3. This permit will expire if one of the following circumstances applies: * the development is not started within two years of the date of this permit, or * the development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

1. The Responsible Authority is directed pursuant to Section 85 (1) (b) (ii) of the Planning and Environment Act 1987 to issue a permit in accordance with Order A above.

Ms Sarah Porritt, barrister, appeared on the instructions of H Hayes, corporate solicitor to the City of Melbourne, for the responsible authority. She presented written and oral submissions.

Ms Tania Cincotta, solicitor of the firm Best Hooper, solicitors, appeared for the applicant. She presented written and oral submissions.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under Section 79 of the Planning and Environment Act 1987 for review of the failure of the Responsible Authority to grant a permit within the prescribed time.

Extensions to living room and bedroom of units 702 and 703 on Level 7 of an eight level building.

Business 2 Zone and subject to a Heritage Overlay (Schedule 2) and a Design and Development Overlay (Schedule 20) under the Melbourne Planning Scheme.

1. The issue in this case concerns a legal question. The responsible authority believes that the proposal is prohibited under the planning scheme. The representatives of the applicant, Mr Simon Stokes, believe it is not prohibited, and that a permit can be granted if the planning merits so indicate.
2. The case is somewhat unusual in as much as both sides agree that if a permit can be granted, it should be granted. There is no dispute about the planning merits of the proposal.
3. Perhaps the agreement of the parties as to the planning merits is not quite so surprising when the limited nature of the proposal is understood.
4. Two minor additions to an existing eight level building are proposed.
5. The building is located on the northwestern corner of the intersection of Albert Street with Eades Street in East Melbourne. Albert Street runs east to west. The intersection is a "T" intersection or, one might say, an inverted "T". Eades Street runs north and south linking Albert Street to Victoria Parade. Its southern end terminates at the intersection with Albert Street. The extensive Fitzroy Gardens are located on the southern side of Albert Street.
6. The building in question is a modern one. It has been constructed pursuant to a permit granted by this Tribunal in its determination of The East Melbourne Group Inc v Melbourne CC[1]. That case was heard on the 4th and 5th of June 2003 with the written determination and reasons having been dated 11 June 2003.
7. Units 702 and 703, to which this case relates, are located on the seventh level. There is one level above. The proposal is to make minor extensions to units 702 and 703. Each of these units has an open-air balcony. In each case, it is proposed to partly enclose that open air space to reduce it and increase the indoor portion. Both increases in enclosed area are quite modest. It is obvious that these alterations would have only minor, indeed barely perceptible, effects on the amenity of the area or effect of the building on the locality generally and in relation to the Fitzroy Gardens in particular.
8. The top of the building steps back from Albert Street in accordance with a formula in the planning scheme. I will discuss that later. There was controversy about those particular provisions in relation to the 2003 case when the permit was granted. The Tribunal on that occasion, was constituted by Mr Michael McNamara, deputy president and Mr Des Eccles, member. Mr Eccles is an experienced town planner whereas Mr McNamara is a lawyer. Mr McNamara determined the legal controversy that arose in that case about the formula that I have mentioned.
9. It becomes relevant, for the purpose of the formula, that the building to the north of the one we are concerned with has a maximum height that is lower than the building that is the subject matter of this case. That northern building is located on the southwestern corner of the intersection of Eades Street with Victoria Parade.
10. The land is, of course, subject to the Melbourne Planning Scheme. It is located in a business zone and subject to a heritage overlay. Although planning permission is required to alter buildings subject to such overlay provisions, neither the zone provisions nor the heritage overlay provisions give rise to the controversy in this case.
11. The argument arises in relation to the design and development overlay that applies and schedule 20 thereof. The contention in this case arises in relation to the proper interpretation of clause 3 of schedule 20 to the design and development overlay. That clause is the last provision in the schedule. The schedule has to be read together with the primary design and development overlay provisions that appear in clause 43.02 of the planning scheme.
12. This turns out to be a complex and difficult exercise, and one likely to cause confusion. It is necessary to set out clearly the rather complex statutory landscape in which the key provision appears, and to go through the relevant provisions step by step.
13. That said it was agreed on all hands, in the course of the hearing, that these provisions are confusing and poorly drafted. I agree that this is so. It would be a good thing from the point of view of the responsible authority, this applicant, other parties who may have to consider the provisions and the public generally (to say nothing of the Tribunal when called upon to adjudicate) if the provisions could be rewritten in clearer language. That would be more likely to give effect to the intended meaning of the provisions, and would let everyone know, with suitable clarity, where they stand.
14. I think the uncertainty is such that honest opinions by capable readers, including capable lawyers, can give rise to differing views as to what the effect of the provisions is. It is not surprising, in these circumstances, that different views have emerged.
15. The responsible authority, although it sees no harm in the actual proposal and would grant permission if it could, has nevertheless felt obliged to seek to maintain what it considers the correct interpretation of the relevant provisions.
16. In the course of submissions being made during the hearing, I was referred to two previous decisions of the Tribunal. The first of them is the case of the East Melbourne Group Inc v Melbourne City Council that I have already referred to and which gave rise to the grant of the permit for the current building. The other is a decision of mine in Acabus Fund Management Ltd v Bayside CC[2]. I have considered the passages in the reasons in those cases that were cited to me. They are of some, but limited, assistance. Neither deals with clause 3 of schedule 20 in quite the way that it applies in the present case.
17. The design and development overlay provisions in clause 43.02 of the planning scheme apply, as part of the Victoria Planning Provisions to all planning schemes in Victoria. However, those provisions contemplate there being specific provisions for particular municipalities, and particular parts of municipalities to be provided for in schedules to the overlay provisions.
18. Thus clause 43.02 applies throughout Victoria but schedule 20 thereto, in the Melbourne Planning Scheme, applies only to Melbourne, and then only to a specified part thereof. It is in fact headed "Victoria Parade and Albert Street Area".
19. Apart from general purposes applicable to many zone and overlay provisions the purpose of a design and development overlay is to identify areas which are affected by specific requirements relating to the design and built form of new development. The objectives of the overlay, found in clause 42.03-1, refer to the design objectives to be achieved for an area as specified in the schedule.
20. The design objectives for schedule 20 are found in its clause 1. They read:
    • To minimise the visual impact of buildings on the Fitzroy Gardens and to preserve the amenity of the gardens.
    • To ensure that the enjoyment of the Fitzroy Gardens is not excessively diminished by overshadowing from any new building or works.
    • To ensure that any new development or redevelopment is compatible with the existing scale and character of adjoining buildings and the area.
    • To protect and enhance the appearance of Victoria Parade as a major boulevard.
21. Clause 43.02-2 of the overlay provisions deals with buildings and works. In doing so, it deals with permit requirements. Understanding these provisions calls for a degree of concentration. In the first place, a permit is required to construct a building although this does not apply if the schedule to the overlay specifically states that a permit is not required. Obviously, this means that a permit is required, unless specified otherwise.
22. Clause 43.02-2 goes on to provide that buildings must be constructed in accordance with any requirements in the schedule to the overlay which requirements may include various things including building setbacks and building height. It is building height that is relevant in the present case.
23. The last sentence under permit requirements in clause 43.02-1 reads:

A permit may be granted to construct a building or construct or carry out works which are not in accordance with any requirement in a schedule to this overlay unless the schedule specifies otherwise.

1. In fact schedule 20 does not specifically state that a permit is not required for the construction of a building. In the absence of such a statement, permission is required for the construction of a building. That includes part of a building and in turn, that includes these proposed extensions.
2. Any requirements in the schedule as to building height are not absolute or mandatory requirements. They must be observed save that they can be varied with a permit unless the schedule specifies otherwise. The question in the present case gets down to whether the provisions in the schedule do specify otherwise.
3. There is a point by the way as to what is meant by the word "specifies" in this context. Specify does not mean state generally in broad but uncertain terms. On the contrary, it means to state explicitly, definitely, precisely, in detail and with particularity.
4. It has to be stated in such a fashion but does it have to be stated in explicit words, or is it sufficient if it is stated with precision, but means other than words? Other possibilities might be by means of a formula, a drawing or a plan. However, can a schedule be said to specify something if it is not stated in express words, but is stated by necessary implication? Must it be explicit, or can it be implicit?
5. Most English words have several meanings, and some of them have many meanings. The meaning or meanings intended in a particular usage normally has to be interpreted in terms of the context in which it is used and, if it can be discerned, its purpose or intended meaning.
6. Here "specifies" means that it must be stated clearly and with precision, not vaguely or in general or uncertain terms. However, I consider that, providing the usage is sufficiently definite and precise an implicit statement may serve as well as an explicit one. An implication that is necessary, definite and precise can be sufficient although one that is ambiguous or uncertain would not suffice.
7. It is necessary then to look to the terms of schedule 20 to see whether a building height requirement is specified. It is also necessary to read the schedule to see if it contains any mandatory prohibitions. If it specifies a Maximum Building Height, that building height can be varied by permit (subject of course to the planning merits of the particular proposal) unless the schedule specifies that no such permit can be granted.
8. I have already referred to the design objectives in clause 1 of the schedule. That indicates what the schedule is intended to achieve. Those objectives centre on the Fitzroy Gardens, but also refer to the protection and enhancement of the appearance of Victoria Parade.
9. The second clause of schedule 20 purports to deal with "Requirements". Under that subheading there is clause 2.1 containing three paragraphs and a table to schedule 20.
10. The "Requirements" in clause 2.1 appear under a subheading reading "Building Height and Setback". As I am concerned with building height in this case, and not setback, I will retain the words that relate to building height and omit those that are limited only to setback distances.
11. The terms of clause 2.1 in relation to building height requirements read as follows:

Buildings or works should not exceed the maximum building height...specified in the table to this schedule.

An application to exceed the maximum building height...must be accompanied by a site analysis plan and a written urban context report documenting how the development will achieve the specific design objectives and outcomes of this schedule.[3]

The height of a building or works is the height of its highest point above the permanent footpath at the centre of the site frontage. If there is no footpath, the natural surface level at the centre of the site frontage is the base level.

1. There is something I find a little odd about the wording of the foregoing quotation. It purports to relate to requirements as to building height, but a "Requirement" is normally something which must be done or satisfied. In this case, the wording is not the language of a requirement as it admits of some option. The fourth word in the first line is "should", not "must". A requirement would say that something "must" be. "Should" admits of something other than a requirement.
2. The second paragraph of the quotation speaks of an application to exceed the maximum height. That certainly contemplates the maximum height being exceeded and not that it "must" be complied with.
3. The relevant Maximum Building Height is to be found in the table to schedule 20. This table contains specifications in relation to three different areas. The relevant one for present purposes is area 43. The specifications in relation to area 43 are supposed to achieve an outcome in the following terms:

New buildings or works do not impact upon the visual attractiveness of Fitzroy Gardens or create additional overshadowing on the gardens between 11.00 am and 2.00 pm on 22 March or 22 September.

1. For some of the other areas the maximum height is expressed in terms that are simple dimension. For area 11, the maximum building height is 9 metres whereas for area 38 the maximum is 30 metres. However, for area 43 the maximum building height is not expressed in metres, but in terms of a fairly complicated formula. The formula is set down in written narrative form rather than algebraic symbols. For area 43 the maximum building height is as follows:

No buildings may be constructed that protrude above a plane inclined at an angle of 22 degrees from a point that is:

• On the southern alignment of Albert Street.
• At a permanent footpath level, or if there is no footpath, at natural surface level.
• Directly opposite the centre of the site frontage.

1. To apply this formula it is necessary to establish the point from which the 22 degree angle is to be derived. That point, which I will call point X, is on the southern edge of Albert Street (I take that to be the street reserve rather than the carriageway pavement) opposite the centre point of the frontage or abutment of the review site to Albert Street. I note that area 43 encompasses properties along the northern side of Albert Street, including the review site but occupies only the southern half of the block bounded by Albert Street to the south and Victoria Parade to the north.
2. From point X the building height is defined by the sloping angle at 22 degrees from that point. It is tempting to call this the 22 degree line, although strictly it is a plane; in other words, a two dimensional area rising at an angle of 22 degrees from south to north from point X.
3. The 22 degree plan specifies the building height limit. The further to the north, and away from the Fitzroy Gardens, the higher the building can be without infringing that limit. That is because this inclined plane rises from south to north.
4. That then is the required height limit although, it will be recalled, that limit can be exceeded if permission is given provided that, in terms of the last sentence of the permit requirement provisions under clause 43.02-2, the schedule specifies otherwise.
5. Thus a building, including these proposed minor extensions, requires planning permission (a planning permit) to construct the building under clause 43.02-2 and, if the maximum height limit is to be exceeded, then further permission is needed under clause 2.1 of the schedule. Clause 2.1 contemplates the limit being exceeded in some circumstances. It does not explicitly say that a permit is needed, but it does say, in its second paragraph, that an application to exceed that limit requires a site analysis plan and a report. That implies, not only that the limit can be exceeded but that it is to be exceeded, if at all, on the basis of a successful application which requires certain supporting documents.
6. The minor extensions contemplated in this case protrude beyond the 22 degree plane to a minor extent. As such, they would exceed the maximum building height requirement. On the basis of all that I have said so far that can be legally accomplished by the grant of permission pursuant to clause 43.02-2 for the building and under clause 2.1 of the schedule to exceed the limit in the table to clause 20.
7. This brings me to the heart of the dispute, which turns on the proper understanding of clause 3 of the schedule. This is a single sentence, but it is, at least initially, one that is difficult to understand. Its importance is in relation to the Fitzroy Gardens to the south of area 43 and thus to the south of the review site. However, it refers to Victoria Parade to the north of the site and to buildings fronting Victoria Parade. There appears to be something back-to-front about the formulation although it may make sense when read carefully.
8. Clause 3 of schedule 20 appears under a heading that reads "Decision Guidelines". The text reads:

In Area 43, before deciding on an application, the responsible authority must be satisfied that the building or works would no protrude above a plane elevated from the same point to the highest southern parapet of a building fronting Victoria Parade to the north of the site.

1. This formulation involves an inclined plane springing from the same point X on the southern side of Albert Street. However, this plan will not necessarily rise at an angle of 22 degrees from that point. In fact, clause 3 will have no application if it happens to be that the angle was 22 degrees from point X, as that would mean that its formula gave the same result as the 22-degree formula in the table.
2. In fact, that clause 3 plane may be at a greater angle of incline, or a lesser angle of incline, than 22 degrees. It all depends, not on any buildings on the review site, but on a building to the north of the review site fronting Victoria Parade. If there was a single storey building with a height of 4 metres on the northern site the clause 3 plane would be at a lesser angle than 22 degrees. If, on the hand, there was a skyscraper on that northern site the angle of the plane rising from point X would considerably exceed 22 degrees.
3. What then is the effect of clause 3? I am offered two interpretations, both of which appear to have some logical merit, up to a point; but neither of which sit altogether happily with the wording employed.
4. The version adopted by the responsible authority is that clause 3 imposes a mandatory limit that can apply in some circumstances above the 22-degree limit. It contends that the 22-degree plane imposes what might be described as the standard maximum height limit. If the highest southern parapet of the building to the north is low so that the clause 3 plane is at an angle of less than 22 degrees, then the 22-degree plane specifies the height limit for all points on the review site. If, on the other hand, there is a high building on the northern site so that the angle of the clause 3 plane between point X and the point of the highest parapet of the northern building is greater than 22 degrees, then it is the clause 3 plane that prescribes an absolute maximum or mandatory maximum building height for the site which cannot be exceeded. No permission can be granted to exceed that plane, or so it is contended. If the northern building is high enough, the angle might be 35 degrees, 50 degrees, or more. Whatever it is, according to the responsible authority, permission can be given pursuant to an application of the sort referred to in clause 2.1 to exceed the 22-degree plane as long as the mandatory maximum is not exceeded.
5. There is some appeal in this argument. It seems to make sense. It means that the new building on the review site, or an extension of it, can exceed the 22 degree plane, but only if there is, and to the extent that there is, some other higher building forming a backdrop to it when looked at from the point X viewpoint.
6. In other words, the new building or extension cannot create a new skyline or cut the existing skyline formed by the higher building to the rear. Such a notion of not intruding above a ridgeline, a tree line or a skyline formed by a backdrop is a familiar enough concept in planning and has been used as a guideline in other cases.
7. Although this explanation might make sense, is it what clause 3 actually says? The applicant contends no. The submission for Mr Stokes is that nothing in schedule 20 imposes a mandatory limit that cannot be exceeded with permission and that there is nothing in schedule 20 that specifies, in terms of the last paragraph of the permit requirement provisions in clause 43.02-1, that a permit cannot be given to vary the height requirements of schedule 20.
8. It is true that clause 3 of schedule 20 contains the word "must". There is something that is mandatory, but it is not the height limit. On the contrary, it is a state of mind that the responsible authority must obtain before deciding on an application. The responsible authority must be satisfied about something. It must be satisfied, before deciding on an application, that the building will not protrude above the clause 3 plane.
9. In the present case the building to the north is lower than the one on the review site so the clause 3 plane is lower than the 22 degree plane. That is the basis on which the responsible authority says that the proposal is prohibited, although the protrusion is minor.
10. The responsible authority has to be satisfied that the building would not protrude above the clause 3 plane before it decides on the application. In this case, the responsible authority will have no difficulty in deciding that these minor extensions do protrude beyond the clause 3 planes because that plane is lower than the 22-degree plane. In fact the protrusions would be, to a minor extent, beyond the 22-degree plane.
11. What is the responsible authority to do having satisfied itself on that point? Does it infer that clause 3 is meant to prohibit the proposal, or does it consider the application on its merits having brought itself to appreciate that the proposal will not be within the visual lee, so to speak, of a higher building with a higher skyline behind it? Is clause 3 really intended to require the responsible authority to take into consideration, as a guideline or relevant consideration, this factor of intruding beyond a backdrop building whilst not prohibiting that from happening? After all, there might be circumstances where exceeding the clause 3 plane might be innocuous from a planning point of view, or more particularly from a planning point of view in relation to the Fitzroy Gardens. There might be a protrusion that is so small as to be insignificant or so located as to be inconspicuous, or both. As a matter of fact this present case is an example where it is agreed on all sides that the proposed protrusion is in fact insignificant and should be allowed if that option is open.
12. If there is a mandatory prohibition, then the proposal is prohibited, even if the protrusion is minor, but if clause 3 imposes a guideline to guide discretion rather than a mandatory limit, then the fact that the protrusion is so minor becomes relevant, indeed important.
13. It is a principle of statutory interpretation that effect should be given to words in the statutory provision if that is possible, and that they should be interpreted in accordance with the purpose of the provision, where that can be discerned. While it is true that the responsible authority's interpretation of clause 3 imposing a mandatory height limit does give effect to the words and might be said to be consistent with their purpose, the same can be said of the alternative interpretation namely that clause 3 does not impose a mandatory limit but provides a guideline to inform decision-making.
14. There are several important considerations in favour of the interpretation advocated by the applicant, even if that interpretation is not a perfect fit at all points. One of these is the heading of clause 3. It reads: "Decision Guidelines". That is what clause 3 purports to be, rather than a mandatory limitation. Such headings are part of the instrument and can therefore be taken into account in its interpretation. Section 36 (1) of the Interpretation of Legislation Act provides as much.
15. Furthermore, although clause 3 contains the mandatory word "must" it does not use it in relation to height limit, but rather as to the state of mind that must be attained by the responsible authority.
16. The language used is by no means in the form normally adopted where a mandatory limit is imposed or, for that matter, where it is intended to specify that permission cannot be granted to exceed a requirement.
17. Ms Cincotta, on behalf of the applicant, referred to other schedules to the design and development overlay in the Melbourne Planning Scheme which contain the more usual form of words. For example, bearing in mind that clause 43.02-2 says that a permit can be granted for a building that does not accord with the requirements "unless the schedule specifies otherwise", schedule 2 in its second clause specifies, "a permit cannot be granted to vary this requirement". That is a perfectly clear and sensible way of saying that the particular requirement is mandatory and permission to vary it cannot be given.
18. A similar example occurs in schedule 15 where its clause 2 contains a sentence that reads:

A permit cannot be granted to vary the Maximum Building Height specified in Table 1 to this schedule.

1. It is contended for the applicant, that this is how it should be done and how it is done.
2. On the other hand, it is pointed out on behalf of the applicant, that other schedules lack that prohibition but are worded in terms similar to those that appear in schedule 20. In relation to building height clause 2.1 of schedule 6 provides:

Buildings or works should not exceed the Maximum Building Height specified in the Table to this schedule.

That clause goes on in somewhat similar terms to schedule 20 to talk about an application to exceed the Maximum Building Height that must demonstrate how the development will continue to achieve the design objectives and built form outcomes of the schedule and any local planning policy requirements.

1. Clause 2.1 of schedule 9 in relation to building heights similarly provides that buildings should not exceed the Maximum Building Height specified in the table of the schedule. It then goes on to talk of applications to exceed the Maximum Building Height specifying what must accompany such an application.
2. These comparisons with the form of words used in other schedules are not always conclusive, notwithstanding that they may be relevant and carry some weight. Schedules are not always drafted at the same time or in the same drafting style, one with another. Nevertheless, I think these references to other schedules do demonstrate a clearer and preferable way of saying that it is intended to deny the power to grant permission to exceed requirements.
3. I think the argument of the responsible authority in relation to the interpretation of clause 3 relies on an implication rather than an express prohibition. Because of the interpretation I have applied to the word "specifies" I do not think that reliance on implication is excluded. However, I do not think that the implication of the responsible authority seeks to rely upon is a "necessary" implication. I think the alternative interpretation is open.
4. I have said that I do not think the words employed fit perfectly for either interpretation. Nevertheless, I think that advocated on behalf of the applicant is the preferable one, and I adopt it. If something different is intended it would be an advantage to everyone concerned if the real intention was expressed in clear, explicit and unambiguous terms.
5. In the meantime I accept that neither clause 3 nor schedule 20 specify that permission cannot be granted to exceed the height limit requirement for area 43 appearing in the table namely the formula involving the 22 degree plane. Permission can be given to exceed that limit. It is common ground that, in those circumstances, such permission should be given.
6. A suggested set of draft conditions was submitted by the responsible authority. There is no issue in relation to them and I have adopted them.

[1] [2003] VCAT 2051

[2] [2006] VCAT 1716

[3] I have already quoted the design objectives. The table to the schedule mentioned in the first paragraph of this quotation does specify some outcomes.