Victorian Civil and Administrative Tribunal|2005-08-31|Before: Stuart Morris J

Stella v Whittlesea CC [2005] VCAT 1825 (31 August 2005)

Planning Law - Declarations - Land zoned Industrial 1 - Meaning of condition in scheme requiring 30 metre setback - Whether a permit required to use land for industry or warehouse - Use of land as a car park does not constitute independent use but rather ancillary use to industry - Relevance of policy adopted by responsible authority which is not part of the scheme - Weight to be given to an adopted policy - Planning and Environment Act 1987, s149A

1 A landowner has applied to the tribunal pursuant to section 149A of the Planning and Environment Act 1987 ("the Act") for declarations concerning land at 16-20 Childs Road, Epping ("the land"). Two issues are raised. The first turns on the meaning of a condition requiring a 30 metre set back from the residential zone. The second raises the important issue of the relevance of a policy which does not form part of a scheme.

2 The land, which is on the north side of Childs Road, is in an Industrial 1 Zone pursuant to the Whittlesea Planning Scheme ("the scheme"). Land on the south side of Childs Road is in a Residential 1 Zone. Childs Road is in a Road Zone.

3 The applicant proposes to develop the land by constructing three factory buildings facing Childs Road, each having a floor area of about 400 square metres. It is proposed that these three factories be subdivided, with body corporate land being created between the factories and Childs Road. The body corporate land is to contain 28 car parking spaces, to be shared between the three factories, together with landscaping.

Is a permit required for industry or warehouse?

4 The use of land in the Industrial 1 Zone for the purpose of industry or warehouse does not require a permit, provided that certain conditions are complied with. One of these conditions is that "the land" must be at least 30 metres from land (not a road) which is in a residential zone. (The required distance from a residential zone is greater if the industry is of a type listed in the table to clause 52.10.) Unlike the situation considered in Harpero Pty Ltd v Frankston City Council[1], the 30 metres is to be measured to the land used for industry, not the buildings or works to be constructed for use in industry.

5 The applicant pointed out that none of the factory buildings will be within 30 metres of the residential zone. Rather the plans show that the only portion of the land within 30 metres of the residential zone will be the body corporate land, which will only be used for car parking and landscaping. In such circumstances, the applicant seeks a declaration that the use of the land for industry or warehouse, in accordance with the proposed plans, does not require a permit.

6 Accepting that the only activity that will take place on the portion of the land within 30 metres of the residential zone will be for car parking and landscaping, it does not follow that this land will not be used for industry (or warehouse). The use of the front portion of the subject land for car parking will not constitute an independent use of land; but will be ancillary to the use of the three factories for the purpose of "industry" (or "warehouse"). As such the front portion of the land is to be regarded, for the purposes of the scheme, as that of the substantive use - "industry" or "warehouse" - and not that of the ancillary use - "car parking". This conclusion is consistent with a long line of authority concerning the characterisation of the use of land: see, for example, Foodbarn Pty Ltd v Solicitor-General.[2] Thus a permit is required to use the land for industry or warehouse.

7 In January 1997 the responsible authority formally adopted a document "Planning Guidelines for Industrial Development". The document set out "requirements" for industrial developments, including provisions in relation to setbacks, building form and appearance, landscaping, fencing, car parking, storage and loading and advertising. Since that time a new format planning scheme has come into force. The scheme contains a municipal strategic statement and a number of local planning policies. An example of the latter is clause 22.09, which sets out policy concerning industrial development within the municipal district. Under a heading "policy basis" it is stated:

To assist in achieving appropriately located and designed industrial developments, council has prepared a comprehensive industrial development policy.

This is followed by a heading "Policy" and a number of provisions concerning the desired form of industrial development. In general, these provisions are not prescriptive in nature; but identify outcomes which are desirable. I take it that these provisions are the "comprehensive industrial development policy" that council has prepared. Clause 22.09 also contains a heading "Policy Reference" and this specifies the 1997 guidelines as a reference document.

8 The applicant seeks a declaration that the 1997 guidelines are an irrelevant consideration in determining a permit application for industrial development. The applicant contends that for a policy to be relevant it must be included in the planning scheme. Alternatively it says that the 1997 guidelines have been overtaken by clause 22.09.

Relevant principles before Planning and Environment Act

9 Before the enactment of the Act in 1987 it had been established that a responsible authority could adopt a policy to guide it in the exercise of discretionary powers and that an appeals tribunal would have regard to such a policy. However such a policy could not be applied inflexibly as this would be contrary to the existence of a discretion. Moreover the weight given to a policy would depend on the circumstances.[3] In Chrapot Investments Pty Ltd v City of Knox[4] the Planning Appeals Board adopted a statement of the Town Planning Appeals Tribunal as follows:

As a general rule the tribunal will place greater weight on a policy if it is based upon sound town planning principles. A policy will also be given greater weight if it is a public policy, and not a secret policy. A public policy conceived after considerable public discussion would be a weightier consideration still. A further factor is the length of time that a policy has been in operation. Related to this is the question of whether a policy has been consistently applied by the responsible authority. If a policy is a policy in name only, then little weight could be expected to be given to that policy in the normal course of events.

This does not represent a closed list of relevant factors; there are other factors that might influence the weight that should be given to a planning policy or guideline.[5] The question before the tribunal in this case is: has the advent of the Act or new format planning schemes changed these principles?

Relevant principles under Planning and Environment Act

10 There is no doubt that the Act has always contemplated the expression of planning policies in planning schemes: see sections 4(2)(b), 6(1)(aa) and 6(2)(a). In 1996, as part of reforms introducing the Victoria Planning Provisions, section 6(2)(d) was introduced. These reforms clearly anticipated that most policy statements and guidelines relating to the use or development of land would be included in planning schemes.[6] The method and content of new format, VPP-based, planning schemes, affirms this. These schemes, which were said to be "policy driven", invariably contain substantial policy provisions.

11 But do these provisions require all such policies and guidelines to be included in planning schemes?

12 Before seeking to answer this question, it is useful to note the benefits in setting out applicable policies and guidelines in planning schemes. So expressed, policy will be accessible, transparent and certain; and such a policy is likely to have been subject to community consultation and Ministerial scrutiny.

13 Notwithstanding the introduction of section 6(2)(d) in 1996, section 60 of the Act, which deals with the matters that a responsible authority must consider in relation to a permit application, has remained substantially unchanged. It currently provides, relevantly, that:

Before deciding on an application the responsible authority, if the circumstances appear to so require, may consider -

(g) any other strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council.

In Returned Services League of Australia (Victorian Branch) Inc, Glenroy Sub-branch v Moreland City Council[7] the Court of Appeal of the Supreme Court of Victoria made it clear that, where the circumstances appear to require, the tribunal must consider such matters. Whether or not the circumstances so require will depend upon the nature of the application, the context and other relevant matters.

14 Although it will usually be desirable that planning policies and guidelines be included in planning schemes, a planning policy or guideline, adopted by a responsible authority but not forming part of the scheme, will still be a relevant consideration if the circumstances require. If there was any doubt about this proposition, it has been removed by the recent decision of the Court of Appeal in Whitehorse City Council v Golden Ridge Investments Pty Ltd.[8] Usually a policy will be "adopted" by a resolution of the responsible authority, which will be publicly minuted, but a policy will be adopted if it can be said that as a matter of fact it has been adopted.[9]

15 The weight to be given to an adopted policy will depend on the circumstances. One circumstance may be that the policy has not been included in the scheme as, generally speaking, greater weight should be given to policies included in a scheme. Another circumstance may be that the policy has not been subject to a detailed and fair public participation process, akin to that involved in making a planning scheme amendment. In some cases the policy may be outdated or have been overtaken by a policy in the scheme. Sometimes the policy may be simply unwise and, for that reason, deserve little weight. Of course, if a policy is inconsistent with the planning scheme it should not be given effect to.[10]

16 It will be a rare case where an "under the counter" policy will carry any weight. This type of policy is one which has not been made publicly available, let alone been subject to public scrutiny. Put simply, it will often be unfair to apply such a policy.

17 A responsible authority may seek to adopt a policy that is in conflict with a policy set out in the scheme. The adoption of such a policy carries the difficulty that a different policy, set out in the scheme, continues to apply. Such a conflict is clearly intended to be resolved by giving priority to the policy contained in the scheme.

18 Sometimes a responsible authority will put forward an amendment to its scheme to vary an existing policy. A typical example might be in relation to the site coverage of multi-unit developments. Pending the approval of that amendment, the responsible authority may seek to "adopt" and apply the proposed policy. The weight that should be ascribed to the proposed amendment must be assessed having regard to the principles articulated in Lyndale & Black Pty Ltd v MMBW[11]. For example, if the proposed amendment has received a strong supporting panel report, it may be influential. But if the proposed amendment has not been supported by a panel it will rarely carry much weight, as experience tells us that such an amendment is unlikely to be approved.

19 I am not persuaded that the circumstances in the present case could not require some fleeting consideration of the 1997 policy. Hence it is a relevant consideration. But it would be wrong to give the 1997 policy the weight which is to be accorded to the provisions of clause 22.09, which have largely superseded the 1997 policy. Further the prescriptive elements of the 1997 policy warrant very limited weight in the present case. For example, the side setback provision might be thought to be inapplicable to a sideage that faced other industrial uses. And the provision suggesting a landscaping strip of 9 metres adjacent to a main road might be thought to be inapplicable to a road such as Childs Road, which does not serve a primary arterial function. Indeed a 9 metre wide landscaping strip could be considered unfair and unnecessary in the light of the pattern of nearby industrial development. But these are matters for the responsible authority or, possibly, the tribunal in the event that a discretionary decision is subject to review.

[3] Chrapot Investments Pty Ltd v City of Knox (1984) 18 APA 421

[5] See the discussion of this issue in Australian Aluminium Shopfitters & Glazing Contractors Pty Ltd v City of Fitzroy (1982) 1 PABR 47.

[6] See VPP Practice Notes Writing Local Planning Policy and Incorporated and Reference Documents.

[9] Whitehorse City Council v Golden Ridge Investments Pty Ltd [2005] VSCA 198 at [54].

[10] Dawson v Shire of Bright (1989) 2 AATR 238; Visic v Greater Dandenong City Council [2005] VCAT 1714.

Stella v Whittlesea CC [2005] VCAT 1825

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Judgment (30 paragraphs)

Stella v Whittlesea CC [2005] VCAT 1825 (31 August 2005)

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