinct control is intended to protect the heritage value of those surroundings. It is submitted that as with all cases of dual or multi controls each control must be complied with.
21 This submission was refined in argument to concede that there is a single permit control but contend that there are two separate designations covering the subject land which serve two separate purposes and that the provision must be construed to give effect to both purposes.
22 It is further submitted that the different nature of the two controls invokes different considerations in their application. In broad terms, the site specific control requires consideration to be given to the impact of the proposed development on the heritage value and heritage significance of the building itself. In contrast, the area control is concerned with the impact of the proposal on the heritage value and character of the other buildings and streetscape within the designated heritage area. In a case where both a specific control and an area control apply regard should be had to both sets of considerations.
23 The dual nature of the control reflects the policy basis in clause 22.04 of the Melbourne Planning Scheme which contains a local planning policy relating to heritage places within the Capital City Zone. This policy has as separate objectives:
24 It is further submitted that if the HO739 exemption is construed as extending to the HO500 permit requirement, there would be no requirement or necessity for the relevant decision maker to have proper regard to heritage considerations relating to the area control, e.g. impact on other buildings and streetscape.
25 It is submitted that s 73(1A)(a) of the Heritage Act 1995 ('Heritage Act') permits but does not require such consideration to be had when the decision as to heritage matters is made under the Heritage Act rather than the Planning Scheme.
26 Under s 67 of the Heritage Act a person may apply to the Executive Director[9] for a permit to carry out work or activities in relation to a registered place. Absent such a permit building demolition and construction works within a registered place are unlawful pursuant to s 64(1). Sections 68 and 69 of the Heritage Act provide for public notice of applications to be given and for written submissions to be lodged in respect of an application. Section 71 requires that local authorities must be notified.[10]
27 Section 73(1) of the Heritage Act provides in part:
(1) In determining an application for a permit, the Executive Director must consider -
(a) the extent to which the application, if approved, would affect the cultural heritage significance of the registered place or registered object; and
...
(c) any submissions made under section 69...
1"> 28 Section 73(1A) further provides:
(1A) In determining an application for a permit, the Executive Director may consider -
(a) the extent to which the application, if approved, would affect the cultural heritage significance of any adjacent or neighbouring property that is -
(i) subject to a heritage requirement or control in the relevant planning scheme; or
(ii) included in the Heritage Register; and
(b) any other relevant matter.
29 'Cultural heritage significance' is defined by s 3 of the Heritage Act to mean:
cultural heritage significance means aesthetic, archaeological, architectural, cultural, historical, scientific or social significance;
30 The National Trust contends that under this regime the Executive Director may have regard to precinct considerations but there is no requirement that he do so.
31 The first respondent has indicated that it will abide by the order of the Court.
(a) The plain meaning of the exemption covers both the bases of permit requirement under the Heritage Overlay;
(b) The purpose of the exemption is to avoid duplication of permit requirements under both the Heritage Act and the Planning Scheme. This purpose supports the plain meaning of the provision;
(c) The history of the drafting of the Planning Scheme exemption also supports the conclusion that the exemption was intended to be given full force and effect;
(d) There is no hiatus in the provisions of the Heritage Act which sensibly supports the contrary conclusion.
33 I accept the respondents' submission as to the plain meaning of the exemption. The subject matter of the exemption is a particular class of permit, namely one 'under this overlay' to develop a heritage place which is included on the Victorian Heritage Register.
34 The relevant class is not restricted to permits under this overlay relating to heritage places which are included on the Victorian Heritage Register but not including those that are also included in the Schedule to the overlay as forming part of the precinct.
35 The permit with which this case is concerned is one which falls within the meaning of the specific words used.
36 It is common ground that the words 'to develop a heritage place' include development of part of a heritage place.
A term used in this planning scheme has its ordinary meaning unless that term is defined:
(a) the construction or exterior alteration or exterior decoration of a building; and
(b) the demolition or removal of a building or works; and
(c) the construction or carrying out of works; and
(d) the subdivision or consolidation of land, including buildings or airspace; and
(e) the placing or relocation of a building or works on land; and
(f) the construction or putting up for display of signs or hoardings;[11]
39 Section 39 of the Interpretation of Legislation Act 1984 provides:
Where a word or phrase is given a particular meaning in an Act or subordinate instrument, other parts of speech and grammatical forms of that word or phrase have, unless the contrary intention appears, corresponding meanings.
40 Accordingly, the word 'develop' should be construed in accordance with the definition of 'development' found in the P&E Act. It includes works partially affecting land.
41 If it be accepted that the exemption applies to permits to develop part of a heritage place, then it follows that the critical question is simply whether that part of the heritage place which it is sought to develop is included on the Victorian Heritage Register.
42 The purpose of the exemption is as the National Trust's counsel put it:
to avoid conflicting decisions by the planning authority and the heritage authority by ceding primacy to the heritage authority, which can fairly be seen as the body with greater expertise in the heritage area.
43 A number of provisions of The Heritage Act, the P & E Act and the Planning Scheme support this view.
44 The Heritage Act specifically requires that planning schemes must identify the inclusion of places in the Heritage Register.
(1) The Minister administering the Planning and Environment Act 1987 must prepare and approve an amendment to any planning scheme applying to a place which is included in the Heritage Register to identify the inclusion of that place in the Heritage Register.[12]
45 It further envisages that the Planning Scheme will address issues of inconsistency or duplication in respect of the consequences of registration.
(3) An amendment under subsection (1) may also make any consequential amendments to the planning scheme that are necessary to remove or modify any provisions which are inconsistent with or duplicate the provisions of this Act.[13]
46 It may also be noted that s 4(2)(f) of the P&E Act itself provides that one of the objectives of the planning framework established by the P&E Act is:
(f) to provide for a single authority to issue permits for land use or development and related matters, and to co-ordinate the issue of permits with related approvals;[14]
47 In turn, clause 15.11-2 of the State Planning Policy Framework provisions of the Planning Scheme provides in part:
Planning and responsible authorities should take account of the findings and recommendations of the Victorian Heritage Council and the provisions of the Heritage Act 1995.
48 The construction for which the plaintiff contends would duplicate the provisions of the Heritage Act in that it would require the heritage consequences of the proposed development to be considered twice thereby potentially giving rise to inconsistent outcomes.
49 I do not accept that the permit procedure under the Heritage Act is not concerned with the external consequences of development of a heritage place. In most cases of registered buildings within the central city at least, alteration to the external appearance of a registered building will bear upon its cultural significance. That alteration will commonly be perceived at least in part from the surrounding area. Thus in, the present case, the appearance of the Windsor Hotel from the State Parliament precinct or from Bourke Street, must sensibly comprise a component of its aesthetic, architectural and cultural significance.
50 Likewise, it is not true as the National Trust submits that the precinct control is intended to protect the heritage value of the 'surroundings' of the Windsor Hotel. The precinct control is intended to protect the heritage significance of an area which includes the Windsor Hotel. If the Windsor Hotel were not itself listed under the Heritage Overlay, a permit would still be required for work on the Windsor Hotel site under the precinct control whether or not those works were visible from the surrounding area or had any perceptible impact on that area.
51 When a responsible authority considers a permit application under the Heritage Overlay it must consider 'as appropriate' among other things:
The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.[15]
52 This consideration is plainly not limited to effects on the surroundings of the Windsor Hotel.
53 There is thus substantial coincidence between the considerations relevant by reason of the site specific and the precinct designations under the Heritage Overlay, although it must be agreed that they are not necessarily co-extensive.
54 It follows that the purpose underlying the exemption favours its plain meaning, which is one which avoids the potential for duplication and inconsistency between the Heritage Act process and the planning scheme process. Section 35(a) of the Interpretation of Legislation Act 1984 favours the Tribunal's interpretation of the Planning Scheme which give effect to this purpose.
55 The Minister also points to the history of the relevant provision as supporting the view that it should be given its plain meaning:
The predecessor to the current exemption, also contained in clause 43.01-2, provided that no permit was required to develop a heritage place included on the Victorian Heritage Register if either:
(a) a permit for the development had been granted under the Heritage Act 1995; or
(b) the development was exempt under s 66 of the Heritage Act 1995.
The predecessor exemption took effect pursuant to Amendment VC40. Amendment VC40 was gazetted on 30 August 2006. The Explanatory Report to Amendment VC40 refers to the Amendment as -
Heritage Overlay: amending Clause 43.01 to:
...
refine the link to the Victorian Heritage Register to remove any duplication of consents.
...
In its ordinary meaning, the form of clause 43.01-2 would exempt a development relating to a heritage place on the Victorian Heritage Register from the need to obtain a permit under the heritage overlay provided that a permit for the development had been granted under the Heritage Act, or the development was exempt under section 66 of that Act.[16]
56 The Minister points out that a series of decisions both of this Court and of VCAT gave the previous provision its plain meaning.[17]
57 In turn, the explanatory report accompanying the amendment of the relevant provision to its current format simply stated an intention to:
clarify the requirements for places on the Victorian Heritage Register.[18]
58 A series of decisions of VCAT since the amendment of the exemption to its current form have also given the exemption its plain meaning.[19]
59 This history does not encourage the view that the exemption in its current form was intended to be reduced in ambit as the plaintiff contends.
60 The National Trust emphasised in argument that it was possible that the Executive Director would not consider impact upon the heritage significance of the precinct when considering the necessary permit application under the Heritage Act.
61 There is a degree of artificiality about this submission:
(a) As I have said, the impact of proposed works upon the external appearance of heritage buildings must sensibly be a matter considered under s 73(1) of the Heritage Act in cases such as the present.
(b) The Executive Director has express power under s 73(1A)(a) to consider the effects of proposed works upon the cultural heritage significance of adjacent or neighbouring property that is subject to a heritage control under the Planning Scheme. The concept of 'neighbouring' is a loose one, but the question whether neighbouring property extends to the 'neighbourhood' or 'precinct' is one which it is open to the Executive Director to further resolve on the basis that impacts on the precinct are 'relevant' pursuant to s 71(1A)(b).
(c) That power falls to be exercised pursuant to an Act which has as its first main purpose:
(a) to provide for the protection and conservation of places and objects of cultural heritage significance and the registration of such places and objects ...[20]
The protection and conservation purpose is not restricted to the protection and conservation of registered places. Registration is simply one mechanism facilitating such protection and conservation. That this is so is made clear by the registration procedures under the Heritage Act which expressly provide for the referral of places for inclusion in, and protection under, the Planning Scheme which are not of sufficient cultural significance to warrant inclusion on the Victorian Heritage Register.[21] The Heritage Act is thus intended to facilitate the conservation of places appropriately protected under the Planning Scheme.
(d) Notice must be given of permit applications to the responsible authority having the duty to give effect to the Planning Scheme including precinct controls and, if the responsible authority is not the municipal council, to the relevant municipal council.[22]
(e) Public notice must be given of permit applications under s 69 as it was in the present case provoking a submission by the plaintiff.
62 It follows that the impact of proposed works upon the cultural significance of a precinct which includes a registered place may be considered by the Executive Director:
(a) because it is a component of the cultural significance of the registered place itself;
(b) because the Executive Director determines to take account of this consideration pursuant to s 71A;
(c) because it is the subject of submission by the responsible authority or municipal council concerned with the ongoing planning of the precinct; or
(d) because it is the subject of submission under s 69 by other parties having an interest in the heritage significance of the precinct.
63 In these circumstances there is no 'hiatus' between the consideration process under the Heritage Act and the Planning Scheme Heritage Overlay which would support the view that the intention of the Planning Scheme was other than its plain meaning. Whilst I accept that it is theoretically possible that an external heritage impact relevant under the Planning Scheme might not be raised for consideration under the Heritage Act process, there are a series of mechanisms plainly intended to facilitate consideration of precisely such matters.
64 There is no warrant in my view for speculating that the Executive Director may exercise his power under s 71A other than in accordance with the main purpose of the Heritage Act. Nor can it sensibly be said that it is probable that impacts of the type complained of would not commonly be the subject matter of submission either by the responsible authority, the municipality or the public (including special interest groups such as the plaintiff). The theoretical gap in the system which the plaintiff postulates does not warrant a departure from the plain meaning of the exemption. To the contrary, a review of the detailed provisions of the Heritage Act reinforces the view that the Planning Scheme exemption was intended to avoid duplication of Heritage Act processes.
65 I should lastly say something concerning the procedure adopted in this proceeding. The Victorian Civil and Administrative Tribunal Act 1998 provides for appeal on a question of law from an order of the Tribunal to this Court.[24] Section 3 of the Act specifically defines 'order of the Tribunal' to include 'interim order of the Tribunal'. The preliminary determination made by the Tribunal in the present case resulted in an interim order.
66 It is Parliament's intention that challenges to the legal validity of such orders be made in accordance with the Victorian Civil and Administrative Tribunal Act 1998. That Act provides for a leave to appeal procedure. That procedure is in turn accommodated by specific rules administered by this Court within a specialist list. There are obvious reasons of practicality favouring the implementation of the specific statutory scheme devised for proceedings of this type.
67 In the present case the plaintiff obtained an order nisi for review under the Administrative Law 1978. This course was justified as one adopted in order to avoid any argument that an appeal lies only against an order which finally disposes of an application for review. The discrepancy between the Tribunal's preliminary decision and the order made by it is also said to have encouraged attack on the decision rather than the order. Whatever may have been the situation under earlier legislation it is plain that the current Act provides for the review of interim orders made by VCAT. In the ordinary course parties should follow the statutory scheme.
68 For the reasons I have set out above the order to review should be discharged. The grounds complained of are not made out. It is for the Tribunal to correct the slip in its declaration and proceed with the hearing of the matter.
[1] Clause 37.04-4 Melbourne Planning Scheme.
[2] Sweetvale Pty Ltd v VCAT [2003] VSCA 83, [11].
[3] Clause 43.01-1 Melbourne Planning Scheme.
[4] Clause 43.01-2Melbourne Planning Scheme.
[5] Victorian Heritage Register Number H0764.
[6] National Trust of Australia (Victoria) v Minister for Planning [2010] VCAT 671.
[8] Order of Associate Justice Evans dated 25 June 2010.
[9] Being the Executive Director employed under the Heritage Act Division 2 of Part 2.
[10] Being the responsible authority as defined in the P&E Act and the relevant municipal council if they are not the same.
[12] Section 48(1) Heritage Act.
[14] Section 4(2)(f) P&E Act.
[15] Clause 43.01-4 Melbourne Planning Scheme.
[16] Outline of Submissions on behalf of the Minister for Planning, 5 August 2010, [10]-[12].
In the Court of Appeal in Sweetvale Pty Ltd v VCAT [2003] VSCA 83, [13], the Heritage Overlay exemption was considered not to be relevant to the proceeding.
[19] Beaver v Indigo Shire Council [2009] VCAT 326 (Unreported, Keddie M, 2 March 2009), [4], [20]; Hoffman Brickworks Pty Ltd v Moreland CC [2010] VCAT 15 (Unreported, Bennett M, 8 January 2010), [12]; Melbourne Anglican Trust Corporation Williamstown v Hobsons Bay CC [2009] VCAT 667 (Unreported, Naylor PM, Read M) 20 April 2009), [6.iii]-[6.iv] and [12]; Oakleigh Development Pty Ltd v Monash City Council [2009] VCAT 1781 (Unreported, Baird SM, Davies M, 28 August 2009), [3]; and Vasey RSL Care Ltd v Bayside City Council [2008] VCAT 2390 (Unreported, Wilson M28 November 2008), [32].
[20] Section 1 Heritage Act.
[21] See sections 32 and 42 Heritage Act.
[23] See section 73(1)(c) above
National Trust of Victoria
VCAT & Ors [2010] VSC 430