1

Gandel Project Management Pty Ltd sought a permit from Stonnington City Council as Responsible Authority under the Stonnington Planning Scheme for the construction of an additional floor level above the David Jones department store for use as an office together with a waiver of car parking requirements associated with the use. The building in question is situated near the northern boundary of the Metropolis' largest regional shopping centre. On 4 November 2002 Council issued a Notice of Determination to Grant a Permit. Mr Mark Ross of 9 Rangeview Avenue, East Malvern, a residence located some distance to the north of the shopping centre boundary, filed proceeding No. P3010/2002 seeking a review of Council's determination to grant the permit. That proceeding was referred for mediation before Mr K. Struan Gilfillan, a Tribunal Member. The mediation occurred on the 24th of February 2003 and the parties, Mr Ross, the permit applicant and the Council agreed upon amended conditions for the permit. One of those amended conditions, No. 3 read as follows:

A landscape plan shall be prepared by a qualified landscape architect with the intent of providing an effective screening of the proposed development and include for the planting of up to 20 advanced growth Queensland Box Trees (Lophostenon Confertus), 5m high at planting, or similar evergreen tree. The plan shall be to the satisfaction of the Responsible Authority and include consultation with Mark Ross.

Within six months of the date of this order, the applicant submit the above landscape plan for the north side verge of the access road from Chadstone Road parallel to Rangeview Avenue, from Chadstone Road to the east side of No. 20 Rangeview Avenue.

On-going maintenance of the landscaping shall be to the satisfaction of the Responsible Authority.

2

Council issued the planning permit with revised conditions on 24 March 2003. The development has now been erected and completed. Gandel submitted a landscape plan in accordance with Condition 3 to Council and Mr Ross on 9 September 2003. Mr Ross sent an e-mail to Council stating that the landscaping proposed in the plan was 'insufficient for effective screening of the new development'. He called for additional trees to be planted. On 17 February 2004 Gandel submitted a report and concept plans prepared by landscape architect, Carol Frank-Mas. Council received a memorandum from its arborist on 5 March 2004 generally supportive of the proposal. Council endorsed the landscape plan to form part of the permit on 24 March 2004.

3

Mr Ross wrote to the Registrar of this Tribunal by letter dated 3 May 2004, received at the Tribunal on 10 May 2004. He said:

It is my view that the landscaping proposed on the attached landscape plan drawing does not provide 'effective screening of the development' as per the intent of the condition. I have previously advised both the applicant and the City of Stonnington of this view and offered a position that I would agree to which was referred to in my e-mail to Dezarn of City of Stonnington of 23 February, 2004.

As per Section 149b [sic] of the Planning and Environment Act 1987, I hereby apply to the Tribunal to make a declaration concerning that matter.

4

The Registrar accepted this as an application under Section 149B of the Planning and Environment Act 1987 for a declaration in accordance with Mr Ross' request.

5

Rangeview Avenue runs along the northern boundary of the Chadstone Shopping Centre at its north-eastern corner. Rangeview Avenue runs east-west from Chadstone Road which forms the eastern boundary of the centre. The even numbered addresses in Rangeview Avenue abut the centre at their rear boundaries. The odd numbers are on the northern side of Rangeview Avenue. The screening which the condition proposed was to be along the northern boundary of the existing main entry/exit road for the centre, running east from the western boundary of Chadstone Road. Immediately to the north of that exit road's footpath there is a 1.4m tall retaining wall. Travelling further north there is a 2.5m landscaping buffer zone which rises a further metre to a metre and a half before reaching the base of an acoustic fence erected at the rear of the even numbered addresses in Rangeview Avenue. The David Jones' building is set to the south behind Nos. 16 to 20 Rangeview Avenue. The additional floor has been added and the development is now complete. According to a report from landscape architect, Ms Carol Frank-Mas, at the beginning of this year the buffer zone included 'an attractive healthy dense double row of Silver Trata (Pittosporum Eugnoides Vairegatem)'. She said these would grow to approximately 5m in their mature height. Her proposal was the introduction of 13 Queensland Box/Tristamia (Lefostemom Conferta) 'at 12m centres'. She said that each new tree would require the removal of one existing Tarata. The Silver Taratas were at the beginning of this year, about 3m high.

6

Mr Ross said that the plan proposed by Gandel and accepted and endorsed by Council did not provide what was required by permit Condition 3, namely 'effective screening'. He said that according to the 'Compact Oxford Dictionary' the primary meaning of the adjective 'effective' was 'producing a desired or intended result'. He said that the word 'screening' a verb, meant 'conceal, protect or shelter with a screen'. According to Mr Ross:

The trees currently installed appear dead with little or no foliage, are spaced at 12m centres, and are not presently having any screening effect. [He tabled a number of photographs.] Their canopies measure approximately 2.5m in diameter, leaving a distance of nearly 10m between each tree.

7

Council was represented by Ms Rachael O'Neill, its Planning Appeals Co-ordinator. She said that Council's 'decision to endorse the landscape plan was correct and is consistent with the requirements of Condition 3'. She noted that Council's Arborists had concurred with Gandel's proposal. She said that whilst the condition allowed up to 20 Queensland Box Trees to be planted, it did not require that number to be planted, merely a number not exceeding 20. She said that the required consultation did occur with Mr Ross albeit that Mr Ross' critical views were not accepted. She said that the screening was effective

It is considered that the proposed landscaping (now planted - 13 Queensland Boxes) combined with mature existing planting provides an effective screening of the building, which was sited approximately 80m from the rear boundary of the properties fronting Rangeview Avenue'.

8

Gandel, the permit holder, was represented by Ms Opperman of Urbis JHD Planning Consultants. She submitted:

On the basis of the site constraints and opportunities described in the landscape report it is submitted that the landscape proposal is highly responsive to the site context and produces sufficient new trees to create a robust vegetation screen in several years time. The design was considered to strike an appropriate balance the protection of short and long range views of the development allowing for new taller species to be introduced, whilst retaining much of the existing dense screening that is needed to protect short range views.

9

She said that in so far as Mr Ross had called for additional Queensland Box trees in the back row of the landscape beds, this would not be

Respectful of the existing healthy vegetation. Indeed removal of healthy and attractive 3m high Taratas which will continue to grow in height and density is considered to be a backward step in terms of providing abutting neighbours with an appropriately dense buffer screen.

10

Section 149B of the Planning and environment Act 1987 states as follows:

(1) A person may apply to the Tribunal for a declaration concerning -

(a) any matter which may be the subject of an application to the Tribunal under this Act; or

(b) anything done by a responsible authority under this Act.

(2) On an application under sub-section (1), the Tribunal may make any declaration it thinks appropriate in the circumstances.

(3) The Tribunal's power under this section is exercisable only by a presidential member of the Tribunal.

11

It is important to contrast the Tribunal's declaratory power under this section with its merits review power in a typical permit review proceeding. There, it 'stands in the shoes' of responsible authorities in typical permit review applications. In the words of the Federal Court in such a proceeding the duty of the Tribunal is to reach the 'correct or preferable decision' (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589).

12

Under Section 149B the Tribunal's duty is to declare the existing legal position. There is nothing in the section to suggest that the ordinary equitable principles surrounding the equitable remedy of declaration should not be observed. More pertinently, Section 149B creates a remedy along the lines of judicial review, not merits review. The question in this context is not whether the Tribunal 'standing in the shoes' of the Responsible Authority would itself have approved and endorsed an allegedly deficient landscaping plan, but whether Council as the Responsible Authority, the body to whom the decision about the landscaping has been confided by the condition, has made its decision according to law, that is, has it considered all of the relevant matters, avoided mistakes of law, avoided taking into account extraneous matters and so forth. Re Minister of Immigration and Multicultural Affairs Ex parte S20/2002 [2003] HCA 30; (2003) 198 ALR 59, 61-2 per Gleeson CJ, Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353, 360 per Dixon J (as he then was).

13

I raised the distinction between these declaratory proceedings and an ordinary merits view such as a typical proceeding in the Planning and Environment List is, at the outset of the proceeding. Regrettably none of the parties was legally represented and the distinction seems to have been simply ignored by the parties in their submissions. In Re Minister for Immigration and Multicultural Affairs Ex parte S20/2002 the High Court of Australia appeared to accept that the decision of an administrative decision maker could be effectively attacked if found to be illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds. As it was, the majority of the Court declined to make a finding against the Refugee Review Tribunal whose decision was under attack in accordance with that principle. As Gleeson CJ observed:

To describe as irrational a conclusion that a decision-maker is not satisfied of a matter of fact, or state of affairs, because the decision-maker does not believe the person seeking to create the state of satisfaction, or to describe the process of reasoning leading to such a conclusion as illogical, on judicial review of an administrative decision, might mean no more than that, on the material before the decision-maker, the Court would have reached the required state of satisfaction. Ordinarily, however, it will be necessary to go further ... If, in a particular context, it is material to consider whether there has been an error of law, then it will not suffice to establish some faulty inference of fact. On the other hand, where there is a duty to act judicially, a power must be exercised 'according to law and not to humour', and irrationality ... may involve non-compliance with the duty.

[2003] HCA 30; (2003) 198 ALR 59, 62

14

In the circumstances I believe I should treat Mr Ross' attack upon Council's decision as being based upon the form of attack rejected on the facts by the majority of the High Court in the S20 case.

15

Viewed in that light there seems to be much to be said for Mr Ross' argument. Axiomatically any legal dispute or the characterisation of any legal matter must be viewed in light of the entire circumstances. The circumstances here were that the form of permit condition which is the basis for the present proceeding emerged from a mediation. The parties to the mediation were Mr Ross, the proponent Gandel and Council as Responsible Authority. Whilst Mr Ross had a form of written authority from other residents in Rangeview Avenue, including residents of even numbered properties, whose backyards immediately abutted the contentious vegetation buffer zone, the only party to the proceeding was Mr Ross himself. His house is one of the odd numbers and on the side of Rangeview Avenue further from the development site. No parties objected to my hearing what transpired at the mediation. Mr Ross said that he had had a number of preliminary discussions and was already entertaining the possibility that additional screening may provide the solution to his dispute with Gandel. He said the mediator made a similar suggestion. The condition was framed after Gandel's representative took telephone advice from Gandel's landscape architect.

16

The mediation seemed therefore to reach a consensus that a revised 'screening' could provide a 'fix' to the dispute. The screening was to be 'effective'. I accept Mr Ross' submission that in the planning context 'screen' would generally mean conceal or substantially conceal. A screening arrangement which did not achieve that result could scarcely be regarded as effective. On the other hand any form of screening falling short of a total shroud would create a concealment of a particular object or development only within a relatively limited number of degrees out of the entire 360o. The 'screening' here is not intended to screen the new development from any areas within Chadstone Shopping Centre itself, rather the screening is to be to the advantage of the residents of Rangeview Avenue and Mr Ross in particular.

17

The landscape architect who proposed the present arrangements, Ms Carol Frank-Mas, said that the Queensland Box trees which had been added to the vegetation buffer zone would not be visible at all from Mr Ross' side of Rangeview Avenue. She said that as planted the trees were suffering transplant shock and had lost their leaves. They would, she said, resume healthy growth next Spring, that is, Spring 2005. Nevertheless, these Queensland Box trees were to be sited 12m apart. At maturity the diameter of these trees' canopies will be 6 to 8m according to her calculation. If her more optimistic projection of the size of the canopy is correct, then there will be four unscreened metres between each tree. If her more conservative projection of the size of the canopies is correct, then there will be six unscreened metres at the high level between each tree canopy, that is, 50% of the area to be screened will be open. This is scarcely 'effective' screening. There may be much to be said for the view that the arrangements adopted could not rationally be regarded as 'effective' screening. Ms Carol Frank-Mas said that to install additional Queensland Box trees as required by Mr Ross would not only destroy existing healthy low level screening but would provide trees that at the low levels would provide little cover at all, to the disadvantage of the even numbers in Rangeview Avenue who are substantially protected by the existing vegetation screening.

18

It is difficult to credit that there is no screening tree available which would provide effective screening both at the low and the high levels. I heard no evidence however that such a tree existed. The purport of Ms Frank-Mas' evidence was that what was being done now was the best that could be done. If the parties in mediation assumed that there was a 'fix' which would provide effective screening for Mr Ross they were wrong.

19

I find this unfolding of these events disturbing. Events such as this can prejudice the integrity of the planning process. The processes of mediation are so important in all areas of the law including planning, whether in their formal manifestations as here or by simply on-site meeting convened by council planning officers would be subverted if it appeared that these gatherings propounded apparent 'fixes' to problems which when once the development in question has been completed, were proved to be illusory because the alleged 'fix' was no fix at all. Nevertheless, I believe I should put these wider concerns aside and consider what is appropriate in the present circumstances.

20

Here the permit has issued and the building works have been completed. Were I to make the declaration sought, the effect would be to declare that there had been a failure to comply with the conditions of the permit. On its face this might provide grounds for an application to cancel the permit under Section 87 of the Planning and Environment Act 1987 however by virtue of Section 88 of the Act, such an application could only be made where the permit 'relates to the construction of buildings ... at any time before those operations have been completed'. This would appear to be a bar to cancelling the permit. The effect of the landscape architect's evidence before me now, is that the present situation cannot be improved. The addition of further Queensland Box trees might improve the screening for Mr Ross but it would disimprove the screening for the closer residents in the even numbered houses. That screening would therefore not be effective but for a different reason.

21

In my view it is appropriate that I refrain from expressing a concluded view as to whether Council has fallen into some form of error of law which would justify my making the declaration sought by Mr Ross - because there are discretionary reasons why such a declaration ought not be made assuming the other requirements for such a declaration have been made out.

22

In Thorre v Doug Wade Consultants Pty Ltd [1985] VicRp 48; [1985] VR 433 O'Bryan J and the Full Court, (Kaye, McGarvie and Marks JJ) considered an application under the planning legislation as it stood before the enactment of the Planning and Environment Act 1987 to direct the demolition of additions to an inner-city terrace which the plaintiffs contended had been undertaken in purported furtherance of what they said was a void planning permit. The Court concluded that the permit was void, but declined to order the demolition of the extensions because they had by then been completed. The outcome was perhaps not dissimilar to the one which might be reached today upon an application to cancel a permit under Section 87 of the Planning and Environment Act 1987 in light of the provisions of Section 88 of that statute already referred to. The Court also declined to make a declaration that the planning permit was void. O'Bryan J said it would be 'futile' to make a declaration in those circumstances and might operate harmfully in the future as a blot on title [1985] VicRp 48; [1985] VR 433, 473-4. The Full Court found that His Honour did not err in this exercise of discretion [1985] VicRp 48; [1985] VR 433, 496 per Kaye and Marks JJ. Similarly here, in the absence of evidence that any more satisfactory screening arrangement is possible, it would in my view be futile at best and harmful at worst to make the declaration which Mr Ross seeks.

23

In addition my inspection of the development site and its environs showed that the quality of the screening caused no substantial amenity problem as at the front fence of Mr Ross' house at No. 9. The upper floor of the David Jones building was visible from this point only intermittently and relatively distantly. The naked eye gained a materially different impression from the photograph taken with a 'zoom' lens relied upon by Mr Ross.