Victorian Civil and Administrative Tribunal|2011-05-20

Reid v Nillumbik SC (No.3) [2011] VCAT 925 (20 May 2011)

Ian Reid (the application having being originally mane in the name of Ikonomidis Pty Ltd)

Reid v Nillumbik SC (No.3) [2011] VCAT 925

The deemed decision of the responsible authority refusing to grant a permit is set aside and a permit is granted for 18 dwellings in accordance with the endorsed plans provided for in the following conditions which are to be the conditions of the permit.
1. Prior of the commencement of the development hereby permitted amended plans are to be submitted to and approved by the responsible authority. The plans are to be drawn to scale with dimensions and three copies are to be provided. When approved the plans will be endorsed as evidence of their approval and will thereby become the endorsed plans in relation to this permit. The plans must be generally in accordance with the plans marked as exhibit M1 at the hearing of planning application for review in Reid v Nillumbik SC (No.3) but modified to show:

location of water holding tanks and storm water retention facilities to regulate the discharge of drainage from the land; 2. nominate the proposed exposed aggregate material for the driveway;

the existing tree in the road reserve near the southeast corner of the land;

details of Tree Protection Zone to that tree and any existing trees to be retained on the land; 2. depiction of and details of the proposed front fencing including gates and heights, and also in relation fencing in the front setback area dividing the front gardens of the front row of dwellings from each other; 3. details of proposed letterboxes; 4. a schedule of proposed external materials and colourings; 5. details and specifications of proposed outdoor clothes drying facilities for the dwellings in the front row of dwellings such facilities to be located in or under their respective rear carports; 6. a notation in relation to the front gardens of the front row of dwellings to the effect that these areas are not to be used for outdoor clothes drying, the storage of garbage or rubbish bins, or the accommodation of garden sheds;

the provision of an extension of lattice work by 400mm above the 2m high paling fence between the review site and the property at 16 York Street, such lattice to provide only 25% transparency and to be framed and capped in timber or like material;

the location and any proposed visual acoustical screening of that of outdoor heating or cooling devices; 2. a landscape plan depicting: 1. all trees or shrubs to be retained on the site or on the nature strip between the site and the road pavement of Bridge Street, 2. the location and type of proposed ground cover, 3. the location, common name and species, size and plaiting and mature above ground proportions of trees and shrubs to be planted; and

a waste management plan to include indications as to the means of waste collection for the whole site.

The layout of the buildings and works as shown on the endorsed plans must not be altered except with the prior written consent of the Responsible Authority.
Unless with the prior written consent of the Responsible Authority, the landscaping works shown on the endorsed landscape plans must be carried out and completed prior to the occupation of the new dwellings, and must thereafter be maintained to the satisfaction of the Responsible Authority.
Prior to the commencement of development works a Tree Protection Zone for the street tree to be retained in the road reserve is to be enclosed with a substantial fence or physical barrier to a minimum height of 1.5m above ground level with signs to the satisfaction of the responsible authority clearly stating "Tree Protection Zone - No entry" with similar Tree Protection Zones, fences and signs to be provided for any trees on site that are to be retained. Such trees are not to be damaged and such Tree Protection Zones are not to be entered or used for storage except to the minimum extent that might be necessary to carry out works depicted on the endorsed plans.
When Tree Protection Zone fences and signs are in place written notice to that effect is to be given to the responsible authority to enable those facilities to be in inspected.
Once constructed and installed tree protection zone fencing and signs are to be maintained in place and in good condition to the satisfaction of the responsible authority until construction work is complete. Whilst such facilities are in place the tree protection zones, tree protection fencing, signs and the trees themselves are not, without the consent of the responsible authority to be used for:

for the storage of materials or equipment, 2. for supporting other things including service wires, nails, screws or other fastening devices, or

entrenching excavation or alterations to ground surface levels or damage or alterations to the trees being so protected.
Vehicular access and egress to and from the site must be by vehicle crossings constructed to the satisfaction of the responsible authority and any existing crossing no longer required is to be removed and the area made good to the satisfaction of the responsible authority with the replacement, where necessary, kerb and channel, soil or grass.
Internal driveways, access lanes and areas set aside for the parking of vehicles must be constructed to the satisfaction of the responsible authority and to levels so that they can be utilised for their intended purposes. They are to be constructed of concrete, asphalt or similar material to the satisfaction of the responsible authority and grated and drained to its satisfaction to allow surface water to be collected and drained off.
The development, including all new paved areas must be drained so as to prevent uncontrolled discharge of storm water from the site.
Storm water collected from roofs except where otherwise approved by the responsible authority, is to be directed to storage tanks so as to be available for reuse and a storm water retention system to the satisfaction of the responsible authority capable of regulating the flow of storm water from the site so as not to exceed the pre development discharge is to be provided and maintain to the satisfaction on the responsible authority.
The discharge of storm water from the site is to be to a point of discharge to the satisfaction of the responsible authority and any works necessary to convey such water to such point of discharge is to be carried out to the satisfaction of the Responsible Authority at no cost to the council in accordance with a design prepared by a qualified civil engineer and plans submitted to and approved by the responsible authority.
Except with the consent of the responsible authority, no plant, services, equipment, cooling units, condensers or satellite dishes are to be located on the roofs of the dwellings.
This permit will expire if any the following circumstances arise:
1. the development is not commenced within two years of the date of this permit, or
2. the development is not completed within four years of the date of this permit.

The Responsible Authority may extend these periods if requested to do so in writing before the permit expires or within three months there after.

The Responsible Authority is directed pursuant to Section 85(1)(b)(ii) of the Planning and Environment Act 1987 to issue a permit in accordance with order A above.

Mr C McKenzie, solicitor, appeared for the applicant company. He presented written and oral submissions and called three expert witnesses namely Ms D Donald, traffic engineer; Mr D Crowder, town planner and Mr R Boyle, landscape architect.

Each gave oral evidence and adopted a written report.

Ms Anita Fitzpatrick, town planner and officer of the Shire of Nillumbik, appeared for the responsible authority. She presented written and oral submissions.

Various objectors appeared in person or were represented as follows:

Ms Colleen Hackett appeared for Beryl Hilse and Manfred Hilse;

Mr M McDonald for Colleen Hackett and Friends of Nillumbik;

Ms Carlota Quinlan for herself and for Eltham Gateway Action Group;

These objectors or their representatives presented written and oral submissions.

Various plans photographs and other photographs were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s 79 of the Planning and Environment Act 1987 for review of the failure of the responsible authority to grant a permit within the prescribed time.

Residential 1 Zone and subject to a Significant Landscape Overlay (Schedule 5) under the Nillumbik Planning Scheme.

Almost rectangular parcel of land with a frontage of 59.42m to the north side of Bridge Street, a depth of 49.86m and an area of 2833m2.

Lot 3 on plan of subdivision No. 344599L being the Land and Certificate of Title Volume 10297 Folio 012 and Lot 1 on Title Plan 125121P being the Land in Certificate of Title 11005 Folio 744.

This is a review of the failure of the responsible authority to grant a permit. However, the planning and building committee of the council, under delegation, determined that it would have refused to grant a permit on the following grounds:

The development is not responsive to the desired character objectives and characteristics sought under the "Eltham Central" neighbourhood character precent, as identified in Clause 22.12 (Neighbourhood Character Policy) of the Nillumbik Planning Scheme.
The proposal does not provide neighbourhood character, Vegetation Retention and Landscaping, Internal and External Amenity and Traffic Impacts.

The development is not responsive to the desired character objectives and characteristics sought under the 'Eltham Central' neighbourhood character precinct, as identified in Clause 22.12 (Neighbourhood Character Policy) of the Nillumbik Planning Scheme.
The proposal does not provide adequate opportunity for sufficient replacement vegetation to maintain and enhance the existing 'Eltham Central' characteristics of the subject site and area, as outlined in Clause 22.12 (Neighbourhood Character Policy) and Clause 42.03 (Significant Landscape Overlay, Schedule 5) of the Nillumbik Planning Scheme.
The proposal is not responsive to the neighbourhood character objectives set out at Clauses 16.02 (Medium Density Housing), 22.01 (Medium Density Housing Policy), 22.12 (Neighbourhood Character Policy), 42.03 (Significant Landscape Overlay - Schedule 5) and 55.01 (Res Code - Neighbourhood Character) of the Nillumbik Planning Scheme.
The proposed development does not satisfy various objectives and standards of Clause 55. In particular it:

does not does not provide a development that is respectful of neighbourhood character and fails to meet the objective of Clause 55.02; 2. does not meet the landscaping objectives at Clause 55.03-8;

does not provide a development that provides suitable access as required by the objective and standard of Clause 55.05-1;

does not provide suitable visitor car parking spaces as required by the standard at Clause 55.03-11;

does not provide suitable rear setbacks that are consistent with the preferred neighbourhood character in accordance with Clause 55.04-1;
does not adequately respond to the design detail objectives of Clause 55.06-1;
does not provide an appropriate front fence as required by Clause 55.06-2.

5. The intensity and design of the development, combined with the constraints of the existing infrastructure, does not lend itself to entirely accommodate all car parking (resident and visitor) on-site, which will contribute to traffic congestion and parking issues along Bridge Street.

At the commencment of the hearing application was made on behalf of the applicant to substitute amended plans denoted as "version C" circulated on the cover of a letter 20 Januray 2011. These plans were marked as exhibit M1 and the permit application was amended to subsitute the M1 plans. That amendment was made by consent.

The original permit application was made in the name of Ian Reid but the application for review gives the name of the applicant as Ikonomides Reid. This is an application for review under s 79 of the Planning and Environment Act 1987. Only the permit applicant has the legal right to apply for such a review. It follows that the name of the applicant for review must match that of the name of the permit applicant. This matter was dealt with, in the course of the hearing, by an amendment, made by consent, to substitute the name "Ian Reid" as applicant for review.

This case concerns a proposal for a multi dwelling development on the review site. It is an application under s 79 of the Planning and Environment Act 1987 (PE Act) to review the failure of the responsible authority to grant a permit within the prescribed time. After the prescribed time had expired, the applicant commenced the application for review.
The responsible authority subsequently determined that it would have refused to grant a permit, had it made the decision within time.
The hearing commenced on 18 February 2011. It was part heard at the end of that day and the hearing was completed on 7 March 2011.
In the course of the hearing I heard the submissions and evidence called on behalf of the parties. The parties include the responsible authority and the applicant, but also a number of objectors who participated in the hearing.
After hearing the parties the hearing was suspended for a time. Then I returned to give an oral decision and oral reasons. My decision was to grant the application for review and grant a permit subject to conditions.
I gave quite comprehensive oral reasons for this decision. The parties were at liberty to make notes at the time, and the proceedings were recorded. In the circumstances I do not propose to repeat here what was said then in relation to the planning merits of the proposal.
However, there was an aspect that was raised that I consider warrants some comment. This application for review, and the permit application that gave rise to it, was not the first attempt on behalf of the applicant to obtain planning permission for a proposal of this sort. There was a previous permit application. It gave rise to an earlier review by this Tribunal. I will mention this later in these remarks. The decision of the Tribunal in the earlier case was to refuse to grant a permit. The reasons given specified several specific matters in relation to which the Tribunal is not satisfied.
This new proposal is not identical with the earlier proposal, although it is substantially similar in most respects. This is because the previous Tribunal decision criticised the original proposal but only in relation to certain specified matters. It was not an outright refusal of the whole concept. On the contrary, the general idea was accepted by the Tribunal.
This new case based on the new proposal does contain alterations in its application plans. They were, naturally enough, confined to the matters criticised in the earlier decision. My recollection is that these alterations were described, on behalf of the responsible authority, as "minimal". It was submitted that the current application ought to be refused on the basis of the "repeat appeals" approach, because the two proposals are substantially similar and the alterations are, in the whole scheme of each proposal, quite minor.
That was a mistaken and unjustified submission in the circumstances. It was based on a failure to distinguish between a repeat appeal in the classical sense and a new proposal, generally similar to an earlier proposal refused for specific reasons, but incorporating alterations to satisfy those previously identified concerns. What the submission fails to appreciate is that this is not really a repeat of a proposal that was comprehensively refused or refused "in principle" in the previous case. On the contrary, it was approved in principle. Such proceedings are now referred to as applications for review, but when this doctrine or approach of "repeat appeals" was first developed it was by a predecessor of this Tribunal, namely the Victorian Administrative Appeals Tribunal, and at a time when such proceedings were known as "planning appeals".
I believe that a formulation of this approach arose out of concerns as to "forum shopping." That expression means trying to select a court or tribunal that will would give a favourable decision. In the past there have sometimes been a series of identical or all but identical applications for a proposal that has been previously refused. The motivation for this tactic might be hoping to wear down objectors and/or the responsible authority, or possibly the Tribunal, in the hopes of obtaining a different decision to the one or ones previously obtained. Presumably the hope is that a responsible authority might change its mind, or that a differently constituted Tribunal may come to a different conclusion.
Such tactics are very properly frowned upon. The notion of "repeat appeals" is that the same result can be expected in relation to and identical proposal unless there are changed circumstances justifying a difference result. Such circumstances might include changes to the zoning, the planning scheme policies or surrounding circumstances and land uses. Of course a materially different new proposal would have to be assessed on its own merits. That is what I understand to be the classical notion of repeat appeals. Some previous decisions in relation to repeat appeals were referred to at the hearing of this present case. I do not think it necessary to discuss those cases here, although mention was made of them in the course of the hearing and the reasons given in the course of the hearing.
This present case was not a repeat appeal in what I have called the classical sort. On the contrary, it is a new and different notion of repeat appeal. By "new" I do not mean that it has arisen for the first time in this case, but it is quite a different situation to the classical "repeat appeal".
Sometimes the Tribunal will be confronted with an application that might be considered to be basically sounded suitable to receive planning permission but for one or more defects which the Tribunal is not prepared to accept.
Sometimes such defects might be dealt with by the imposition of permit conditions. However sometimes the alterations to a proposal might be such that imposition of conditions are not a convenient or adequate means of dealing with the situation.
The second approach, sometimes adopted by the Tribunal, is to issue an interim determination dealing with the case in relation to the issues with which the Tribunal is satisfied and indicating its reasons for such satisfaction, but also identifying the issue or issues in relation to which it is not satisfied. It might adjourn the case to give an applicant an opportunity to prepare new plans demonstrating a means of overcoming the outstanding concern. The demands of natural justice might mean that other parties should have an opportunity to make submissions in relation to the new plans, in writing or at a further hearing. Such a further hearing is intended to deal only with the outstanding issue (or issues) in relation to which the new plans have been prepared. Unfortunately some parties try to insist, in these circumstances, upon wanting to re-litigate the other issues that have been determined by the Tribunal. Furthermore, it is not unknown for parties to argue, quite incorrectly, that the Tribunal has now prejudged the outcome of the proceeding and should disqualify itself for bias or perceived bias. Such arguments are quite mistaken in such circumstances. The Tribunal has not really prejudged anything. It may have determined certain issues, after having heard the parties in relation to them, but reserved its decision in relation to a further issue or issues identified in the interim determination. Those issues are not being prejudged. It is still for the Tribunal to determine them, in the light further submissions or whatever might be put forward at the second hearing. It must be remembered that the formation of a tentative view where the Tribunal remains open to persuasion to a contrary view, is not a prejudgment or prejudice.
The third approach to "mending" a generally satisfactory proposal, but which the Tribunal considers requires further correction, is to refuse the application but give a determination with reasons indicating that the proposal is generally acceptable while also specifying the items or issues which, in the opinion of the Tribunal, require reconsideration and reformulation.
That is what has happened in this case. In a previous decision of Reid v Nillumbik SC [1] a member of the Tribunal other than myself considered a proposal for multi dwellings on this review site. The proposal was, in many substantial ways, quite similar to the proposal before me. The member refused to grant a permit, but in her reasons made it clear that the proposal before her was generally acceptable but for several specified concerns.
The permit applicant then made a new permit application through the responsible authority for a similar proposal but with modifications intended to meet or satisfy the concerns expressed by the Tribunal in its reasons for its determination of the previous case.
In the event, I agreed with the decision of the previous Tribunal, both as to the merits of the previous proposal, and as to the defects identified in it. The proposal before me satisfactorily dealt with those perceived problems.
In presenting its case at the hearing before me the responsible authority, quite properly, addressed itself to those issues of concern identified by the Tribunal in the previous case. However, it also made a submission based on a detailed comparison of the current plans with those before the Tribunal in the previous case. Since both were for substantially the same proposal, as previously approved in general terms by the Tribunal, it is hardly surprising that the differences were minor.
The responsible authority submitted that this present case should be dismissed on the "repeat appeals" approach because the changes between the two proposals were said to be very minor or minimal. This submission was mistaken and unjustified. It fails to appreciate the difference between a repeat appeal in what I have called the classical sense, as opposed to a new proposal intended to overcome particular problems identified by the Tribunal in a previous determination.
This is not a case where the Tribunal has previously determined that a proposal of the sort brought forward is unsatisfactory or should be refused in principle. On the contrary, it is a case where a previous decision generally approves the proposal, indeed approves it in principle, but requires certain alterations. The alterations required might nevertheless leave a proposal of similar style, size and proportions (as already approved in principle) where the alterations, though significant enough in themselves, might not appear as very large alterations on the plans. This is certainly not a situation where contemplated new proposal is intended to be quite different from or a significant transformation of the original proposal.
Perhaps the expression "repeat appeal", as it has come to be understood, should not be applied to this type of corrective new proposal. In any event, the basic difference between what I have called a classical repeat appeal, and a correcting repeat appeal is fundamental and should not be overlooked.
This application for review is granted, together with a permit, for the reasons given orally in the course of the hearing.

Environment Act 1987

Reid v Nillumbik SC

At a glance

Court

Decision date

Source

Judgment (41 paragraphs)

Reid v Nillumbik SC (No.3) [2011] VCAT 925 (20 May 2011)

Parties

Legislation Cited (1)