Sweetvale PL v Minister for Planning reasons [2001] VCAT 1427

and by the provisions of Clause 43.01-3 (Heritage Overlay) to the extent of the ambit of the permit granted under the Heritage Act 1995 from contesting the decision of the Responsible Authority to grant a permit pursuant to the requirements of those provisions.

2. The Applicants are entitled in this application to seek a review of the decisions of the Responsible Authority embodied in the Notice of Decision to Grant a Permit pursuant to the provisions in the Melbourne Planning Scheme requiring a permit which are not subject to such an exemption, in particular and without limiting the generality of the foregoing:

* Clause 37.04-2, Schedule 1, paragraph 1.0, Section 2 relating to use of the subject land,

* Clause 37.04-4, Schedule 1, paragraph 2 relating to demolition of buildings,

* Clause 43.01 (Heritage Overlay) as to any issue outside the ambit of the permit granted under the Heritage Act 1995,

3. The Applicant's application for an adjournment is refused and the hearing shall recommence on Friday 1 June 2001. At the hearing the order of presentation is altered to be:

* a right of reply to the Respondent/Permit Applicant.

1. This application for review is brought by Sweetvale Pty Ltd and JGL Investments Pty Ltd against the decision of the Minister of Planning under the Melbourne Planning Scheme to grant permit application No 2000/351 allowing the development and use for the purposes of dwellings, shop, food and drink premises, office and associated car parking in accordance with the endorsed plans for the subject premises contained in a Notice of Decision to Grant a Permit dated 18 December 2000.

2. The proposal was described in the application for planning permit as:

"demolition of existing three and four storey buildings and basement car parking, refurbishment and extension (including five levels above the top level of the existing 9 storey Mayfair Building, and construction of a new 23 storey apartment (and some office) tower building and 2 - 3 storey loft style apartments above the ground level podium, for retail (including through block arcade), residential and commercial office uses together with dedicated six level basement car parking and lighting facilities."

3. Senior Member R Walker, at a Directions Hearing on 2 March 2001 made the following directions:

"1. This Application is admitted to the Commercial List.

2. The Application is fixed for a seven day hearing commencing on 28 May 2001.

3. Upon the Respondent/Permit Applicant and the Responsible Authority agreeing that it will not be contended at the hearing that, because the objectors have no right to appeal on certain aspects, the objectors, upon the hearing of the Appeal, are confined to those aspects where an appeal lies, the Application for a preliminary hearing to decide that issue is refused.

4. The Respondent/Permit Applicant shall file and serve final plans certified in accordance with the Practice Note by 9 March 2001.

5. The evidence in chief of any witness proposed to be called shall be in the form of a statement or report which shall be filed with the Tribunal and served upon all other parties no later than 4pm on 14 May 2001.

6. Liberty is reserved to all parties to apply for further directions."

4. As explained to the Tribunal, the purpose of Senior Member Walker's Direction No 3 was to enable the Tribunal to consider all issues raised by the parties in relation to the application even though some of the relevant planning controls were subject to provisions providing for exemption from giving notice and restricting the rights to bring an application for review under Sub-section 82(1) of the Planing and Environment Act.

5. The permit was granted pursuant to a number of planning controls in the Melbourne Planning Scheme. Some of these planning controls were subject to exemption provisions. The exemption provision in Clause 37.04, Schedule 1, Clause 2.o is typical and reads as follows:

An application to construct a building or construct or carry out works for a Section 1 use of Clause 37.04-1 is exempt from the notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act."

6. In this decision I call these provisions "exemption provisions".

7. The following table sets out the Planning Scheme provisions affecting this development and indicates whether or not there is an exemption provision:

37.04-2 (Capital City Zone) Schedule 1, Clause 1, Section 2

NOTE: Under Clause 43.01-3 no permit is required under this overlay to develop a heritage place identified in the Schedule to this overlay as a place which is included on the Victorian Heritage Register if (inter alia):

* A permit for the development has been granted under the Heritage Act 1995.

A permit under the Heritage Act has been granted for the Mayfair Building redevelopment (part of the site).

Some exemption provisions apply but are not relevant to this case

* Schedule 1 - active street frontages - Capital City Zone

* Schedule 2 - height controls - Capital City Zone

* Schedule 3 - traffic conflict frontage - Capital City Zone

* Schedule 4 - weather protection - Capital City Zone

To construct a building or construct or carry out works

Yes - Clause 3 of each Schedule includes an exemption provision in respect of an application to construct a building or construct or carry out works.

8. When the hearing commenced on 28 May 2001, Mr Smithers for the Responsible Authority presented his written submission. In his description of the Planning Controls he referred to the exemption provisions. In Clause 10 of his submission he drew attention to the fact that in relation to a number of bases on which a permit is required for this development, an exemption provision applies, and contended that a number of issues, the subject of exemption provisions, were excluded from the Tribunal's jurisdiction, but that issues not subject to exemption provisions and which could be considered by the Tribunal were:

* Heritage matters not subject to the permit granted by the Heritage Council

"The fact that the applicant and the responsible authority have agreed for reasons of practicality that they will not object to any evidence on the grounds that it relates to a matter beyond VCAT's jurisdiction, cannot alter the fact that any evidence which does relate to matters which are beyond VCAT's jurisdiction is not relevant to the ultimate determination of the issues properly arising in this case, Thus the Tribunal will hear evidence without objection as to relevance, relating to all issues, but if it decides that the above provisions ousting appeal rights do indeed have that effect, and the Heritage obligations have been excluded, then a component of that evidence will not be relevant to its determination.

The responsible authority's primary contention is that of all the land use and development issues arising in this case, only one - demolition - can clearly be said to be within the Tribunal's jurisdiction.

It is submitted the Tribunal should proceed in this case by making a determination on the question of the extent of its jurisdiction, and deciding on the merits of those issues which it determines are properly within the scope of this application. Next, in accordance with the procedure agreed at the direction hearing, it should proceed to form a view on the merits of the other issues which it concludes are beyond its jurisdiction. This would be on the basis of practicality; if any part of the determination in relation to jurisdiction was found to be wrong on appeal, there would be no need to remit the matter back to VCAT for re-consideration.

The Tribunal does have the power to join other parties to the proceeding (Section 59(1) of the VCAT Act). It would not be appropriate to exercise that power here, however, because that would entirely negate the clear and specific provisions ousting the Tribunal's jurisdiction in regard to issues other than demolition. Besides, the objectors are already parties to the appeal, albeit with limited rights to participate on those issues only."

10. Mr Wright immediately objected to this submission as being in breach of the agreement recorded in Direction No 3 of Senior Member Walker's order. After discussions, which included the issue of costs, Mr Smithers obtained instructions to withdraw any contention that the Tribunal has no jurisdiction to consider any aspect of the matter or that the Applicant for review is excluded from making his application for review in respect of the planning controls which are subject to the exemption provisions. He stated the Responsible Authority regarded the development as a significant development and that it was a matter of great importance that the merits be dealt with as expeditiously as possible.

11. Both Mr Gobbo for the Respondent/Permit Applicant and Mr Townsend for the Melbourne City Council supported this submission and indicated that they would not be contending in any way that the exemption provisions applied to exclude Mr Wright from raising any argument on behalf of his client.

12. Mr Wright for the Applicant for Review stated that the issuer was now on the table and could not be ignored by the Tribunal, that by reason of Mr Smithers making the contention, the Tribunal is now seized of the point of the application of the exemption provisions and that no withdrawal or concession of any parties can take the issue off the table.

13. He submitted that jurisdiction cannot be conferred by agreement, which is quite a different matter to that of parties agreeing to proceed on the basis that there is jurisdiction and not to raise the point, and that a most unsatisfactory dilemma is created for his client in that he is not able to argue the point today, research being needed to prepare for argument, and also that as the point has been raised his client is at a high risk of being deprived of a merits review of the decision to grant the permit.

14. Mr Gobbo considered the matter should proceed, that Mr Smithers had withdrawn the contention and that he, the Responsible Authority and the Council will not be arguing the issue and the Tribunal has not indicated any concern at considering the merits. He submitted it is not correct to say that once a point has been raised it cannot be withdrawn, and that Mr Wright has already raised the point in the proceedings before Senior Member Walker before the agreement was reached, although he conceded that the Directions Hearing was not a full argument of the application of the exemption provisions but rather convened to consider whether a preliminary hearing should be called to consider the matter.

15. Both Mr Smithers and Mr Townsend submitted it was open to the Tribunal to hear the whole matter on the merits and then hear legal argument at the conclusion of the proceedings on the application of the exemption provisions.

16. On these submissions the Tribunal made the following rulings:

(b) If a party wishes to argue the application of the exemption provisions it may do so at the end of the hearing or at some time agreed between the parties. However whatever the agreements between the parties, the Tribunal must consider the issue.

(c) In the interests of expedition and the need to resolve the matter on all issues the Tribunal will proceed forthwith.

17. After the luncheon adjournment Mr Wright advised the Tribunal that he had instructions to apply to the Supreme Court before the Tribunal embarks on a merits hearing and undertook that he would approach the Supreme Court later that day or the next and that the matter should be stood down.

18. At this point Mr Gobbo advised that his client did not wish the matter to go to the Court and would prefer the application of the exemption provisions be determined as a preliminary point.

19. There was some discussion as to when the preliminary point should be argued and the matter was set down for 10.00am on Wednesday 30 May 2001.

20. In the interim the Tribunal inspected the site and the surrounding area.

21. At the commencement of the hearing there was a general review of the cases in the Tribunal which referred to the subject matter under debate. They were:

1. The Oakford Group v. Robert J Carrick & Associates Pty Ltd and Melbourne City Council, Deputy President Julia Bruce, Application No 1999/88643.

2. Primavera Venture Pty Ltd v Overland Properties Pty Ltd and Melbourne City Council, Deputy President Julia Bruce, Application No 1999/71067.

3. Huczek and Another v Mark Holly & Associates Pty Ltd and Yarra City Council, Deputy President Julia Bruce and Member Peter O'Leary, dated 3 August 1999, Application No 1999/21967.

4. T B T (Vic) Pty Ltd and Others v Melbourne City Council and Bourke Hill Holdings Pty Ltd, Members A Liston and S Gilfillan, dated 28 June 2000 Application No 2000/005266.

5. Paragraph 52 of Mrs Bruce's decision in Block v Indigo Shire Council Application No 2000/17726.

6. Metro Palace Pty Ltd v Melbourne City Council, Ms J A Moles, Member [1999] VCAT 164, 30 June 1999

7. Pearce and Geddes, Statutory Interpretation in Australia, 4th Edition, Chapter 9, p222.

22. In argument Mr Wright referred to the Supreme Court of Victoria decisions in:

* Davey v Brightlite Nominees Pty Ltd [1984] VicRp 76; [1984] VR 957 at 962, and

* National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society and Another [1976] VicRp 60; [1976] VR 592 at 606.

23. Mr Wright submitted that the Tribunal had jurisdiction to consider any matter relevant to all the planning controls and that its jurisdiction is not confined by the exemption provisions.

* Demolition of existing buildings including a heritage building

* Use of new buildings and works for office, residential accommodation, retail and carparking (see Application form and certified documentation and the permit).

25. He contended the car parking is not ancillary but the excess of car spaces over the Planning Scheme requirements indicates that carparking is intended as a separate use, notwithstanding the reduction in the number of apartments recently proposed.

26. He undertook an examination of the planning controls mentioned above, and conceded that his case did not involve any consideration of Clauses 3 to 6 of Schedule 1 of Clause 37.04 of the Capital City Zone provisions.

27. In relation to the Heritage Overlay provisions he submitted Clause 43.01-1 requires a permit for the construction of the buildings and works over the whole site, but that the Heritage Council permit only applies to the existing Mayfair building on the Collins Street frontage, that the exemption provision in Clause 43.01-4 only applies to a number of minor works are not applicable in the present case, and accordingly no exemption provision applies to preclude his client from bringing an application for review under Sub-section 82 in respect of matters under the Heritage Overlay, other than the matters subject to the Heritage Council permit.

28. He submitted that what is before the Tribunal is a scrambled egg which cannot be unscrambled and for this reason the matter was advertised as a whole, only one permit application was lodged and the Council only issued a single notice of decision for the whole development.

29. The former practice of making separate applications distinguishing between the exempt and non-exempt controls and of issuing of separate permits or notices of decision for each was not followed.

30. He submitted that once his client has a right to make an application for review under any provision of the Planning Scheme, Sub-section 82(1) entitles him to obtain a review of "the decision".

31. He referred to Pearce and Geddes on Statutory Interpretation Chapter 9 at page 222 that this provision was a remedial provision and should be construed beneficially which means (quoting Bull v Attorney General [NSW] [1913] HCA 60; 17 CLR 370):

"...of course not that the true significance of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow."

32. He submitted that in the absence of clear words restricting the right to seek a review of the decision, Sub-section 82(1) contains no warrant to restrict the extent of the matters which can be covered, although he did refer to Sub-sections (2) and (3) as referring to the exemption provisions.

33. He submitted that if the legislation contemplated that there will be situations of partial exemption, the Act should have specified that the ambit of the review of a decision was restricted, and that it is important to divorce the issue of the jurisdiction of the Tribunal from the ambit of the matters which the Tribunal may consider and referred to the National Trust decision to support the proposition that the ambit of the case is defined by the ambit of the planning controls that require a permit.

34. He argued that the right of review under Sub-section 82(1) is of the whole decision and that his client is entitled to canvass all matters involved in the planning controls, that the right of review should not be limited because some of the planning controls contain an exemption provision, and that the Tribunal does have jurisdiction to hear and determine any issue that arises under those controls.

35. He referred to Deputy President Julia Bruce's decision in Huczek v Mark Holly and Associates Pty Ltd v Melbourne City Council, which involved the issue as to whether the exemption provisions applied retrospectively to preclude an application for review made before they came into force, where she held that in the absence of clear and unambiguous words, the presumption against retrospectivity should not be displaced and that the Tribunal in that case was able to hear the application for review.

36. He submitted the same principal applies to the interpretation of Sub-section 82(1) and that once a party is entitled to review the decision he is entitled to ventilate any issue relevant to the decision whether or not an exemption or provision applies to any particular planning control.

37. He acknowledged that Deputy President Bruce's decision in the Oakford Group v Robert J Carrick & Associates and Melbourne City Council at paragraph 20 was against him and submitted that the decision was wrong.

38. He referred to the decision of Metro Palace Pty Ltd v Melbourne City Council where the exemption provisions were raised before Ms Moles but the matter was adjourned and subsequently settled.

39. He also acknowledged that the decision of the Tribunal in TBT (Vic) Pty Ltd v Melbourne City Council and Bourke Hill Holdings Pty Ltd at paragraph 2 determined that the ambit of discretion available to the Tribunal in the context of the application of review was limited to certain matters not subject to exemption provisions. That case also considered the Capital City Zone and Clause 37.04 of the Melbourne Planning Scheme in a way similar to this. However Mr Wright submitted this decision was wrong and that the two members were not legal practitioners.

40. Mr Smithers opened with an explanation of why he raised the contention as to the application of the exemption provisions in his submission. There was some discussion of this, but the Tribunal accepts what Mr Wright and Mr Gobbo say that in fact the wording of Direction No. 3 of Senior Member Walker's order was agreed in detail by all the parties to the hearing.

41. He also submitted that on the first day of the hearing he obtained instructions to withdraw the contention of the application of the exemption provisions in view of the Tribunal's remarks as to breach of the agreement and possible consequences as to costs, but the matter has been reconsidered, and he was now instructed to raise the application of the exemption provisions but was content to rely on his written submission in the matter.

42. He referred to correspondence from the Responsible Authority to the Respondent /Permit Applicant dated 21 December 2000 requiring it to advertise and enclosing a notice to be given to other parties and he pointed out that the notice referred to some planning controls being subject to exemptions provisions and some being not, and that the Responsible Authority was aware of the duality.

43. He submitted that Sub-section 82(1) was subject to the provisions of Sub-sections 82(2) and (3) which were included in the Act when the new VPP format planning scheme containing exemption provisions came into force and he submitted that these provisions were words which qualify the ambit of Sub-section 82(1). They read as follows:

"(2) A planning scheme may set out classes of applications for permits the decisions on which are exempted from sub-section (1).

(3) If a planning scheme exempts a decision of an application for a permit from sub-section (1), an application for review cannot be made under that sub-section in respect of that decision."

44. He submitted that in Sub-section 82(1) "decision" does not mean a single indivisible decision and referred to paragraphs (kc) and (kd) of Sub-section 6(2) of the Planning and Environment Act 1987 which permitted a planning scheme to:

"(kc) set out classes of applications for permits exempted wholly or in part from section 52(1) and set out notice requirements (if any) to apply in place of the requirements of that sub-section;

(kd) set out classes of applications the decisions on which are exempted from the requirements of section 64(1), (2) and (3) and section 82(1);"

45. He submitted that the text of those paragraphs indicated that an application for permit may include a number of classes of applications and a number of decisions, noting that in paragraph (kd) the word "decisions" is in the plural, and that Sub-sections 82(2) and (3) and paragraphs (kc) and (kd) of Sub-section 6(2) are specific provisions which oust the general presumption that the word "decision" means the whole decision.

46. He submitted that to adopt Mr Wright's submission would be to negate exemption provisions in the Planning Scheme and force permit applicants to revert to the previous expensive and confusing practice of separate applications for exempt and non-exempt planning controls.

47. He submitted that the Huczek decision can be distinguished on the basis that it is a decision relating to retrospectivity and submitted that the Tribunal should accept the authority of Deputy President Bruce in the Oakford Group decision.

48. He submitted that the Tribunal should hear all the merits and then make its decision as to the application of the exemption provisions on the issues are the same.

49. He considers that this is not a case where the preliminary issue should be determined first because the issues of separate planning controls are inter woven and it will be best if all the merits were heard together and the Tribunal determines the application of the exemption provisions after hearing all the evidence.

50. Mr Gobbo sought that the Tribunal give an oral decision and written reasons later and supported Mr Smithers submissions.

51. At the hearing the Tribunal made the order on the preliminary issue indicated above and gave oral reasons. It now gives the following written reasons.

52. The Tribunal accepts Mr Smithers' submissions in preference to those of Mr Wright and follows the decisions of Deputy President Bruce in Primavera and the Oakford Group.

53. The Tribunal considers Sub-section 82(1) is a remedial provision and should be construed beneficially but that the inclusion of Sub-sections 82(2) and (3) together with paragraphs (kc) and (kd) in Sub-section 6(2) are words that limit the operation of Sub-section 82(1) to the effect that the decisions which may be reviewed under Sub-section 82(1) do not include decisions under planning controls which are subject to an exemption provision.

54. Whilst the notice of decision on its face appears to be a single decision, the Tribunal considers it is not indivisible. It represents the outcome of a number of decisions made by the Responsible Authority under a number of planning controls some of which are subject to exemption provisions and some of which are not. The exemption provisions should be given force and effect in respect of the planning controls to which they apply. It is not relevant to the Tribunal's consideration that the Respondent/Permit Applicant has chosen to make a single permit application to the Responsible Authority or that the Responsible Authority has chosen to issue a single notice of decision. This course of action does not in the Tribunal's view operate to exclude the operation of the exemption provisions.

55. To conclude that once a party is permitted to bring an application for review under a planning control which is not subject to an exemption provision entitles that party to contest decisions made under planning controls which are subject to an exemption provision in the Tribunal's view negates the exemption provisions and is contraty to the purpose, clear meaning and intent of the planning scheme. The intent of the planning scheme is demonstrated by Clause 37.04-4 which in one part exempts buildings and works from applications for review but in the immediately following paragraphs require a permit for demolition without exemption provisions.

56. The Tribunal considers that the National Trust decision of the Supreme Court supports this conclusion that the Tribunal may only consider matters that are relevant to the planning controls in respect of which an application for review may be brought, that is planning controls to which no exemption provision applies.

57. In the Capital city Zone it would be most unusual to find a situation where the construction of buildings and works did not involve some demolition requiring a permit. If Mr Wright is correct, then in all cases where demolition is necessary, an objector using his or her right to bring an application for review in respect of the demolition permit decision is also entitled in that application to contest all aspects of the building and works permit decision, notwithstanding however small the demolition required and the differences between the issues of demolition on the one hand and the buildings and works on the other.

58. However if there was a case where no demolition permit was required, e.g., in the Queen Victoria Hospital site, the exemption provision would exclude an objector's application for review against the building and works permit decision.

59. The Tribunal does not accept that such an anomalous situation is intended.

60. After this oral decision, Mr Wright sought an adjournment to a Directions Hearing on Friday 1 June 2001 at which a new date could be set.

61. He stated that his clients need time to prepare and reorganise their case. He indicated that he would wish to discuss with his clients whether there should be an appeal to the Supreme Court on the decision on the application of the exemption provisions and that his clients may consider bringing other proceedings whether in the Tribunal or elsewhere such as applications for declarations in respect of the matter and that these matters should all be heard together, but he had no instructions at that point.

62. In response, Mr Gobbo submitted that he took no issue with Mr Wright's proposition that he wished to contest all issues. He was prepared to tailor his case quickly and would be ready to re-write their submissions in preparation for the hearing continuing on Friday and considered that all parties were capable of doing so in a short period of time. He submitted that the Applicant would not have to call any further evidence and that in the decision on the exemption provisions results in a contraction of the issues before the Tribunal.

63. As to whether there are alternative means of challenging the Notice of Decision is a matter for Mr Wright's clients and that if that decision is taken his client will meet such proceedings

64. He submitted the matter should be stood down until Friday morning which will give the parties Thursday to re-cast their submissions and to confer with their witnesses and that it would be of no damage to the proceedings if the witnesses evidence went beyond the scope of the matters that could be considered.

65. Mr Smithers supported this position and Mr Townsend for the Council made no objection.

66. The Tribunal refused Mr Wright's application and directed that the merits hearing would proceed on Friday commencing at 10.00am. The order of the proceedings would be the Responsible Authority first, the Melbourne City Council second and then in order to give Mr Wright more time to prepare the Respondent/Permit Applicant go next followed by the Applicant, subject to the Respondent/Permit Applicant having a right of reply to any material Mr Wright presented.

67. This would give Mr Wright Thursday, some time on Friday and the weekend to regroup and rearrange his evidence on the contracted range of issues.

68. In respect of the possibility of other proceedings before the Supreme Court or in the Tribunal it is noted that Mr Wright had not received instructions to commence those proceedings. The decision of the Tribunal is that the matter will proceed, but naturally the Tribunal will comply with an order of the Court.

69. If Mr Wright's clients wish to bring other applications in the Tribunal they are at liberty to do so and they will be considered in due course. However this application was commenced on 8 January 2001 and his clients have had sufficient time to consider the possibility of such proceedings. The Tribunal considers the hearing of this application should not be delayed because of a belated desire to explore those issues.

70. The Tribunal is conscious that the effect of the exemption provisions issue being raised in this way has resulted in four of the seven days listed for hearing being lost, notwithstanding the willingness of the Respondent/Permit Applicant, the Responsible Authority and the Melbourne City Council to proceed on a consideration of all the merits evidence. If the matter had proceeded in this way then Mr Wright's client would not have been disadvantaged at all except for the possibility of an adverse finding on the application of the exemption provisions.

71. At the conclusion Mr Wright requested that written reasons be given for the Tribunal's decision on these interim matters and it is pursuant to that request that these reasons are given.