Ratliff v Stonnington CC [2006] VCAT 1218

A. Application P387/2006 is summarily dismissed pursuant to Section 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1988 on the basis that it is misconceived because no planning permit is required under the Stonnington Planning Scheme to construct the proposed driveway.

B.

Costs reserved. If the Applicant seeks to apply for costs, then a formal application and accompanying written submissions must be made within 21 days of the date of this order. If the party from whom costs have been sought intends to contest any such application, within 14 days of the date of the application for costs being filed and served, it must file with the Tribunal and serve on the Applicant, written submissions in this regard. Any party may request that the application for costs be the subject of a Hearing and the Tribunal may determine to do so. In the absence of a request for a further hearing, the Tribunal may determine the matter on the papers (that is, by way of the written submissions).

Mr Jesse Burgess and Mr Frank Berra, officers of Stonnington City Council

1 This case concerns a proposal to construct a crushed rock driveway that would serve an existing dwelling on the subject land. The Council refused to grant a permit and Michael and Kate Ratliff ("the Applicants") have sought a review of that decision.

2 The review site has an area of 491sq.m and is within a Residential 1 zone. There are no overlay controls affecting the subject land and nor does it abut a road in a Road Zone.

3 At the commencement of the hearing I expressed the preliminary view that I did not believe a planning permit is required for the driveway. It was agreed that this is a question of law. The parties were not however in a position to make detailed submissions on the question at the hearing.

4 I therefore gave directions to the parties at the hearing for the lodgement of written submissions in response to the question (if they wished). The parties agreed that the question could be determined on the papers.

5 As the question of law could not be determined at the time of the hearing, I proceeded to hear the merits of this case. I did so on the understanding that if, following a detailed consideration of the question of law a permit was found to be unnecessary, I would not need to provide any findings in relation to this matter.

6 During the course of the hearing, the Applicants foreshadowed an application for costs against the Council. I indicated that I would reserve costs and set out a process for any application to be made. My order now describes that process. I also draw the parties' attention to the provisions of s.109 of the Victorian Civil and Administrative Tribunal Act 1998 that deals with applications for costs.

7 Subsequent to the hearing, the Council circulated a submission addressing the question of law in accordance with my earlier directions. The Applicants advised that they did not wish to make any such submission.

8 Although the parties were content for me to determine the question of law, I decided to refer it to my learned colleague, Russell Byard, Acting Deputy President, who is a legal practitioner. Paragraphs 9 to 37 contain the unedited opinion of Acting Deputy President Byard on the relevant question of law.

9 I am asked to give my opinion on a question of law that has arisen in relation to a planning review proceeding being heard by a member who is a planner but not a legal practitioner. Although the parties consent to the planner member determining the question of law she has considered it prudent to refer it for the opinion of a member who is a legal practitioner (such as myself). The question arises in relation to a proposal for a site in a Residential 1 zone. It has an area of approximately 491 square metres. There is an existing house on the land. It is proposed to construct a crushed rock driveway on the land.

10 The question of law posed has been formulated by the member hearing the case. It has been submitted to the parties with an invitation to make submissions as to its appropriateness. I understand that no objection to the formulation of the question has been received.

11 The question is:

"Does clause 32.01-3 of the Stonnington Planning Scheme give rise to a requirement for a planning permit for the construction of a driveway associated with an existing dwelling?"

12 Directions were given authorising the parties to make written submissions as to the question following the hearing. The responsible authority responded to this by providing a copy of a letter of advice of their solicitors written several months earlier in relation to the question. The applicants for review acknowledged receipt a copy of that document but indicated that they did not wish to make a submission in relation to the question of law.

13 The zone control provisions in relation to a Residential 1 zone appear at cl.32.01 of the planning scheme. Clause 32.01-1 contains a Table of Uses. This table specifies uses of land for which no planning permission is required (in section 1 of the table), uses that do require planning permission (in section 2 thereof) and uses that are prohibited (section 3 of the table).

14 "Dwelling" appears in section 1 of the Table of Uses. Thus dwelling is a land use for which planning permission is not required. That is the situation in relation to the use of land for a dwelling. The question of whether planning permission is needed for development requires further consideration.

15 Development includes the construction of buildings (including parts of buildings) and the construction or carrying out of works. The construction of a crushed rock driveway is "works".

16 A building constructed as and for a house is a dwelling. A house, considered as a building, is a development (rather than a land use). In a careful consideration of the current legal question the distinction between dwelling as a land use and a building, which is a development, has to be kept in mind. This is a distinction that was pointed out in the decision in Coleman v. Manningham CC [2005] VCAT 618. Unfortunately, this distinction has not always been kept clear in the drafting of the planning scheme. It is unfortunate because this defect that creates ambiguity and leads to understandable confusion.

17 Clause 32.01-6 of the planning scheme contains a provision under a sub-heading that reads "Buildings and works associated with a Section 2 use". It is to be remembered that dwelling as a land use in Section 1, not Section 2 of the relevant Table of Uses. However, the provision under that sub-heading reads:

"A permit is required to construct a building or construct or carry out works for a use in Section 2 of Clause 32.01-1."

18 Because there is that specific provision saying that a permit is needed for buildings or works for a Section 2 use, the implication is that no permit is required for the construction or carrying out of buildings or works for a Section 1 use. This is in accordance with the legal maxim of interpretation known to lawyers as expressio unius personae vel rei, est exclusio alterius which means that the express mention of one person or thing is the exclusion of another.

19 This proposition is further supported by the third paragraph in clause 61.05 of the planning scheme. It reads:

"If this scheme allows a particular use of land, it may be developed for that use provided all requirements of the scheme are met."

20 Dwelling is an as of right use. As an ancillary and incidental aspect, no planning permit would be required for the development works constituted by the proposed crushed rock driveway. It would take a specific requirement in the planning scheme for a permit to reverse that situation.

21 Does clause 32.01-3, mentioned in the formulation of the question of law under consideration, create such a specific requirement?

22 The clause has a heading that reads "Construction and extension of one dwelling on a lot". It provides that (as currently relevant) that:

"A permit is required to construct or extend one dwelling on:

...

•

a lot of between 300 square metres and 500 square metres if specified in the schedule to this zone."

23 This requirement does apply as it is specified in the schedule in this instance. Thus, with the area of the lot being between 300 and 500 square metres, a permit is required "to construct or extend one dwelling on it". Is this proposal then, for the construction or carrying out of works something that amounts to the construction or extension of "one dwelling".

24 Clearly in ordinary English usage it is not. In ordinary English this provision is talking about development, not the use of land for the purpose of a dwelling; but it is for development constituted by the construction or extension of "one dwelling". In ordinary English that would mean one house or one dwelling house or an extension thereto. It is talking about a building rather than ancillary works. It can be noted that the expression speaks of "one dwelling" and avoids the phraseology so common in the planning scheme, and as seen in clause 32.01-6, where reference is made to development being "to construct a building or construct or carry out works". In clause 32.01-3 the word "works" does not appear.

25 Neither, for that matter, does the word development; or even "building".

26 I think that the part of clause 32.01-3 that I have referred to so far is to be interpreted in accordance with ordinary English expression and the ordinary meaning of "dwelling" in this context. I do not think that the planning scheme contains a special or extended meaning for that word, or that phrase "one dwelling" would qualify or define it in this context.

27 In my opinion the better view is that the permit requirement imposed by clause 32.01-3 does require a permit to construct or extend "one dwelling", but "one dwelling" in this context does not mean a crushed rock driveway. In my opinion, no permit is required under this provision for such a driveway.

28 This is contrary to the conclusion argued for the responsible authority, supported by the letter of opinion provided to it by its solicitors. Before discussing that contrary view further, I should mention the second paragraph that appears in clause 32.01-3.

29 This provision reads:

"The construction or extension of a dwelling includes a front fence within 3 metres of a street if the fence exceeds the maximum height specified in Clause 54.06-2."

30 The maximum height for such a fence specified in that clause, so far as this case is concerned, would be 1.5 metres.

31 This second paragraph in clause 32.01-3 contains a particular and special extension to the concept of construction or extension of a dwelling for the purposes of clause 32.01-3. This special extension relates to, and includes within the concept of construction or extension of a dwelling, certain front fences but not others. It does not include any front fence that is not within 3 metres of the street and it does not include a fence with a height of 1.5 metres or less. Thus it does not include all fences or all front fences, and certainly does not include driveways whether of crushed rock or other materials. The abovementioned maxim of expressio unius (is commonly called that for short) can be applied again here.

32 How then do the solicitors of the responsible authority come to the contrary view that a permit is required for the crushed rock driveway? I believe that they have been guilty of a "slide in terms" whereby they have confused the concept of dwelling as a land use with the concept of dwelling as a development. They have referred to the definition of "Dwelling" in clause 74 of the planning scheme forgetting that clause 74 contained "LAND USE TERMS" and not "GENERAL TERMS" defined and set out in clause 72. Clause 72 does not contain a definition for "dwelling" or "one dwelling". That word or that expression, when not used as a land use term, and in the absence of a definition in clause 72, must receive its ordinary English meaning.

33 The land use term for "Dwelling" (as a land use) is defined as:

"A building used as self-contained residence which must include:

(a)

a kitchen sink;

(b)

food preparation facility;

(c)

a bath or shower; and

(d)

a closet pan and wash basin.

It includes out-buildings and works normal to a dwelling."

34 The solicitors make reference to the second paragraph in the above quoted land use definition where it refers to including "works normal to a dwelling".

35 The proposed crushed rock driveway would certainly be works and would indeed be works normal to a dwelling. However, this paragraph is part of a land use definition, not a general definition and certainly not definition of dwelling as a development (as opposed to a land use) whereas clause 32.01-3 is certainly referring to "dwelling" meaning a development, and not a land use. The second paragraph is useful in making it clear that outbuildings and works normal to a dwelling are included in the land use concept of dwelling, but they are not useful in relation to the concept of "dwelling" as a development in clause 32.01-3.

36 It appears that the solicitors were not aware of the case of Coleman v. Manningham CC when formulating their advice.

37 For these reasons I consider that the better view is that the answer to the question of law posed is: "no", and that a permit therefore is not required under the clause for the proposed crushed rock driveway.