[2002] VCAT 997

1. The Responsible Authority is directed to amend Permit No. 0703/00 issued on 19 February 2001, to turn Condition 6 into Condition 6(a) and add the following Condition 6(b):

"6(b) The edges of the vehicular crossover shall be angled at 60o to the road reserve boundary to improve entry and exit conditions".

2. The Responsible Authority is directed to amend Permit No. 0703/00, issued on 19 February 2001, by adding the following condition 2(e) to Condition 2:

"2(e) a building setback of 5m (including the pergola and screen fence) from the Wattletree Road street frontage.

3. The Responsible Authority is directed to cancel Plans Nos. 7 of 8 and 8 of 8 endorsed to the above Permit by the Responsible Authority on 28 November 2001.

For the Applicant for s.87 Amendment/ Responsible Authority:

For the Interested Persons: Mrs Judith Hindle. As Ms Hindle is a lay person the Tribunal gave her leave pursuant to the Victorian Civil and Administrative Tribunal Act 1998, section 62, to represent the Interested Persons.

For the Respondents/Permit Holders: Mr Justin Hanney appeared for Mr and Mrs Rieter. As Mr Hanney is a lay person, the Tribunal gave him leave pursuant to the Victorian Civil and Administrative Tribunal Act 1998, section 62, to represent Messrs Reiter.

1. This was an application under section 87 of the Planning and Environment Act 1987 to amend Permit No. 0703/00 issued 19 February 2001, and plans numbered 7 of 8 and 8 of 8 endorsed to Planning Permit No. 0703/00 on 21 November 2001, so as to delete any building shown within 5 metres of the Wattletree Road frontage.

2. Following a VCAT hearing before Member Quirk on 16 September 1999 in Application for Review No. 1999/44341, the Responsible Authority was directed to issue a planning permit for the subdivision of 408 Wattletree Road, Malvern East into four lots provided that a s.173 Agreement was entered into, covering matters of building setbacks and tree retention.

3. On 28 October 1999, Planning Permit No. 0358/99 was issued in respect of 408 Wattletree Road, Malvern East, allowing:

Subdivision of land into four allotments in accordance with the endorsed plans and subject to the following conditions....

2. The owner of the land must enter into an agreement under Section 173 of the Act with the Responsible Authority to provide for the street frontage setbacks and retention of vegetation as shown on the plans which accompanied the application. All costs of preparing and executing the agreement shall be borne by the owner.

4. By Dealing No. W671182Q the Office of Titles registered a s.173 Agreement over the land situated at 408 Wattletree Road, East Malvern. The subject land comprises a part of No. 408. No. 408 Wattletree Road, East Malvern is the land referred to in Certificates of Title Volume 5869 Folio 752 and Volume 3820 Folio 996. Those titles are the parent title to the subsequently subdivided-off Lot 4 on Plan of Subdivision 421335U which is now contained within its own Certificate of Title Volume 10517 Folio 971 (and is known as 1C Glenbrook Avenue, Malvern East).

5. The s.173 Agreement is dated 3 March 2000 and was entered into between Stephen Sabatucci on behalf of Stonnington City Council and the directors of 92nd Vibration Pty Ltd (the developers of the subdivision), namely John Ross Hoggart and Michael Harari.

6. The introduction to the s.173 Agreement records:

On 28 October 1999 Council, at the direction of the Victorian Civil and Administrative Tribunal in Application No. 1999/44341, issued Planning Permit No. 0358/99 allowing the subject land to be subdivided into four lots in accordance with the plan endorsed under the Planning Permit. Condition 2 of the Planning Permit requires the owner to enter into this Agreement to provide for the matters set out in that condition. A copy of the Planning Permit is attached to this Agreement and marked "A".

7. On 28 October 1999 Council, at the direction of the Victorian Civil and Administrative Tribunal in Application No. 1999/44341, issued Planning Permit No. 0358/99 allowing the subject land to be subdivided into four lots in accordance with the plan endorsed under the planning permit. Condition 2 of the planning permit requires the owner to enter into this s.173 Agreement to provide for the matters set out in permit condition 2.

8. Pursuant to Clause 7 `Specific Covenants of Owner' the s.173 Agreement records that:

7.1 The owner must not build, construct or erect or cause or permit to be built, constructed or erected any building on the subject land or any part of the subject land, within the frontage setbacks shown on the endorsed plan; and

7.2 Any tree or vegetation shown on the endorsed plan as a tree or vegetation to be retained must not be destroyed, felled, lopped, ring-barked, uprooted or otherwise removed without the written consent of Council.

9. The Tribunal notes that Condition 2 on the permit directed to be issued by Member Quirk did not contain any latitude for a discretion in the Responsible Authority to give written consent to vary either of the two requirements as to building setbacks and vegetation retention. However, clauses 7.1 and 7.2 are different in respect of the consents expressed therein. Clause 7.1 is expressed in absolute terms, while Clause 7.2 permits discretion, even though the direction of Member Quirk is in absolute terms in respect of both matters.

10. A Plan of Subdivision showing building envelope setbacks and trees to be retained was included as part of the s.173 documentation lodged at the Titles Office and registered on title.

11. On or about 28 June 2000, the developer, 92nd Vibration Pty Ltd, lodged an application for planning permit with the Responsible Authority in respect of Lot 4 of that Plan of Subdivision, being No. 1C Glenbrook Avenue, Malvern East, seeking development of the site for a single storey dwelling in accordance with plans.

12. Plans stamped 7 August 2000 were publicly notified to neighbours pursuant to s.52 of the Planning and Environment Act 1987. Mrs Hindle has said that those 7 August 2000 advertised plans only show a partial retention of those trees required to be retained by the s.173 Agreement. On 2 September 2000 Mrs Hindle lodged an objection with the Responsible Authority alerting the Responsible Authority to the s.173 Tree Retention obligations and other obligations such as building setbacks. However, the last line of Mrs Hindle's fax did not come out of the fax machine properly. That line alerted the Responsible Authority to the Wattletree Road setback of five metres which needed to be complied with.

13. Having received Mrs Hindle's objection dated 2 September 2000, the Responsible Authority must have requested a different plan as to tree retention because a fresh plan appears on the Tribunal file stamped 17 November 2000 which shows the retention of most or all of the s.173 trees that relate to 1C or Lot 4 Glenbrook Avenue, Malvern East.

14. On 17 January 2001 a Notice of Decision issued in respect of that planning permit application for 1B and 1C (being Lots 3 and 4 Glenbrook Avenue, Malvern East). There being no objections to that Notice of Decision, a permit issued in the same terms on 19 February 2001. However, no plans were endorsed to that planning permit on the concurrent date.

15. The permit that subsequently issued after the above Notice of Decision was split between 1B and 1C Glenbrook Avenue, Malvern East. In other words, Planning Permit No. 0703/00 issued 19 February 2001 only relating to 1C Glenbrook Avenue, Malvern East, and permitted the development of the site for a single storey dwelling in accordance with the endorsed plans and subject to the following conditions. The conditions, inter alia required:

2. Before the use and/or development starts, plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must show:

a) the exterior treatment to a scale of at least 1:100 including details of all exterior decorations, materials, finishes and colours.

b) a building setback of 9m (including the portico) from the Glenbrook Avenue street frontage.

c) a list of all trees to be retained as part of the s.173 Agreement for Permit No. 0358/99.

d) Submission of a tree management plan to accord with Condition 10.

6. The vehicular crossings shall be constructed to Council's standard vehicular crossing specifications.

10. Prior to the commencement of any buildings and works the applicant shall submit a tree management plan prepared by a qualified arborist, in general accordance with the recommendations submitted by Arboricultural Consultant Dr Peter Yau (dated 3 May, 1999) for the trees on lot 1C Glenbrook Avenue, Malvern. The works required to protect root systems prior, during and following construction as detailed in the arboricultural report must be to the satisfaction of the Responsible Authority.

11. Any pruning of roots or overhanging branches of the above-mentioned trees is to be undertaken under the supervision of an arborist. In the event that the trees die as a result of the works they must be replaced with trees of an appropriate scale and species to the satisfaction of the Responsible Authority.

12. No existing trees shall be removed from the site without the prior written consent of the Responsible Authority.

13. Trees with a trunk diameter of 45cm or greater measured at 1.5m above ground level will require a tree work permit prior to pruning or removal. Please contact Council's Park Services on 9522 3363 if pruning or removal of a tree is required.

16. On 6 September 2001, Mr and Mrs Reiter bought 1 Glenbrook Avenue, Malvern East from the previous developers. On 12 September 2001, Mr Reiter's Arboricultural Consultant, Dr Peter Yau, wrote to Mr Reiter's Architect, Mr Frank Garubba, and set out an opinion in respect of five or six of the s.173 trees earmarked for retention in the s.173 Agreement. That opinion reads as follows:

Re: 1C Glenbrook Avenue Malvern East (Formerly 408 Wattletree Road)

I refer to our discussion with regard to the preservation value and tree management plan for the trees in the above property, as required by Planning Permit No. 0358/99 and Planning Permit No. 0703/00. I enclose herewith a copy of my previous report prepared on 27th May 1999 with relation to the preservation of two large trees in the property: a Liquidambar and a Pin Oak.

It appears to me that these two trees (and possibly the third tree, a Poplar) are not within our property known as 1C Glenbrook Avenue. Hence I would consider the planning permit restrictions might not be applicable to your situation.

In any case, I have inspected the trees in your property again this morning and would like to report their condition and my opinion as follows:

This tree is dead and therefore there is no value in its retention. Removal is recommended.

This tree is dead and therefore there is no value in its retention. Removal is recommended.

Tree No. 3 Queensland Box (Lophostemon conferta)

This evergreen tropical tree measures 400mm DBH, 5m canopy spread and 11m height. It appears to be in normal health condition with a dense thick canopy. However in its present context this tree has no amenity significance or scientific interest. Accordingly I cannot find any justification why there should be any compelling reason for preserving this tree. Hence I consider this tree to be dispensable.

Tree No. 4 Norfolk Island Hibiscus (Lagunaria patersonii)

This tree measures 300mm DBH, 4m canopy spread and 11m height. The tree canopy has been compressed between the two adjacent trees Nos. 3-5 and is accordingly lopsided. The tree trunk is hollow and decayed and is in poor condition. Therefore I would recommend that this tree to be removed.

This tree which normally is an evergreen tree is totally dead and therefore should be removed.

This tree measures 200mm DBH, 5m canopy spread and 7m height. The tree is totally lopsided to the southerly direction. Over 50% of the canopy is full of deadwood and the tree is in very poor condition. I recommend that this tree be removed.

This tree has suffered extensive dieback and has very few living parts in the canopy. It is in very poor condition and I recommend that this tree be removed.

Other vegetation on site are small shrubbery type vegetation that do not fall within planning protection guidelines imposed by the local Council.

17. Mrs Hindle alleges that tree No. 1 - Silver Birch was not one of the s.173 protected trees and that tree No. 7 - Box Elder (Acer negundo) was also not one of the s.173 protected trees and was in a different location to those the subject of the s.173 Agreement.

18. On 7 November 2001, Dr Peter Yau, Arboriculturalist writes again to Mr Reiter's Architect, Mr Frank Garubba and encloses a tree management plan for the preservation of only two trees out of eight that were earmarked for retention in the s.173 Agreement. The eighth tree that I refer to is the Liquid Amber which apparently straddles the title of 1C Glenbrook Avenue, with 1B Glenbrook Avenue. The s.173 Agreement shows seven trees clearly solely within 1C Glenbrook Avenue earmarked for retention plus the Liquid Amber.

19. That 7 November 2001 Tree Management Plan reads as follows:

Re: 1C Glenbrook Avenue Malvern East (Formerly 408 Wattletree Road)

1 refer to your request for a tree management plan for the preservation of two trees in the above development property, as required by Planning Permit No. 0358/99 and Planning Permit No. 0703/00.

The two trees that are to be covered by the management plan as you indicated are:

1 . Tree No. 1 (Liquidamber styraciflua) as described in my first report dated 27 May 1999. The tree has a trunk diameter DBH of 1m, about 22m tall. The tree canopy is balanced and well developed, with branches spreading evenly across the property. The tree is in excellent condition. It is a notable local landscape feature.

2. Tree No. 3 (Lophostemon conferta) as described in my second report dated 12 September 2001. This evergreen tropical tree measures 400mm DBH, 5m canopy spread and 11m height. It appears to be in normal health condition with a dense thick canopy.

The management plan for the long term preservation of the above two trees includes the following management activities:

* To avoid physical damage to tree trunk, branches and bark by impact, fire or tearing, an adequate protective fence around the trees shall be erected before and remain erected during construction. The fence ideally should be erected at a distance from the tree trunk equivalent to the tree canopy dripline for these two broad canopy trees. If however under difficult site circumstances (eg limited ground space) the protective fence should not be less than 3m away from the tree trunk base line. Any operator of tall machinery (eg mobile cranes or similar equipment) working in the vicinity should take special care not to cause collision damage to the tree branches overhead.

* There shall not be any soil level changes around the trees, especially within the trees' root zone. The tree's root zone is generally considered to be the area around the tree beneath the canopy. Root damage caused by soil excavation, soil level reduction, trenching or other earthworks shall not be allowed under any circumstances.

* Soil aeration changes caused by soil level increase, compaction or waterlogging shall not be allowed. Lack of soil oxygen will kill tree roots leading to tree mortality. Soil dumping, cut and fill and soil compacting, blockage of natural drainage patterns etc shall not be allowed.

* Soil water changes in either extreme of water deprivation or waterlogging that adversely affect tree health shall not be allowed. Site works that alter natural water flow, infiltration, retention or drainage should be avoided, otherwise monitoring and amendment devices will need to be installed and monitored regularly.

* Soil compaction that adversely affect the soil physical properties (eg porosity, aeration, water retention, soil strength etc) which in turn affect root growth and tree health shall not be allowed. Planks shall be placed over soil surfaces to reduce to compaction pressure of machinery tyres on soil surfaces.

* Spilling or dumping of building materials (eg lime, cement, concrete etc) or other chemicals (acids, petrol, oil, herbicides etc) in the tree root zone should not be allowed.

* Adequate inspection and enforcement of protection during construction must be provided.

The two trees covered under this management plan must be maintained by a qualified arborist for a period not less than twelve months after the completion of construction works:

* Any damaged and broken branches should be properly trimmed and pruned in accordance with tree pruning standards as per AS 4373-1996 "Pruning of amenity trees".

* Soft surfaces around root plate zones should be adequately mulched to provide for soil amelioration.

* The base areas surrounding the tree trunks shall not be sealed with impermeable paving materials that affect the root plate soil condition eg aeration and moisture content.

* A properly designed irrigation regime and drainage should be provided for the trees. Appropriate watering to the trees particularly throughout hot drought summer months must be carefully applied. Failure to comply will lead to premature wilting and defoliation.

* The trees if deemed necessary should be given appropriate dosage of fertilizers.

IT IS THE SITE MANAGER'S RESPONSIBILITY TO ENSURE THAT TREE PROTECTION MANAGEMENT PLAN BE ENFORCED WITH VIGOUR AND TO ENSURE THAT SITE BUILDING EMPLOYEES COMPLY WITH THE ABOVE MANAGEMENT REQUIREMENTS.

Please note minor changes to the Tree Management Plan include:

1. The Arborist is to be responsible for monitoring the Tree Management Plan.

2. The protective fence around the Liquid Amber is to be 5 metres from .......... (illegible).

20. Plans marked `Received 2 October 2001' showing elevations and a floor layout plan were lodged for endorsement, ostensibly on those dates. A further landscaping plan stamped `Received 13 November 2001' and ostensibly in accordance with the Lau recommendations was also lodged for endorsement ostensibly on its relevant date. The 2 October 2001 lodged plans show

(i) an intrusion of a portico into the nine metre setback from Glenbrook Avenue;

(ii) the intrusion of a pergola into the five metre setback from Wattletree Road; and

(iii) the intrusion of a 1800mm internal screen fence within both the nine metre Glenbrook and five metre Wattletree Road setbacks.

21. The size of the pergola is 3 metres by 15.4 metres in length and extends 3 metres into the Wattletree Road setback.

22. On 28 November 2001 on 8 of 8 sheets the Responsible Authority endorsed the elevations, floor layout, landscaping plan and tree management plan purportedly pursuant to Conditions 2 and 10 of Planning Permit No. 0703/00 issued 19 February 2001.

23. Those plans were endorsed notwithstanding the intrusion of the portico into the Glenbrook Avenue setback, the intrusion of the internal screen fence into the Glenbrook Avenue and Wattletree Road setbacks and the intrusion of the pergola into the Wattletree Road setback.

24. The endorsed plans also show the removal and replacement of five or six of the originally designated s.173 trees to be retained. This plan endorsement is the manner in which the Responsible Authority has indicated its written consent, pursuant to cl.7.2 of the s.173 Agreement. to the destruction of the trees/vegetation earmarked for retention in the s.173 Agreement.

25. On 3 December 2001 Mr Reiter organised the removal of the trees indicated for removal on the endorsed plan. When Mrs Hindle discovered the destruction, she rushed to Council to ascertain why the s.173 trees were not being protected.

26. The Council was disinterested in the trees, having issued endorsed plans showing their removal.

27. The Tribunal notes that this must have come as a shock to Mrs Hindle who was relying on her objection and the subsequently issued Permit No. 0703/00 Condition 2(c) to accord with the s.173 Agreement.

28. An earlier attempt had been made by Mr Reiter to destroy the s.173 trees, on Tuesday 11 September 2001. At that time the Council advised Mr Reiter that there was no written consent to his removal of the trees, although Mr Reiter alleges that he had verbal consent from a Mr Peter Murray of the City of Stonnington's Parks Services Department.

29. It was when Mrs Hindle queried Council's permission to remove the s.173 designated trees that the Council were alerted by her also to the issue of building a pergola and portico within the s.173 protected setbacks.

30. Therefore on 4 December 2001, being a day after all the trees were removed by Mr Reiter, Council sent the following letter to Mr Garubba (Mr Reiter's Architect):

1C GLENBROOK AVENUE, MALVERN EAST - PLANNING APPLICATION NO. 0703/00 FOR A DWELLING

I refer to the letter of Gilliam Menegas dated 28 November, 2001 which approved plans in respect of the above permit.

The plans provide for the construction of a pergola on the northern side of the building setback approximately 2m from the northern boundary. You are reminded that the Clause 7.1 of the Section 173 Agreement which encumbers the land no building can be constructed within the "frontage setback shown on the endorsed plan". The "frontage setback" provides for a 5m setback to Wattletree Road. The provision is absolute and does not allow Council to provide consent for a lesser setback.

You are advised that the construction of the pergola, whilst consistent with Planning Permit No. 0703/00, would be in breach of the Section 173 Agreement which encumbers the land. Council will seek to enforce any breach of the agreement. You should also be aware that any interested person may also seek to enforce the provisions of the agreement.

For further information on this matter please contact Gillian Menegas on 8920 3329.

31. Negotiations ensued whereby Council were trying to get Mr Reiter to submit amended plans for endorsement showing the deletion of the pergola.

32. That had not occurred by 7 March 2002 so the Responsible Authority issued this s.87 amendment in order to not waste time, bearing in mind the `as soon as practicable' requirement of s.89(3) of the Planning and Environment Act 1987.

33. Council seeks the following order which it amended on the day of the hearing to read:

The following sentence should be added as part (e) of Condition 2 of the permit.

(e) a building setback of 5m (including the pergola and screen fence) from the Wattletree Road street frontage.

34. It is noted that the Council did not also request cancellation of the endorsed plans No. 7 of 8 and 8 of 8 showing encroachments into the building envelope setbacks. This was not satisfactorily explained to the Tribunal by Council's solicitor.

LEGAL ISSUES FOR CONSIDERATION INCLUDING S.87 HURDLES

35. Mr Reiter submitted that the pergola did not constitute a `building' and was therefore a permissible encroachment into the building envelope setback.

36. Mr Reiter also maintained that the words `without the written consent' also applied to the building setbacks so that the Council had the power under cl.7.1 of the s.173 Agreement to permit building within the building envelope setbacks.

37. Although a major plank of Mrs Hindle's complaints was the Council's written consent to the removal of the s.173 trees that were earmarked for protection and retention, this was not Council's interest and the Tribunal explained to her that she would have to initiate her own proceedings and seek her own legal advice in respect of the tree retention issues.

38. The Tribunal agrees with the Responsible Authority that it cannot give its consent to building encroachments within the setbacks and that the pergola and the screen fence and the portico are all `buildings' within the definition of the Stonnington Planning Scheme cl.71 and s.3 of the Planning and Environment Act 1987 (which is the relevant definition section referred to in cl.71). The definition of `building' is purposefully wide and covers the structures, the subject of this dispute. It is the opinion of the Tribunal that the pergola, screen fence and portico are a `building' within the meaning of s.3 of the Planning and Environment Act 1987 which defines `building' as including:

(a) a structure and part of a building or a structure; and

39. The Tribunal is cognisant that the Responsible Authority is prohibited by s.61(4) of the Planning and Environment Act 1987, which came into operation on 13 December 2000 and therefore before it issued Permit No. 0703/00, to grant a permit inconsistent with the restriction contained in the s.173 Agreement.

40. The Tribunal is satisfied that the Responsible Authority issued this s.87 application as soon as practicable after it discovered its mistake. The Tribunal is satisfied that the mistake was solely made by the Council and it, responsibly, seeks to rectify its mistake by issuing a planning permit consistent with its s.173 obligations.

41. No aspersions have been cast against Mr and Mrs Reiter by Council in respect of the documentation it has lodged for endorsement to Planning Permit 0703/00 issued 19 February 2001.

42. The Tribunal finds there has been a material mistake made by the Responsible Authority pursuant to s.87(1)(c) of the Planning and Environment Act 1987 and will direct the issue of an amended permit as well as the cancellation of two of the endorsed plans thereunder. The Tribunal notes in this regard that it has this power pursuant to s.91(1) of the Planning and Environment Act 1987.

43. The Tribunal does not agree with Mr Reiter's submission that the words "without the written consent" applies to cl.7.1 of the s.173 Agreement. They are limited to Clause 7.2 and further, it is questionable whether it is even valid in respect of Clause 7.2.

44. Accordingly, the Tribunal makes the order in the manner set out above.