Sinclair & Anor v Tripodis Constructions Pty Ltd & Anor [2013] VSC 722

1 The Applicants, Mr and Mrs Sinclair, seek leave to appeal from the order of the Victorian Civil and Administrative Tribunal made on 16 May 2013, in which the Tribunal ordered that a permit be granted to redevelop land at 31 Bayview Crescent, Black Rock, allowing for the construction of four double storey dwellings (in lieu of the existing single dwelling) on the site in question. For reasons of convenience, the submissions in the application for leave to appeal and in the appeal were heard at the same time.

2 The application to the Tribunal was made pursuant to s 79 of the Planning and Environment Act 1987 (the 'PE Act') on the grounds that the Bayside City Council, as responsible authority, had failed to make a decision on the permit application within the prescribed time. The Applicants were objectors to the permit application and parties to the Tribunal proceeding. They, and other objectors to the permit application, were represented by a town planner who called evidence from an architect, Mr Neil de la Coeur.[1]

3 Mr de la Coeur's evidence was described in his written report as 'an analysis of neighbourhood character from a statistical viewpoint'. Relevantly, Mr de la Coeur identified an area for the purpose of analysing 'existing neighbourhood character' and a smaller area for the purpose of analysing 'emerging neighbourhood character'. He analysed site area per dwelling on these two different bases to identify a density figure (number of dwellings per square metre) that the site area could support.[2] Mr de la Coeur concluded that the site could support 3.05 dwellings and that the proposal to construct four dwellings therefore represented an overdevelopment of the site.

4 The Tribunal did not take Mr de la Coeur's evidence into consideration and assessed the proposed development without reference to any analysis of density based upon numerical metrics. It considered the question of density broadly, principally by reference to neighbourhood character and the requirements of cl 55 of the Bayside Planning Scheme (known as 'ResCode') and the assessment of such things as setbacks, site coverage, permeability, height and so forth. This was described as a 'performance-based assessment', as opposed to a quantitative one.

5 Although one of the questions of law in this appeal is whether the consideration of density under the Bayside Planning Scheme is confined to an assessment under cl 55, that question arises only in the context of what is, in effect, said to be the fundamental error made by the Tribunal, namely its failure to have regard to Mr de la Coeur's evidence.

6 The Applicants' complaint is, in essence, that the Tribunal did not take into account Mr de la Coeur's evidence or carry out any quantitative analysis of density. They contend that the Tribunal fell into error by limiting itself to a performance-based assessment of density under ResCode and in stating that Mr de la Coeur's evidence was irrelevant.

7 For the reasons that follow, I am not persuaded that the Tribunal has erred by declining to take into account Mr de la Coeur's analysis of density based on numeric metrics or in considering density on a qualitative basis only.

8 The Tribunal carried out its task by considering whether there was policy support for the proposal, whether the proposed development was respectful of the neighbourhood character of the area and whether it created unacceptable amenity impacts. It concluded that the site was suitable for increased density of development due to its location in reasonable proximity to public transport, shops and other facilities and because local and State policy supported increased diversity of dwellings.[3] The Tribunal found that the design, although contemporary, was respectful of the neighbourhood character of the area, and that the development would not detrimentally affect amenity.[4] It concluded that 'the contemporary design of the proposed four double storey dwellings would not erode the scale and density of the surrounding area and would make a positive contribution towards the character of the neighbourhood.'[5]

9 The Tribunal observed that the Bayside Planning Scheme seeks to direct new medium density housing to 'residential opportunity areas' (cl 21.03) and to achieve design outcomes that contribute to a sense of place that maintains, strengthens and enhances local character (cl 21.06-1.1). Medium density housing outside of residential opportunity areas must not significantly erode the prevailing scale and density of housing (cl 21.06-1.1).[6]

10 In relation to neighbourhood character, the Tribunal referred to cl 22.06 of the Planning Scheme, which described preferred future character based on precincts identified in the Bayside City Council Neighbourhood Character Review. The Neighbourhood Character Review divided the area into precincts in respect of which valued character elements were identified and a preferred future character was described. The preferred future character statement for the relevant precinct, Precinct E4, is described as follows:

The diverse dwelling styles sit within informal coastal gardens with large trees. There is a lightness to the structures and streetscapes due to the use of lighter building materials, colours and design detailing. The informal coastal feel is enhanced by street treatments including informal coastal street trees and the retention of the wide nature strips. Buildings fronting the foreshore reflect their setting and provide a visually attractive built form interface with the reserve.

11 The Tribunal found that the design proposal reflected the characteristics listed in the guidelines for Precinct E4 and that cl 22.06-3 of the Planning Scheme included policy to aid the exercise of discretion in decision-making, with provision for using the characteristics of the immediate vicinity of a site to determine a preferred future character, creating scope for the character of the immediate surrounds to assist in assessing how well the proposal's design contributed to and respected the neighbourhood character around the site. This included streetscape character and built form dominance, and allowed consideration of backyard-scape and how that element contributed to neighbourhood character, particularly with respect to density and whether the proposal would detrimentally affect the elements of neighbourhood character.[7]

12 The Tribunal then considered under distinct sub-headings 'Streetscape and scale' and 'Density and backyard-scape'. In relation to the former, the Tribunal concluded that the design elements of the proposal did not 'result in a significant erosion of scale of development prevailing in the character of the locality.'[8] It found that the design was respectful of the scale and built form character found in the area and was 'somewhat less bulky and dominant on the streetscape of the area.'[9]

13 Mr de la Coeur's evidence was considered under the second heading, 'Density and backyard-scape'. The treatment Mr de la Coeur's evidence on backyard-scape is not in issue in this appeal. What is in issue is the Tribunal's treatment of Mr de la Coeur's evidence concerning the density of the development. In this respect, the Tribunal said:

Mr de la Coeur presented detailed evidence concerning the density of development both existing and proposed with a view that the proposal exceeded what he considered an acceptable density for dwellings per square metre of land area. [Counsel for the developer] in his submission posed the viewpoint that density, based on numerical metrics is not a relevant planning consideration.

I accept the provisions of ResCode under cl 55 of the Bayside Planning Scheme places the consideration of the density issue for medium density residential development under a performance-based assessment process which includes an assessment of neighbourhood character and resulting design response.

The assessment of medium density residential development is a performance-based process where the use of numerical density provisions is not the driver of how assessment is conducted or in making decisions. I find myself in agreement with the position of [counsel for the developer] in this regard and accept the provisions of ResCode provide for how the density of a proposed medium density residential development such as what is before me is to be assessed by, including setbacks, site coverage, permeability coverage, open space provision, building heights etc ... .[10]

14 The Applicants have put forward nine grounds of appeal that they say raise the following two questions of law:

(1) Does the proper construction of the Bayside Planning Scheme confine the consideration of density to an assessment under Clause 55 (ResCode) of the Scheme?

(2) Is an assessment of density based on numerical metrics an irrelevant planning consideration under the Bayside Planning Scheme?

15 In my view, the questions of law are misconceived.

16 It is not clear that the Tribunal did decide that an assessment of density based on numerical metrics was an irrelevant planning consideration. The Tribunal did not describe Mr de la Coeur's evidence as irrelevant; rather, it said that a numerical density analysis was not the 'driver' of assessment and that it accepted the performance-based process in ResCode.[11] In other words, the Tribunal expressed a preference for a performance-based analysis, including in relation to density, for assessing the proposed development.

17 However, even if the Tribunal did decide that an assessment of density based on numerical metrics was an irrelevant planning consideration, it is not contended that the Tribunal took into account something that it should not have taken into account in making its decision; rather, it is said that the Tribunal failed to take into account something that it should have, having incorrectly identified the matter or thing as an irrelevant consideration.

18 Not taking a particular matter or thing into account because it has been identified as an irrelevant consideration will only be a vitiating error if the consideration was a relevant consideration in the sense described by Mason J in Minister of Aboriginal Affairs v Peko-Wallsend Ltd,[12] that is, something that the decision-maker was bound to take into account, either by the express terms of the statute conferring the decisionmaking power or by implication, having regard to the subject-matter, scope and purpose of the statute.[13] Misdescribing a matter or thing as an 'irrelevant consideration' and declining to take it into account will only be an error of law if the matter or thing was required to be taken into account.

19 Furthermore, to assert that consideration of density cannot be confined to an assessment under ResCode is not to identify vitiating error. Again, the Applicants must establish that the Tribunal's assessment (whether exclusively under ResCode or whether under ResCode and other policies in the Planning Scheme) involved a failure to take into account some matter or thing that was required to be taken into account. In issue again is the evidence of Mr de la Coeur and whether the Tribunal was bound to take into account his quantitative analysis of density when making the decision whether or not to grant a permit.

20 Hence, although two questions and nine errors of law have been identified in the proposed notice of appeal, the critical question is whether the Tribunal erred in refusing or failing to have regard to Mr de la Coeur's quantitative analysis of density.

21 A decision-maker will fall into error if he or she fails to take into account a matter that he or she was bound to take into account or takes into account something that he or she was not permitted by the statute to take into account. However, as the learned authors of Judicial Review of Administrative Action[14] note, '[m]any Acts are properly construed as allowing their decision-makers to consider all sorts of relevant things, but as requiring them (in the sense that breach will result in invalidity) to consider very few things.'[15] Where the legislation neither obliges nor forbids the decision-maker to take a particular matter or thing into account, no error of law can flow from the fact that the matter or thing was considered or, alternatively, that it was not considered.

22 It is necessary to construe the legislation to determine what the decision-maker is bound to take into account and what the decision-maker may properly take into account in the exercise of discretion. In the exercise of the planning discretion, the field of considerations that the decision-maker may take into account but is not required to take into account is a large one, as the decision-maker is charged with the task of integrating a range of considerations in order to arrive at an appropriate planning decision and must resolve potentially conflicting objectives within the policy matrix.[16]

23 Section 84B of the PE Act sets out the matters to which the Tribunal must have and may have regard. The matters to which the Tribunal must have regard include those to which the responsible authority had or was required to have regard to under s 60 of the PE Act. Although s 60(1A) provides that the responsible authority 'may' consider a variety of further matters, it is its duty to do so when the matter is plainly relevant to the subject matter of the permit application.[17]

24 Having regard to the way in which the Applicants put their case, in order to establish vitiating error by the Tribunal, they must identify a requirement for a quantitative assessment of density in the Planning Scheme.

25 Both the Applicants and the Council refer to cl 21.06-1 of the Planning Scheme, which invites consideration of density in residential areas, in particular by reference to whether the proposed development will significantly erode the prevailing density of housing. The Applicants and the Council submit, in substance, that density under cl 21.06-1.1 is to be assessed independently of and differently from the assessment undertaken pursuant to cl 55.

26 According to the Applicants, cl 21.06-1.1 does not confine consideration of density to an assessment under cl 55. Clause 55 and the Local Planning Policy framework play different roles in the assessment of a planning application, with local planning provisions applying specifically to the individual municipality and/or area, while cl 55 is part of the Statewide Victoria Planning Provisions. Moreover, cl 21.06-1.1 was introduced into the Planning Scheme after cl 55 and, if it was intended that density be assessed exclusively by reference to cl 55, the Planning Scheme would have said so.

27 In support of this submission, the Applicants refer to the decision guidelines for the Residential 1 Zone which provide that, before deciding on a permit application, in addition to the decision guidelines in cl 65, the responsible authority must consider, as appropriate:

• the State Planning Policy framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

• The objectives, standards and decision guidelines of Clause 55.

28 This, so the Applicants contend, means that the considerations under cl 55 and cl 21.06-1.1 must receive discrete attention.

29 As to how this attention is to be given, the Applicants submit that cl 21.06 does not expressly state how density is to be assessed and there is nothing in cl 21.06-1 restricting the assessment to a performance based density test. They submit that it is 'entirely open' and 'entirely logical' to use a numerical density test.

30 Likewise, the Council submits that by reason of the decision guidelines relating to the Residential Zone, the Tribunal was required to consider both policy (cl 21.06) and cl 55 as independent requirements. It submits that the task of the Tribunal, whether by direct reference to policy or via cl 55, included considering whether the proposed development would significantly erode the prevailing density of housing and that it was therefore necessary for the Tribunal to make an assessment of the prevailing density. The policy does not specify how the prevailing density of housing is to be assessed and both quantitative and qualitative methods must be open to the Tribunal.

31 According to the Council, the density of housing is understood as meaning dwellings in relation to a particular area of land. It is therefore a mathematical concept, although it can also be expressed by words such as 'low', 'high', 'medium' and so forth. The Tribunal was required to consider whether the proposed development would significantly erode, in the sense of diminish, the prevailing density of housing. In carrying out that task, consideration of numbers was clearly relevant, even though it might not be determinative.

32 The Council conceded that the Tribunal made a finding that the proposed development would not significantly erode the density of the surrounding area. The question, however, was whether, in making that finding, the Tribunal interpreted the policy correctly or whether it excluded consideration of the policy by its finding that density as measured in numbers was irrelevant. According to the Council, the Tribunal erred by thinking that cl 55 somehow excluded a consideration of density per se and by confining its consideration to other measures which, if properly applied, would achieve a satisfactory outcome in relation to density.[18]

33 In my view, none of these submissions is to the point. It may well be that both qualitative and quantitative methods of analysing density were open to the Tribunal under cl 21.06-1.1. However, for the reasons that I have given, it was not a vitiating error for the Tribunal to decline to take into account an assessment that it could have taken into account but was not bound to take into account. For the reasons that follow, I am not persuaded that cl 21.06-1.1 required the Tribunal to undertake an analysis of density based on numerical metrics and therefore to take into account Mr de la Coeur's evidence.

34 The PE Act establishes, and the Planning Scheme reflects, a framework in which a decision-maker can make a judgment about whether the density and scale of an area will be significantly eroded by a proposed redevelopment without resort to a quantitative analysis of density. In particular, cls 21.06-1.1 and 22.06 neither expressly nor by implication require the density question to be considered or answered by reference to a quantitative or numerical analysis.

35 The Council sought to make something of the fact that the strategy in cl 21.06-1.1 concerning the erosion of the prevailing density of housing was introduced into the Bayside Planning Scheme in 2003 and was further strengthened by Amendment C99 to the Municipal Strategic Statement in May 2011. This was, so it was suggested, a 'back door' way of reintroducing a numeric density test into the Planning Scheme.

36 I reject this submission. I do so having regard to the subject-matter, scope and purpose of cl 21.06, and to its general 'flavour'.

37 Clause 21.06-1 records in its overview that Bayside is characterised by low density and low rise residential suburbs that have ample outdoor living space with predominantly tree lined streets, premium real estate and historic homes, much of it in a seaside setting. The features of the character of Bayside's residential areas are valued by the community and are intended to be retained and enhanced as the preferred character in most areas. In cl 21.06-1.1, under 'Key Issues', reference is made to the need to provide certainty in relation to the preferred future character for residential areas and that development and subdivision outside of residential opportunity areas should not significantly erode the prevailing scale and density of housing. Objective 1 is expressed as follows:

To achieve quality design outcomes which improve the image of land use and development in Bayside and contribute to a sense of place appropriate to Bayside's character and maintains, strengthens and enhances local character.

38 Four strategies are set out to achieve Objective 1, relevantly:

• Ensure that development and subdivision of land in the residential areas of the municipality contribute to preferred future neighbourhood character.
• Ensure that redevelopment and subdivision outside residential opportunity areas does not significantly erode the prevailing scale and density of housing.

39 For residential areas, the strategies are to be implemented as follows:

• Apply the Neighbourhood Character Policy, cl 22.06 to applications in residential areas and identified precincts.
• Implement the recommendations of adopted urban character studies for residential locations to protect and enhance Bayside's residential amenity.

40 The Neighbourhood Character Policy, cl 22.06, is expressed to build on the objectives of cl 21.06-1.1, to implement the findings of the Bayside Neighbourhood Character Review 2004 that identifies the key valued characteristics and preferred future character of Bayside's residential area and to provide design guidance to ensure that development and, where relevant, works, respond to the preferred future character of residential areas. Clause 22.06-4 contains 'character area statements' for precincts into which the municipality is divided. Each precinct is given a preferred future character and then, in tabular form, precinct guidelines that are divided into objectives, design responses, and things to be avoided. The relevant precinct for the subject site is precinct E4, for which a preferred future character is described that makes no express reference to densities, but refers to a 'lightness' of structures and streetscapes. One of the objectives is to ensure that building setbacks from boundaries contribute to the informality and spaciousness of the area and visual separation of buildings. The design response is through the siting of buildings. The loss of front garden space is to be avoided.

41 There is nothing in any of this to suggest a requirement to assess density according to a mathematical formula. To the contrary, the relevant policies emphasise impressions and qualities such as character and sense of place, requiring application of the neighbourhood policy which, in turn, emphasises future preferred character having regard to broadly articulated objectives and design responses for individual precincts in the municipality.

42 Clause 55 embodies a similar approach. One of its purposes is to achieve residential development that respects the existing neighbourhood character or which contributes to a preferred neighbourhood character. It therefore requires an application for a permit to be accompanied by a neighbourhood and site description and design response, which must explain, among other things, how the proposed design responds to any neighbourhood character features for the area identified in a local planning policy. Further, under cl 55.02, which concerns neighbourhood character, the design response must respect the existing or preferred neighbourhood character and respond to the features of the site. Before deciding on an application, the responsible authority must consider any relevant neighbourhood character objective policy or statement in the planning scheme, the neighbourhood and site description and the design response.

43 Thus, although cl 55 sets standards for site layout and building massing, impacts on site amenity and facilities and design, it also imposes a requirement to have regard to neighbourhood character objectives, policies and statements in the Planning Scheme as a whole.

44 The Tribunal had regard to both local policy and cl 55 in considering the density of the development. In my view, neither required the Tribunal to consider or undertake a quantitative analysis of housing density before granting the planning permit. It was open to the Tribunal to analyse housing density by reference to performance-based measures and it did so.

45 The proposed grounds of appeal are not made out. The Tribunal did not err in restricting its consideration of density to an assessment under cl 55 or in its treatment of Mr de la Coeur's evidence.

46 The criteria for the grant of leave to appeal were considered in Secretary of the Department of Premier and Cabinet v Hulls.[19] Relevantly, an applicant must identify a question of law arising out of the Tribunal's decision, but need not establish that the Tribunal erred. Rather, the applicant must establish that the there is a real or significant argument to be put that error exists. The public or general importance of a question may also be a relevant consideration. However, whether leave should be granted must always depend on the justice of the particular case.

47 In this case, there is no real or significant argument to be put that error exists. Leave to appeal is refused.

[1] Mr Sinclair also made separate oral and written submissions to the Tribunal.

[2] Mr de la Coeur also carried out an analysis of character with regard to the rear of the surrounding sites and sky view, followed by an assessment of off-site amenity, public realm and pedestrian spaces, safety, and internal amenity. That part of the evidence was not the subject of the present controversy.

[3] Tripodis Constructions Pty Ltd v Bayside CC [2013] VCAT 752, [10] ('Reasons').

[12] [1986] HCA 40; (1986) 162 CLR 24 ('Peko-Wallsend').

What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.

[14] Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Lawbook Co., 5th Edition, 2013).

[16] Rozen v Macedon Ranges Shire Council [2010] VSC 583, [158]; [167].

[17] Returned & Services League of Australia (Victorian Branch) Inc., Glenroy Sub-Branch v Moreland City Council and Anor [1998] 2 VR 406, 413-4.

[18] Transcript of Proceedings, Sinclair & Anor v Tripodis Constructions Pty Ltd & Anor (Supreme Court of Victoria, S CI 2013 3526, Emerton J, 22 October 2013) 90.

[19] [1999] VSCA 117; [1999] 3 VR 331 as reaffirmed in Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, 55-6.