For the Responsible Authority: Mr John Carey of Maddock Lonie and Chisholm

For the Permit Applicant: Mr C. Wren of Counsel, instructed by Keith R. Cameron, Solicitor

For the Objectors: Ms Maria Sibilia, objector in person

1. The land at 9-13 Rose Street Clayton was used for many years as a tennis court complex associated with the parish of the nearby Catholic Church of St Peter. A town planning consultant filed a permit application dated 11 June 1998 with the City of Monash as Responsible Authority under the Monash Planning Scheme seeking a permit "to demolish the existing club house building and to erect thereon four two-storey buildings and use them for 15 dwellings". The permit was ascribed number 24759 and on 16 December 1998 the Council issued a permit bearing that number for the development of the site and its use for 13 double storey dwellings. The first condition in the permit required the submission of amended plans for approval by the Responsible Authority which plans, when approved, would be "endorsed and ... form part of the permit".

2. Following the issue of the permit it was amended in a number of respects ostensibly pursuant to Section 73 of the Planning and Environment Act 1987. When the development was completed it appeared that Unit 13 had been constructed 383mm closer to the western boundaries than was shown on the plans endorsed on the permit as amended.

3. As a result Emblem Heights lodged a further permit application dated 5 July 2000 and received by Council on 7 July seeking a permit under the Planning and Environment Act for the development "as built". Council received three objections to the grant of the permit from a Ms Sibilia who gave her address as a post office box at Camberwell; Amelia Bernardo of 3/7 Rose Street Clayton and John D'Amelio of 3/7 Rose Street Clayton 3168. On 30 August 2000 the Council issued a Notice of Decision to Grant a Permit subject to some 12 conditions. On 19 September 2000 the three objectors lodged an application for review with this Tribunal.

4. Following an earlier hearing which was taken up with arguments as to the objector Ms Sibilia's entitlement to be represented by the same planning consultant who had acted on behalf of Emblem Heights Pty Ltd in lodging the initial permit application the matter has come on for hearing before us. Ms Sibilia represented herself and as we understand it, acted as spokesperson for the other two objectors. It seems that all three are either owners or occupants of 3/7 Rose Street Clayton. Ms Sibilia is an occupant of that unit.

5. The "new format" Monash Planning Scheme was gazetted on 16 November 2000. The site was zoned Residential C under the previous Scheme. It is now zoned Residential 1 under the new Scheme. Clause 32.01-4 states that a permit is required to construct two or more dwellings on a lot. The site has a frontage of 61.57m, a depth of 48.9m and a total area of approximately 2,973sq m. The site now contains the 13 unit residential development provided for by the earlier permit subject to the dimensional discrepancy already described. Unit 3/7 Rose Street, the address of the objectors is the rearmost property abutting the site on its western boundary. The site and its surroundings are flat. The units are in two rows, six fronting Rose Street and seven at the rear of the site. Access is provided by two driveways opening to Rose Street close to the east and west boundaries of the site. The "as built" and the endorsed plans differ from the plans initially advertised in a number of respects. The endorsed plans in the development as built has the walls of the units either parallel to Rose Street or at a 90o angle to its alignment. The plans as advertised set the units at slightly skewed angles to the Rose Street alignment. The site is subject to some three restrictive covenants registered under the terms of the Transfer of Land Act 1958. None of them, however, is relevant to the present use and development application.

6. Permit 24759 in the second bullet point to Condition 1 required:

"Unit 13 to be relocated to adjoin Unit 12 to prevent overshadowing of the adjacent dwellings' private open space."

7. Unit 3/7 Rose Street is the immediately abutting dwelling. This stipulation was included in the condition apparently as a result of the representations made by the present objectors. This requirement was apparently removed by a "minor" amendment under Section 73 of the Planning and Environment Act. The file note on the Council's file dated 9 March 1999 by Planning Officer Ms Celia Davey states that this amendment was made in light of the production of two amended plans of that portion of the site signed by Mr D'Amelio who is it seems the owner of Unit 3/7 Rose Street. Both these plans depicted a separation between Unit 12 and Unit 13. The file note indicates that Ms Davey took the signature of these two partial plans by Mr D'amelio as indicating his agreement to the dispensation of this requirement from the permit.

8. The permit application seems to have been the result of enforcement proceedings brought by the objectors and Council's refusal to effect a further amendment to the endorsed plans to accord with the "as built" dimensions.

9. Mr Carey of Maddock Lonie and Chishom appeared for the Council. He submitted that permit reviews such as this generally raise some three amenity issues:

* the amenity of future occupiers of the development.

10. According to Mr Carey "it is respectfully submitted that the application before the Tribunal does not give rise to considerations in respect of the amenity of the neighbourhood in general". He noted a pattern in the City of Monash of single dwellings with large garden blocks. The present site was in an area that represented a departure from that norm. The objectors' property for instance is itself a part of a medium density development. Accordingly, said Mr Carey "the primary enquiry before the Tribunal is confined to the effect of the development on the amenity of the adjoining neighbours and more particularly, the effect of the development on a property at 3/7 Rose Street". The three issues which arose out of that consideration were:

11. There is no problem of overlooking from the first floor of Unit 13 since the only west facing windows at first floor level have obscure glazing. The site and its surrounds are flat so the ground floor windows are not elevated above ground level of the objectors' property. The development includes a 1.8m paling fence. Condition 3 of Council's Notice of Decision to Grant a Permit is in the following terms:

"A screen is to be attached to the west wall of Unit 13 so that the visual outlook from inside that dwelling is the kitchen window of the adjacent dwelling [that is the objector's property] is truncated."

12. Mr Carey said that since this site is to the east of the objectors' property overshadowing "will only occur in the morning". He said that shadow diagrams demonstrated that there would be no shadows after 11.00 a.m. on the equinox which was well within the requirements of the Good Design Guide.

13. He submitted that having the wall some 383mm closer than as depicted on the endorsed plans "will make no perceivable difference to the development". Element 6 Technique 4 of the Good Design Guide would, he said, permit a set back of only 1.72m.

14. Mr Carey conceded that the development did not comply with Element 9 Technique 1 of the Good Design Guide as modified for the purposes of the Monash Planning Scheme by way of local variation. The locally varied Element 9 Technique 1 requires that dwellings have private open space consisting of at least

"* an area at ground level totalling 75m2, with one part of the side or rear with an area of 35m2 and a minimum width of 5m which has convenient access from a living room; or

* a balcony with an area of 18m2 and a minimum width of 1.6m which has convenient access from a living room; or

* a roof-top space with an area of 10m2 and a minimum width of 2m which has convenient access to a living room."

15. Mr Carey noted that at the time the first permit application was lodged and Council issued the original permit, there was no non-compliance. It was only the adoption of the new format Scheme that created the problem. He submitted that as a matter of discretion in the circumstances, compliance with that portion of the locally varied Good Design Guide should be dispensed with.

16. Ms Sibilia drew attention to the discrepancy between the plans as advertised, those endorsed and the development as built relative to the orientation of the units. She said that the failure to relocate Unit 13 to adjoin Unit 12, rather than leaving it separated from Unit 12 as both the present endorsed plans and the as built plans amounted to a contravention of Council's original determination.

17. She also said that the requirement for the screening of views to habitable room windows in adjoining dwellings from Units 1, 7, 8, 12 and 13 and between Units 3 and 4 in accordance with Element 7 of the Good Design Guide had not been complied with, nor had the screening of views into the private open space of adjoining properties from Units 1 and 7 through to 13 in accordance with Element 7 of the Good Design Guide been dealt with. She submitted that the endorsement of amended plans on 9 March 1999 was illegal. She referred to Cook v City of Doncaster and Templestowe (1990) 5 AATR 181, 185 where Mr W. Webb as Deputy President of the Administrative Appeals Tribunal found that the endorsement of certain plans was illegal.

18. She said it was not possible or proper for a permit applicant to reach agreement with a party to resolve a development dispute and then go back on the agreement and seek to have it re-written by Council by way of amendment. She referred to Morrison v City of Stonnington 1999/85514 paragraph 47. As to the amended plans, she said:

"The developer Chris O'Farrell and the architect John Dimos coaxed Johnny D'Amelio to sign drawings and said that if he didn't sign, Johnny would be up for costs, as there were banks and QC's involved, then presented them separately on two different dates, 27 January 1999, and 17 February 1999, to the Council giving the Council's Town Planner the false impression that Johnny had changed his mind to agree to a new layout of the proposal and the change in Unit 13, when in fact Johnny had only agreed to the stairs being on the west boundary."

19. She said "the Town Planner as a matter of law could not legally endorse a set of plans which contravenes the Council decision, which was clearly spelled out in Council's permit". She said that the development as built adversely affected the amenity of the objectors. She continued:

"It is beside the point to say that .4m decrease in setback would have little material impact. The correct legal position is that the west wall of Unit 13 should have been moved at least another 2m to the east if Condition 1.2 of the permit TPA/24759 were to be complied with [that is the requirement to cause Unit 13 to abut Unit 12].

Therefore the measurement of detriment should start with what has been authorised by the permit in the first place and what the permit applicant has built. Only a blind person could not see the difference in impact between `as approved' and `as built'. This is totally contrary to the spirit of agreement as stated in Morrison's case."

20. She said that the permit application was not properly considered and determined by Council because contrary to Section 52(1)(a) of the Planning and Environment Act 1987 notice was not given to all owners and occupiers of adjoining properties. She noted that no advertising board was erected on-site. She referred to the non-compliance with the local variation of the Good Design Guide. She observed that the report to Council did not make it "aware of the legal position that the endorsement of the plans on 9th March 1999, was invalid for Permit No. TPA/24759. Consequently the Council was mislead to believe that the issue before us was a petty one at .4m closer setback from the west boundary".

21. She submitted that there was no jurisdiction to grant a permit for development that had already been completed. She referred to Tennyson Textile Mills Pty Ltd v Ryde Municipal Council (1952) 18 LGR (NSW) 231; Lowe v Mosman Municipal Council (1953) 19 LGR (NSW) 193; Freeman v Shoalhaven Shire Council [1980] 2 NSWLR 826; Blakeney v Mosman Municipal Council (1983) 51 LGRA 1; Longa v Blacktown City Council (1985) 54 LRA 422; Attorney-General v City of Preston ex rel Kynvenos (1982) 57 LGRA 345. She said that in so far as Tribunal decisions had held otherwise they were trumped by the decision in Kynvenos' case which was a decision of the Supreme Court.

22. Mr Wren of Counsel appeared on behalf of the permit applicant Emblem Heights Pty Ltd. He said that the plans endorsed on the permit in March 1999 show Unit 13 as having a setback from the objector's property abutting the western boundary of the site of 2603mm. The unit as constructed has a setback of only 2260mm. He noted that this setback was the setback depicted on one of the plans submitted to and signed by Mr D'Amelio, owner of the objectors' property. He continued "unfortunately, a mistake was made apparently during the course of pegging out the rear unit".

23. Mr Wren observed that according to Element 6 Technique 4 of the Good Design Guide a setback of 2.2m allows a wall height of 7.67m.

"The wall height as built, was less than 5.5m so that the as built condition easily achieves the amenity test set by that technique. That is, the wall height is about 40 percent less than the technique maximum. Similarly, the difference between the perceived building height viewed from the adjoining units in the as-built and the as-approved cases will be negligible and have no detriment. In any event, the setback is as agreed by Mr D'Amelio."

24. Mr Wren surveyed what he said was the history of these disputes and submitted he had demonstrated that the objectors were abusing the planning process. He said that Ms Sibilia requested payment of $120,000 by the developer as the price of her withdrawing objection to the "as built" development in a conversation with his instructing solicitor.

25. Mr Wren submitted that Council's determination should be affirmed and that we should direct the issue of a permit in accordance with the Notice of Decision subject to the deletion of the requirement that there be a screen on the wall of Unit 13 to truncate the view from the kitchen window.

26. He further submitted that the applicants should pay his client's costs to be taxed as between solicitor and client upon the Supreme Court Scale.

27. First it should be noted that this proceeding relates to Council's determination made in 2000 to issue a permit for the development as constructed. It is not a proceeding to determine the validity or otherwise of the permit issued in 1998 or the validity of the endorsement of the plans on that permit in March 1999. We note however that Section 73 of the Planning and Environment Act 1987 authorises a responsible authority to make what are colloquially described as "minor" amendments to a permit. These amendments may only be made assuming that a number of requirements set out in Sub-sections (1) and (2) are met. The only one relevant in the present circumstances that the amendment may not be approved unless the authority was satisfied that it "will not cause an increase in detriment to any person". We believe that a responsible authority could reach such a conclusion in circumstances where:

(a) the proposed amendment did not violate the provisions of the Good Design Guide; and

(b) the person affected by it had apparently consented in writing to the amendment.

28. We note that Ms Sibilia has not suggested that Mr D'Amelio as owner of the objector's property did not have authority to speak for all of the objectors, rather her contention was that he was misled and confused. He gave his apparent consent to the change in circumstances where it would have been obvious to those dealing with them that he did not appreciate the effect of what he was doing.

29. The Tribunal's practice in planning applications is not to take evidence on oath and generally to receive information as to the circumstances surrounding a permit application by way of submission made by mere assertion across the bar table. In most cases this is an appropriate means of proceeding because on ordinary planning permit application the Tribunal makes no findings of fact, determines no issues between parties, merely reaches a view as to the proper exercise of an administrative discretion. The character and antecedents of the permit applicant and the objectors are generally beside the point. The permit relates to the land and is not personal. The permit applicant may sell out; the objectors may leave the area; the permit applicant may not even be the owner of the land. Where however a party desires the Tribunal to act upon a specific finding of fact, viz. that a person was mistaken; that an objector was misled, etc. there is no justification - at least unless other parties are prepared to concede the proposed finding of fact, for asking the Tribunal to make such a finding on the basis of hearsay and without the opportunity of hearing the relevant persons give evidence on oath and be cross-examined. If Mr D'Amelio did not understand what he was doing or believe that he was somehow misled, he should have been available for cross-examination if he and Ms Sibilia want us to make a finding to that effect. On so crucial a point the explanation that Mr D'Amelio had business commitments is simply insufficient to dispense with his attendance. As already explained, these proceedings have been set in motion by the objectors, by brining enforcement proceedings. It is, we think, scarcely appropriate for one of them as a key witness to excuse himself from attendance on the basis of person convenience.

30. In those circumstances we are unable to interpret Mr D'Amelio's actions in signing the two amendments to the site plan as having any affect other than their natural and ordinary one, viz. that he was agreeing to the amendment. As previously noted Ms Sibilia has not called into question Mr D'Amelio's authority to speak for the objectors. Accordingly we cannot conclude that the form of the endorsed plans as distinct from the development as built, represents a breach of agreement, nor can we regard it as a piece of deception.

31. The location of Unit 13 relative to the objector's unit comfortably complies with the requirements of the Good Design Guide both as to overshadowing and visual bulk. We reject the contention that these matters have any unreasonable adverse affect on the amenity of the objector's property. We did not understand Ms Sibilia to challenge the correctness of the shadow diagram material presented by the Responsible Authority and the permit applicant. Once again this comfortably complies with the requirements of the Good Design Guide. (See Element 6 Technique 10.)

32. We also reject the contention that "the application was not properly considered and determined by the Council". We were shown an extract from the Council's file which indicate that notices of the permit application were given to all owners and occupiers of lots adjoining the site in accordance with Section 52(1)(a). The fact that the development does not comply with the private open space requirement of the local variation of the Good Design Guide does not in itself invalidate Council's consideration of the permit application. In any event, even if it did, that would not deprive this Tribunal of jurisdiction now to hear and determine the matter. The Tribunal has power to review a decision "even if the decision was beyond the power of the decision-maker". See Section 4(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998. In addition, in dealing with review applications under planning enactments by force of Clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998:

"The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with a planning enactment or any other enactment and, in doing so, may determine to disregard the failure if the Tribunal considers it in the interests of justice to do so."

33. This brings us to the most substantial of the contentions made by Ms Sibilia, namely that since this development has already been completed a permit may not "retrospectively" be granted with respect to it. This Tribunal and its predecessors have consistently adopted the view that a permit may be granted for a development despite its having been commenced or even completed illegally. An early example of this approach is to be found in the ruling of Dr P.H.N. Opas QC, then a Deputy President of the Administrative Appeals Tribunal in the matter of Wilson v Shire of Winchelsea (1988) 1 AATR 26, 30-35. The learned Deputy President referred to most of the New South Wales authorities relied upon by Ms Sibilia and distinguished them as pertaining to a different planning system. It is unnecessary for us to go over the ground already covered by Dr Opas. We respectfully agree with his analysis. Wilson's case has been consistently applied by this Tribunal and its predecessors. One example relied upon by Mr Carey is the matter of Phillips v Shire of Moorabool (1995) 15 AATR 212, 217-8. Perhaps more notably a three member Tribunal applied it in Faithland Inc. v City of Doncaster and Templestowe M.S. Cook and Others (1991) 6 AATR 294 where a three member Tribunal headed by Judge A.F. Smith then President of the Administrative Appeals Tribunal adopted the same approach as Dr Opas had in Wilson's case.

34. The approach in Wilson's case is so firmly embedded that in our view it would be displaced only by legislation, a decision of the Supreme Court or perhaps by a Tribunal constituted or headed by a judicial member.

35. It is important to bear steadily in mind what Wilson's case decided. In strictness it did not decide that a permit could be granted retrospectively. A permit granted in accordance with the Wilson principle would speak as from the date upon which it was issued. It would not absolve the developer from the consequences of the development's having been illegally in place from the time of its commencement or completion until the grant of the permit. Dr Opas himself observed:

"Of course, the hearing of an appeal does not excuse illegal conduct which has taken place before the appeal notwithstanding that a permit is directed to issue. The Tribunal is bound to hear the appeal on its planning merits, but if illegal activity has taken place, the person responsible for the breaches of the relevant law remain liable for the consequences of their illegal conduct." (1988) 1 AATR 26, 33

36. In addition to the considerations which moved Dr Opas in Wilson's case and those who have followed him, one might also consider the operation of Clause 62 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998. That provision had its predecessor and analogue in Section 54 of the Planning Appeals Act 1980. The clause is quoted earlier in these reasons. The illegal construction of a development without the necessary permit, could in our view be described as a "failure to comply with a planning enactment". The clause specifically provides that the Tribunal has jurisdiction should it wish to take that jurisdiction in the interests of justice despite the non-compliance. In the present context it would be in the interests of justice to disregard the non-compliance if the Tribunal were satisfied that what had been constructed illegally was such as should obtain a permit in accordance with proper planning principles or should obtain a permit subject to the imposition of certain additional conditions. The alternative viz. to pull down something which might thereafter be approved and then have to be reconstructed is neither sensible nor just. In an editorial comment appearing at 1 AATR 26 the Learned Editors comment upon Wilson's case under the heading "The law is not an ass" and observed

"The editors respectfully suggest that the decision is both sensitive and correct. The fact that a building has been built is irrelevant to the exercise of planning discretion save to the extent that it facilitates an assessment of the impact of that building, but if the building has been built illegally by the applicant it may also bear upon the confidence with which performance conditions might be expected to be observed.

What is relevant to the exercise of the planning discretion is the building described in the application for permit. If that building has already been built, the applicant will have saved time if his application is granted, albeit at the risk of prosecution. If his application is refused he will have problems."

37. It will be recalled that one of the bases upon which Dr Opas declined to apply the New South Wales authorities which were pressed upon him was that whether distinguishable or not, they came from a different jurisdiction and were not binding upon him. Ms Sibilia has referred to a decision of the Supreme Court of Victoria in support of her submission, namely Attorney-General ex rel Kynvenos v City of Preston (1986) 57 LGRA 345 which she submits supports the view and constitutes an authority from the Supreme Court of Victoria that retrospective planning permits cannot be issued. If this is correct, as Ms Sibilia observes, as a decision of the Supreme Court of Victoria Kynvenos' case is binding upon us and we will be required to apply its reasoning in preference to the reasoning in Wilson's case or any other Tribunal decision which was inconsistent with it.

38. Kynvenos' case certainly does stand for the proposition that a responsible authority has no jurisdiction to issue a "retrospective" permit, but Kynvenos' case is not relevant here because the permit sought by Emblem Heights Pty Ltd is not retrospective in the same sense as the impugned permit in Kynvenos' case was. The facts of Kynvenos' case are quite complex. It is unnecessary for us to recite those complex facts. The basis upon which the permits in Kynvenos' case were invalidated was this: on 10 December 1979 the Council of the City of Preston resolved to issue two permits for use and development of land, one under the Planning Scheme and the other under an interim development order. The permits, according to Jenkinson J.:

"Were issued in December 1979, but were dated 22 October 1979. The validity of those two permits was denied by Mr Ormiston QC [as His Honour then was] on the ground that the Council neither possessed, nor had purported to exercise by its resolution, a power to issue a permit under the Town and Country Planning Act 1961 bearing a date earlier than the date on which the permit had been granted. I accept that submission. Accordingly I would be prepared to declare that the issue in December 1979 of each of the permits dated 22 October 1979 was not authorised by the Council and was void and of no effect." (1982) 57 LGRA 345, 366

39. Any permit which we might direct to issue in these proceedings will bear the date upon which it is actually issued and will not purport to speak from any earlier date. Kynvenos' case is therefore irrelevant.

40. It follows from what we have said that a permit should issue in accordance with Council's Notice of Decision to Grant. Ms Sibilia furnished us with photographic evidence of the affects on the privacy of her residence and its private open space of the large kitchen window on Unit 13. Despite being satisfied that the requirements of the Good Design Guide have been met and that the 1.8m paling fence provides substantial screening, we are not persuaded that council has erred in requiring the additional measure constituted by the barrier to be affixed to the wall of Unit 13. Accordingly if even in the absence of an application for review by Emblem Heights Pty Ltd relative to these conditions, we have jurisdiction to delete that condition, we believe it should stand.

41. The practice of this Tribunal and its predecessors in the face of Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 and its predecessor in the planning jurisdiction Section 58 of the Planning Appeals Act 1980 has been in ordinary permit review applications to apply the presumption created by those provisions and let the costs lie where they fall. We have already summarised the arguments urged by the permit applicant.

42. Emblem Heights Pty Ltd accuses Ms Sibilia and her fellow objectors of opportunistic action and abuse of process. In the view which we take Ms Sibilia's stand might very well be regarded as opportunistic. On the other hand we remind ourselves that the present permit applicant is the author of its own wrong. The most charitable interpretation of events is that it, its consultants or contractors or all of them have been guilty of gross incompetence. More sinister interpretations are also open. We do not believe it would be proper to make a finding in favour of the permit applicant that these events occurred as a matter of mere mistake without the people involved giving sworn evidence and subjecting themselves to cross-examination.

43. This entire complex of proceedings has occurred because of the permit applicant's failure to adhere to the endorsed plans. The Responsible Authority was co-operative to the tune of amending the plans at the request of the permit applicant. Whatever criticism may be levelled at the objectors is counter balanced by this consideration as to where the ultimate fault lies.

44. In our view the proper course is to simply apply the presumption appearing in Section 109(1) and let the costs lie where they fall,