S. 87(1)(b) Planning and Environment Act 1987.

City of Springvale v Kydas & Ors [1990] 4 AATR 317.

MMBW v R E Leamon Pty Ltd (1980) VPA 9.

Frankston CC v Kaybea Pty Ltd [2000] VCAT 1149.

RESPONSIBLE AUTHORITY: Stonnington City Council

RESPONSIBLE AUTHORITY: Stonnington City Council

MEDIUM NEUTRAL CITATION: [2003] VCAT 84

Lot 1 on Plan of Subdivision No. 324217E being the land in Certificate of Title Volume 8426 Folio 453.

1. Request proceedings P01876/2002 is acceded to and Permit No. 0720/97 in relation to 14 Arthur Street, South Yarra and issued by the Responsible Authority is amended to substitute the following condition in place of condition 1 as it appeared in that permit as first issued so that the new condition 1 is to read:-

"1. On or before 19 February 2003 the Requestor must lodge with the Responsible Authority amended plans. When approved the plans will be endorsed under this permit. The plans must be generally in accordance with the plans of Karl Degering & Associates, dated December 98 and numbered WD01-C, WD02-E, WD03-E, WDO4-E, WD05-D, WDO6-C, WDO7-D, WDO8-D, WDO9-D, WD10-D and WD11-C but modified to show the height of the screen to the south and west sides of the south facing balcony of Unit 2 to be 1700mm above floor level."

2. The Responsible Authority is directed to amend the said permit pursuant to s 91(1) of the Planning and Environment Act 1987 in accordance with the above order.

3. There is no order as to costs in relation to the request proceedings under s 87 of the Planning and Environment Act 1987.

4. By consent, leave is granted to the Responsible Authority to withdraw enforcement order application P001189/2002 and such application is withdrawn accordingly but with an order, also by consent, that the Respondents to that application pay $2000.00 costs to the Responsible Authority in relation to that application.

Mr Nick Crawford, solicitor of the firm of Maddocks, solicitors, appeared for the Responsible Authority.

Mr Graeme Peake, barrister, appeared on the instructions of his clients for the Respondents in the enforcement order application and the Requestors in the s 87 request.

Application under s.114 of the Planning and Environment Act 1987 (PE Act) for an enforcement order.

Request under s.87 PE Act for amendment of a permit.

Contravention of condition 2 of planning permit 720/97 issued on the 23 March 1998 allowing two double storey attached houses which condition provided that the development shown on the endorsed plans was not to be amended without the consent of the Responsible Authority.

To amend condition 1 of the said planning permit 720/97 and its endorsed plans.

Residential 1 Zone under the Stonnington Planning Scheme.

1. This case was before me on the 6 August 2002, and again on the 5 February 2003. At the initial hearing certain difficulties were encountered in relation to the request proceedings, both in relation to the grounds to be relied upon under s 87(1) and because it appeared that the permit, sought to be amended, had, in fact, expired. There appeared to be no purpose in seeking to amend an already dead permit. The two applications were adjourned to give an opportunity to Mr Peake's clients to make a new permit application. I noted, in the remarks attached to the document dated 14 August 2002, and issued subsequent to the earlier hearing, that I had examined the planning merits of the proposed amendment and found them to be satisfactory. It was really only procedural and jurisdictional questions that created problems in August.

2. After that first hearing it was found that the permit sought to be amended, had not expired after all. In fact, it was still current at the time of the hearing on the 5 February 2003, and will remain current until the 23 March 2003. Its life has been maintained due to an extension that had been granted by the Responsible Authority, but which was overlooked at the time of the hearing in August 2002.

3. That aspect being resolved, the only outstanding problem is in relation to a ground being established under s 87(1) PE Act.

4. As mentioned in the interim determination, the two grounds sought to be relied upon are a substantial failure to comply with the conditions of a permit under s 87(1)(b) and material mistake in relation to the grant of a permit which the ground in s 87(1)(c).

5. This application for amendment arises because the development has been constructed, but not fully in accordance with the permit and endorsed plans. An amendment is sought to change the permit to accord with what has been built. The suggested ground is that there has been a failure to comply with the conditions of the permit which required construction to be in accordance with the endorsed plans.

6. As I have said on the 6 August 2002, I am loath, as I always have been, to uphold a request for amendment based on this ground in these sorts of circumstances. It is not appropriate, in my opinion, for someone to seek relief under s 87(1) in the form of an amendment to a permit based on the ground that they themselves have substantially failed to comply with the conditions of their permit. Section 87 PE Act, and the subsequent associated provisions, are less restricted in their terms and scope than their forerunner in relation to the revocation and modification of permits found in s 24 of the Town and Country Planning Act 1961. Although more liberal, s 87 and the suite of provisions of which is a part, nevertheless contain quite a number of restrictions and are certainly not designed to provide "an open slather" in relation to amendment of permits. It seems to me both incongruous and wrong, that a requestor may deliberately or negligently, fail to comply with a permit and its conditions, and then rely on that very wrong doing as the basis for a concession, in the form of an amendment to the permit, being granted under s 87(1)(b).

7. Section 87(1)(b) is certainly one of the grounds under s 87. Nevertheless, its proper application is, in my opinion, fairly limited. It might more generally be appropriate in relation to an application to cancel a permit, rather than in relation to a requestor's proceeding for an amendment. I think the sort of case it is meant to cover can be seen in the City of Springvale v Kydas & Ors [1990] 4 AATR 317. That was a decision that Ms A H Smith, who was then a member of the Administrative Appeals Tribunal (forerunner of this Tribunal in relation to planning matters). She was dealing with an application by a Responsible Authority to cancel a permit. The permit had been granted 20 years before. It allowed use of the land as an amusement parlour. The grounds relied upon were substantial failure to comply with conditions and material change of circumstances since the grant of the permit. The evidence disclosed that the premises were habitually open outside the hours allowed, and in contravention of the condition imposing limitation on hours of operation. It also showed illegal use of the premises as a gaming house, for illegal drinking of alcohol, illegal possession and use of drugs and that it was a venue frequently used (inside and outside the premises) by drunken and/or unruly people including a particular gang who created noise and disturbance nuisances. A reading of the reasons given in that case shows that the actual ground relied upon, in that instance, was the ground of material change in circumstances since the grant of the permit. Nevertheless, I think an amusement parlour case where there was substantial failure to comply with conditions as to hours and the conduct of the premises, including conditions prohibiting use of the premises for such activities as gaming, prostitution, and/or illegal possession, use or sale of drugs and alcohol, would be quite a good example where s 87(1) could be relied upon as a ground for cancellation. That is a very different situation to allowing a requestor to gain a benefit from that party's own wrong doing, and, indeed, illegal behaviour. See also MMBW v R.E. Leamon Pty Ltd (1980) 17 VPA 9 and Frankston CC v Kaybea Pty Ltd [2000] VCAT 1149.

8. I indicated in August that I was not at all minded to grant the relief sought on that ground.

9. In fact the alternative ground is now relied upon, that is a material mistake in relation to the grant of a permit. Condition 1(i) of the permit as issued requires modification of plans to show that the height of the rear unit (Unit 2) is not to exceed the height of Unit 3 at 12 Arthur Street at eave level. There is a difficulty about this. Neither Unit 2 of the project, nor Unit 3 at 12 Arthur Street, has eaves. The condition has been drafted on a basis of a mistake that there were eaves and that this condition is meaningful. It is, I think, a material mistake that has some relevance to the rectification now sought. I should say that all relevant and interested parties consent to the modification sought and I am satisfied, on my own part, that the modification is appropriate in planning terms. In those circumstances I will accede to the request and grant the amendment sought.

10. This resolves the problem that gave rise to the other proceeding before me, namely the application for an enforcement order. By consent I grant leave for the withdrawal of that application and it will be withdrawn accordingly with an order. Also, by consent, the respondents to the enforcement application are ordered to pay $2,000.00 to the Responsible Authority for its costs in relation to that application. There is no order for costs in relation to the request proceedings under s 87(1) PE Act.