Stogdale v Stonnington City Council [2004] VSC 348

Supreme Court of Victoria|2004-09-15|Before: OSBORN J

Section 148 Victorian Civil and Administrative Tribunal Act 1998 - Planning appeal - Permit for refurbishment and illumination of tennis court subject to conditions - Planning Scheme Controls - Condition implementing policy as reflected in the relevant control - Condition valid.

By a decision of 31 May 2004 the Victorian Civil and Administrative Tribunal ("the Tribunal") directed that a permit be granted for such refurbishment including the proposed lighting system subject to a number of conditions.

One of these conditions was that the court must not be used between 9.30 p.m. and 7.30 a.m. The plaintiff contends that the Tribunal should have permitted use between 10.30 p.m. and 7.30 a.m. in accordance with the standard stipulated by way of performance requirement E6.3.2 of the Code of Practice - Private Tennis Court Development Revision 1 March 1999 ("the Code"). It is said the course followed by the Tribunal is vitiated by an error of law and that its decision is appellable pursuant to s148 of the Victorian Civil and Administrative Tribunal Act 1998.

In accordance with accepted practice the Tribunal has indicated that it will abide by this Court's decision. Somewhat more unusually Stonnington City Council has elected not to appear before the Court, presumably because it does not support the proposed condition. This situation has deprived the Court of the assistance which it would usually expect to receive from a responsible authority in an appeal of this kind.

Although it will be necessary to say more about the terms of the relevant controls, it was accepted by Mr Wren of counsel for the plaintiff that the plaintiff required a permit for the proposed tennis court lighting pursuant to two separate planning scheme controls.

First, the plaintiff's land is governed by a Heritage Overlay pursuant to cl.43.01 of the Stonnington Planning Scheme and a permit was required to construct a building and to construct or carry out works.[1]

In the present case the Tribunal's decision records that there was no dispute between the parties that "as the site is situated at the rear of the land there are no heritage concerns regarding the proposal."

Secondly, a permit was required by cl.52.21 which governs the construction, use and illumination of private tennis courts and has the following purpose:

"To ensure that tennis courts used in association with a dwelling are sited and constructed to minimise the effects of the development on nearby properties. To ensure that the use of tennis courts in association with a dwelling does not cause unreasonable disturbance to adjoining residents or adversely affect the residential amenity of adjoining areas."

The scope of the control is expressed as follows:

"This clause applies to any private tennis court which is used in association with a dwelling."

The permit requirement under the clause is as follows:

"A permit is not required to construct, use or illuminate a private tennis court if the performance requirements specified in the Code of Practice - Private Tennis Court Development March 1999 are met. A permit is required to construct, use or illuminate a private tennis court on land within: * An Urban Floodway Zone, an Environmental Significance Overlay, a Heritage Overlay, a Land Subject To Inundation Overlay, a Rural Floodway Overlay, a Significant Landscape Overlay. * A Vegetation Protection Overlay if any vegetation specified in a schedule to the overlay is to be removed, destroyed or lopped."

The second relevant permit requirement thus arises pursuant to cl. 52.21 because the land is within a Heritage Overlay.

The control is not without its peculiarities. First, the permit requirement does not by its terms impose a general requirement for a permit to construct, use or illuminate a private tennis court if the performance requirements specified in the code are not met. When the controls constituting the predecessor to cl.52.21 were first implemented in conjunction with the promulgation of the Code by Amendment S48 to the then State section of the Planning Scheme, it was an express purpose of the control to "provide consistent requirements of tennis courts in association with a dwelling". In turn the control expressly provided:

"7-7.4 Permit Required A permit is required to construct, use or illuminate a private tennis court if any of the performance requirements specified in the 'Code of Practice - Private Tennis Court Development August 1996' are not met."[2]

The equivalent provision in the current scheme requires a permit only with respect to land within a specified zone and specified overlays.

Surprisingly perhaps the circumstances in which the majority of private tennis courts might be expected to be constructed (including those used in conjunction with a detached dwelling and governed by a standard Residential 1 zone) will thus not fall within the permit requirement triggered by nominated controls. They will, however, have the benefit of a conditional exemption in the circumstances I will shortly specify.

The second peculiarity inherent in cl. 52.21 is that it does not make clear whether the exemption provided by the first paragraph of the permit requirement is intended to apply to the specific permit requirement imposed in the second paragraph by reference to a named zone and overlays. Before turning directly to this question it is necessary to address the general operation of the exemption.

Clause 31 of the Planning Scheme introduces a set of provisions pursuant to which land may be included in zones, within which uses may be as of right (not requiring a permit), or permissible (requiring a permit) or prohibited. The zone controls further incorporate development controls in specific circumstances. Thus cl.32.01-4 relevantly requires a permit for the construction of two or more dwellings on a lot in a Residential 1 zone. In this and other circumstances a permit might be required under the zone controls for the construction of a private tennis court used in association with a dwelling but for the exemption contained in cl.52.21. The exemption would remove the need for a permit pursuant to the zone controls if the performance requirements are met. The specific provision relating to private tennis courts overrides the general zone requirements.

Clause 41 of the Planning Scheme introduces a set of overlay controls by stating:

"If an overlay is shown on the planning scheme map, the provisions of the overlay apply in addition to the provisions of the zone and any other provision of this scheme."

Having regard to these words, the specific provisions of the exemption contained in cl.52.21 do not override the overlay controls. Moreover the overlay controls include the Heritage Overlay which expressly contemplates an application for a permit for construction of a tennis court may be made under it, in that it provides for an exemption from notice and review by cl.43.01-4.

Clause 51 introduces a set of particular provisions (which include cl.52.21 itself) as follows:

"The requirements of these particular provisions apply to the specified categories of use and development and other matters in addition to any provisions which apply due to any other provision of this scheme."

Although these words are not entirely free from difficulty when applied to an exemption, the better view is that the intention of the scheme is that all the particular provisions are to be applied cumulatively that is "in addition to any provisions which apply due to any other provision of this scheme". It follows that the exemption does not preclude requirements pursuant to other particular provisions. These include cl.54 which states:

"These provisions apply to an application to construct a building or construct or carry out works associated with one dwelling on a lot under the provisions of: * A Residential 1 Zone, a Residential 2 Zone, Mixed Use Zone or Township Zone. * A Heritage Overlay or Neighbourhood Character Overlay if the land is in a Residential 1 Zone, Residential 2 Zone, Mixed Use Zone or Township Zone."

The consequences of the exemption with respect to provisions of the scheme other than cl.52.21 itself accord generally with that of the precursor controls implemented by Amendment S48. Under these cl. 7-7.2 provided:

"... The provisions of this Clause prevail over any other requirements in regional or local sections of the planning scheme. This does not apply where the land is identified in the planning scheme as: * an area of heritage significance such as an urban conservation area and a permit is required to demolish or construct buildings or works; * an area which is subject to flooding such as a Stream and Floodway zone or Floodway Management zone and a permit is required to construct buildings or works; * an area of environmental significance (designated by overlay controls) and a permit is required to remove vegetation; * where site specific development controls apply."

This leads to the question of the relationship of the exemption to the permit requirement imposed by cl.52.21 itself. Is the requirement for a permit to construct, use or illuminate a private tennis court on land within the zone and overlays specified subject to the exemption, so that it only arises in the circumstances where there is non-compliance with the performance requirements of the Code?

Although the two paragraphs set out under the heading "permit requirement" are capable of being so read, they are also capable of being read as standing separately with no intent that the permit requirement be subject to the exemption. In my view the latter is the preferable construction.

* The stated purpose of the control discloses no intent to "provide consistent requirements for tennis courts in association with a dwelling" as did the precursor control implemented by Amendment S48.

* The effect of the exemption in the Urban Floodway Zone would be to totally exempt from permit requirement tennis court construction and use which complied with the performance requirements of the Code despite the potential of such construction and use to impact directly upon the achievement of the purposes of the zone by reason of issues not addressed in the Code.

* The application of the exemption would result in a situation where the environmental, heritage and safety sensitivities of land affected by the specified overlay controls and arising out of the use and illumination of a private tennis court might not be addressed because firstly, the relevant overlay controls primarily regulate development alone and secondly, the performance requirements of the Code are formulated by reference to a standard or average range of conditions only.

In my view the maker of the Planning Scheme cannot be taken to have intended these latter consequences.

The relevant principle was stated by Gobbo J in Majik Markets Pty Ltd v The City of Box Hill[3] citing Sydney City Council v Ke-Su Investments Pty Ltd & Ors No. 2[4] per McLellan CJ and quoting with approval Pearce's Statutory Interpretation in Australia:

"There are numerous cases that show that the courts approach the interpretation of legislation by taking into account the consequences of giving a particular meaning to an Act. If injustice, inconvenience or absurdity will result from adopting one interpretation rather than another, the courts, as could reasonably be expected, will follow the interpretation which avoids that of debility."

For the above reasons the requirement imposed pursuant to the second paragraph of the permit requirement set out in cl.52.21 by reference to the Urban Floodway Zone and specified overlays (including the Heritage Overlay) is imposed irrespective of whether the performance requirements specified in the Code are met.

I turn now to the decision of the Tribunal. Because, as I have said, it was common ground that the application did not give rise to heritage concerns, the dispute before the Tribunal turned on the proper application of cl.52.21. There was no issue as to the appropriateness of the grant of a permit under the Heritage Overlay itself.

The ultimate conclusion of the Tribunal was as follows:

"I have therefore concluded that illumination of the tennis court at 10 Landale Road should be permitted but that due to the amenity concerns raised by Council and the residents/objectors and the number of dwellings immediately adjacent to the tennis court, it would be unreasonable to allow the hours to extend until 10.30 p.m. at night. A condition of the permit will therefore provide that the court lights must not be used between 9.30 p.m. and 7.30 a.m."

The plaintiff contends that if no relevant heritage consideration arises and the proposal complies with the performance requirements stated in the Code with respect to hours of use, it was not open to the Tribunal to impose a further and more restrictive condition as to hours. In argument Mr Wren submitted that the Tribunal should have asked, why is the discretion being exercised? If the reason was because the land is subject to a Heritage Overlay then the Tribunal should next have asked what impact would the proposal have on the purposes of the Heritage Overlay? The true issue for the Tribunal was thus said to be assessment of what impact the proposal would have on the significance of the heritage place and not on residential amenity.

In support of this argument, Mr Wren relied upon the well accepted principle that a discretion cannot be exercised for a purpose other than that for which it is granted. There is no doubt as to the underlying validity of the principle.

There is, however, a threshold issue concerning the characterisation of the relevant decision which requires clarification. Section 61(1) of the Planning and Environment Act 1987 provides:

"(1) The responsible authority may decide - (a) to grant a permit; or (b) to grant a permit subject to conditions; or (c) to refuse to grant a permit on any ground it thinks fit."

In turn s.80 relevantly provides:

"80. Appeals against conditions on permits (1) An applicant for a permit may apply to the Tribunal for review of any condition in a permit which the responsible authority has issued or decided to grant the person ..."

"85. Determination of an appeal (1) After hearing an application for review, the Tribunal may - ... (e) direct that a permit must or must not contain any specified condition; ... "

The plaintiff's case was put by reference to the line of authority which constrains the purposes by reference to which a permit may be refused pursuant to specific provisions of the Planning Scheme despite the broad terms in which general considerations affecting such a decision are stated both in the Act and the Planning Scheme. This principle which has become known as the National Trust principle[5] was recently affirmed with respect to the current format of planning scheme by Morris J in Victorian National Parks Association Inc & Anor v Southern Grampians Shire Council & Ors[6]. Morris J concluded:

"The function of sections 60 and 84B of the Planning and Environment Act is precisely the same as clause 65 of each planning scheme in Victoria and, more significantly, is precisely the same as clause 5A of the Melbourne Metropolitan Planning Scheme at the time of the National Trust case. In my opinion, just as it was proper to have regard to the matters prescribed by clause 5A in the context of a control over the height of buildings, sections 60 and 84B must be applied in a particular application for permit, or a particular application for review, in the context of the discretion then being exercised. But the scope of relevant considerations in the exercise of a discretion under a planning scheme provision is to be ascertained by reference to the purpose for which the discretion has been conferred, not by reference to the broad words of clause 65 or sections 60 or 84B."[7]

The current appeal is, however, concerned with the question of whether a particular condition could properly be placed on the relevant permit. The relevant power of the responsible authority in this regard is stated in s.62(2) of the Act:

"The responsible authority may include any other condition that it thinks fit ..."

It can be seen that this power is stated in broad terms and it is the ambit of this power which governs the validity of the condition in issue.

The test of the validity of a planning permit condition is that which was propounded by Harris J in 271 William Street Pty Ltd v City of Melbourne[8], namely: is the condition reasonably capable of being related to the implementation of planning policy when the scope of such policy is ascertained from the relevant planning legislation and the relevant planning scheme? As Ashley J held in Crichton v Moorabbin[9] this test remains the test under the Planning and Environment Act 1987.

The principle relied on by the plaintiff constrains the purposes by reference to which a permit may be refused pursuant to a particular control. The principle governing the imposition of conditions potentially amplifies the purpose relevant to the consequential power to impose conditions which arises upon a decision to grant a permit. It is the permissible purpose of the exercise of this consequential power which is here in issue.

In the 271 William Street case Harris J referred to and applied the test stated by the High Court in Allen Commercial Construction Pty Ltd v The Council of the Municipality of North Sydney[10] in the judgment of Walsh J at p.499 (with whom Barwick CJ, Menzies and Windeyer JJ agreed):

"In accordance with a well recognised rule, section 40(1) (ie of the North Sydney Planning Scheme Ordinance) ought to be understood ... not as giving an unlimited discretion as to the conditions which may be imposed, but as conferring a power to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised as ascertained from a consideration of the Scheme and of the Act under which it is made. This purpose may be conveniently described, in accordance with the expression used by Lord Jenkins in Fawcett Properties Ltd v Buckingham County Council (1961) AC 636 at p684, as being 'the implementation of planning policy', provided that it is borne in mind that it is from the Act and from any relevant provisions of the Ordinance, and not from some preconceived general notion of what constitutes planning, that the scope of planning policy is to be ascertained."

In 271 William Street itself the applicant sought to challenge a condition requiring the provision of a splay corner intended by the responsible authority to accommodate pedestrian traffic on the corner of William and Little Lonsdale Streets, Melbourne, in accordance with a Council policy seeking to facilitate pedestrian movement. The condition was held to be a valid implementation of planning policy although the requirement for the splay was not generated by the use and development forming the subject of the permit. The development simply provided an occasion for the incidental implementation of the policy.

Harris J analysed the Town and Country Planning Act 1961 and concluded at p.163:

"Thus, one subject matter which may be provided for in a planning scheme is the restriction on and the regulation of the development and the use of land in an area in which land or buildings are to be used for specified purposes. In my opinion, the language used in CL 4 and the nature of its subject matter lead to the conclusion that the restrictions and regulations which the planning scheme may contain, while they must be applied to particular properties within the specified areas, do not necessarily have to be related solely to the development or use of such particular properties. In my opinion, CL 4 enables restrictions and regulations to be included in a planning scheme which are designed to implement some particular planning objective for the whole of the area."

His Honour next observed that the City Council's then proposed planning scheme showed that it did intend to make specific provision for the policy within that scheme.

The decision thus endorsed the imposition of an urban design outcome affecting the area by way of a condition imposed upon particular development in pursuance of a policy concerning the area.

Likewise, in appropriate circumstances, a condition imposed on a particular use may be said to implement planning policy in the sense referred to in 271 William Street. Thus in Crichton a condition directed to ensuring the phasing out of a non-conforming use was held to be valid.

The question of whether a condition is reasonably capable of being related to the implementation of planning policy in the relevant sense will remain a question of fact in each case.

In the present case the planning policy which cl.52.21 itself implements clearly extends to the considerations upon which the relevant condition is founded.

This is in part because each of the controls nominated in the permit requirement (including the Heritage Overlay) operates as a trigger requiring a permit pursuant to 52.21. The effect of this trigger is to impose a permit requirement with respect to use and illumination of a private tennis court whereas the overlay controls themselves, including the Heritage Overlay, relevantly regulate construction matters only. The purpose of the relevant permit control is, however, not limited by reference to heritage considerations or the other nominated controls. The permit control is contained within a set of provisions having a broader purpose. This broader purpose is reflected in the statement of purpose within cl.52.21 relating to the effects of the development on nearby properties, and the effect of the use on adjoining residents and the residential amenity of adjoining areas.

Furthermore, the decision guidelines under cl.52.21 state as follows:

"Before deciding on an application under this clause, in addition to the decision guidelines in Clause 65, the responsible authority must consider the relevant objectives and considerations specified in the Code of Practice - Private Tennis Court Development March 1999."

The relevant objectives and considerations relating to hours of use are set out under element 6.

"E6.1 Considerations The construction and use of a tennis court must take into account the need to respect the privacy of adjoining residents, particularly in terms of overlooking and noise. Matters to be considered include: * the height of the tennis court surface; * the provision of screening; * the hours of play; and * the use of mechanical equipment. E 6.2 Objectives To ensure that the tennis court and its use do not detract significantly from the amenity of the surrounding area and do not cause unreasonable detriment to privacy. To limit views into neighbouring secluded private open spaces and habitable rooms."

It is to be observed that it is to these considerations and objectives that the decision maker is directed by the decision guidelines in cl.52.21 and not to the performance requirements.

It is apparent that the Tribunal imposed the condition now under challenge for purposes embraced by the statement of purposes within 52.21 and precisely for the purposes elaborated in the relevant considerations and objectives of the Code namely to ensure that use of the tennis court does not detract significantly from the amenity of the surrounding area and does not cause an unreasonable detriment to privacy. It follows that the condition was imposed for a purpose contemplated by cl.52.21 and directed towards the implementation of planning policy as ascertainable from the very terms of 52.21 itself.

In the alternative to its primary submission it was ultimately submitted on behalf of the plaintiff that it was not open to the Tribunal to form the view which it did of the facts of the case and in particular to conclude that such a condition was appropriate to achieve the purpose of the relevant control.

There is no basis for such a conclusion. It is apparent from its decision that the Tribunal carefully addressed and considered the particular context of the tennis court in issue which has some specific sensitivities because of adjoining multi unit residential development. The Code does not require that the performance requirements be deemed to achieve the objectives of the Code in all circumstances. Rather, the performance requirements take effect pursuant to the planning scheme to relieve an applicant in some circumstances from the necessity of obtaining a permit. In the circumstances of the specific controls which are specified as triggering a permit requirement however they will not have this effect.

It follows that the condition in issue cannot be shown to be invalid by reference to the accepted test for the validity of a planning condition. More particularly the condition directly implements the policy reflected in the stated purpose of the provisions containing the permit control and the objectives identified in the Code referred to in the decision guidelines under the permit control. Likewise, it cannot be shown that the Tribunal's conclusion as to the appropriateness of the condition was not open to it on the facts of the case. Accordingly the appeal must be dismissed.

[1] Section 3 of the Planning and Environment Act 1987 defines "building" to include "(a) a structure and part of a building or structure; and (b) fences, walls, out-buildings, service installations and other appurtenances of a building ... "

[2] The relevant provisions are conveniently set out and discussed in the decision of Tribunal member A.P. Liston in Kevin McNamara Pty Ltd v Shire of Mornington Peninsular and ors (1997) 18 AATR 175 at 178-9.

[5] National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VicRp 60; [1976] VR 592

At a glance

Court

Decision date

Before

Source

Judgment (86 paragraphs)

Parties

Cases Cited (1)