Sweetvale Pty Ltd & Ors v Victorian Civil and Administrative Tribunal & Ors [2003] VSCA 83

Melbourne Planning Scheme - Capital City Zone - Design and Development Overlays - Clauses 37.04, 43.01 and 43.02.

2. In this matter, for the reasons so succinctly expressed by Warren, A.J.A., I consider that leave to appeal should be refused.

7. I have had the advantage of reading in draft the reasons prepared by Warren, A.J.A., and agree with her Honour that the application for leave to appeal should be refused for the reasons she has stated.

12. The appellants were objectors to a planning permit application that was the subject of a notice of a decision to grant by the third respondent, the Minister for Planning ("the Minister") to the second respondent, Denton Corker Marshall Pty Ltd ("DCM"). The appellants sought to review the decision in the first respondent, the Victorian Civil and Administrative Tribunal ("the Tribunal"). At the outset of the hearing before the Tribunal a preliminary issue arose as to the extent of the matters that the appellants could raise before the Tribunal. Essentially, the preliminary issue was concerned with whether the appellants before the Tribunal could raise and argue all aspects of the planning permit, notwithstanding that parts of the application were exempted from objections and review by third parties, or, whether they were confined to limited matters that fell outside the exemptions. The Tribunal determined that the appellants were limited in the arguments and submissions they could make. The appellants applied to the Supreme Court to review the decision of the Tribunal pursuant to the Administrative Law Act 1978. An order nisi was granted by a Master and the order was effectively discharged when the proceeding was later dismissed by a judge of the Trial Division. The appellants sought leave from this court to appeal against that order for dismissal.

15. 4 The parties were content for this court to hear an application for leave to appeal and the appeal together and, if leave to appeal was granted, to determine the appeal.

18. The application for leave to appeal and, if necessary, the appeal, were agitated between the appellants and the Minister. The applicant for the planning permit, DCM, did not participate in the hearing below. We were informed on behalf of DCM at the outset of the hearing before this court that DCM would abide the event and did not wish to appear, save to reserve its rights as to costs.

21. The planning permit sought by DCM related to land at 167-173 Collins Street and 172-184 Flinders Lane, Melbourne ("the appeal site"). The appellants are the owners of the adjoining land at 161 Collins Street, Melbourne known as the T & G Building ("the appellants' site"). The applicant for the planning permit, DCM, proposed a development that encompassed the demolition of existing buildings and the construction of a 23 storey building providing for, inter alia, apartments, offices, retail and car parking. The permit application described the proposed development thus:

"Demolition of existing 3 and 4 storey buildings and basement car parking, refurbishment and extension (including 5 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 a ground level podium, for retail (including through block arcade), residential and commercial office uses together with dedicated 6 level basement car parking and loading facilities."

25. The appeal site was subject to the planning controls contained in the Melbourne Planning Scheme ("the Scheme"). The appeal site was within the Capital City Zone and subject to the Design and Development Overlays and the Heritage Overlay under the Scheme.

28. The application for the permit constituted a single application made up of five parts. Under the Scheme, planning permission was required in relation to a number of aspects: first, for construction of a building or for works;[1] secondly, for demolition or removal of a building or works;[2] thirdly, for use as a car park;[3] fourthly, for demolition, construction and works arising from the requirements of the Heritage Overlay;[4] and fifthly, for construction or works arising from the requirements of the Design and Development Overlays.[5]

31. The Planning and Environment Act 1987 contains a regime for objections to the granting of permits and, if a decision to grant a permit is made, the seeking of a review of that decision to grant a permit. Those reviews are heard and determined by the Tribunal. The statutory regime relating to third party objections, for present purposes, commences with s.6(2)(kc) of the Act. It provides that a planning scheme may set out classes of applications for permits exempted wholly or in part from the notice requirements elsewhere in the Act. Section 6(2)(kd) provides that a planning scheme may set out classes of applications for permits where the decisions on such applications are exempted from the notice requirements specified in the Act and exempted from review by the Tribunal. Section 52(1) of the Planning and Environment Act sets out the requirements for notification of an application for a planning permit to specified parties, including the owners and occupiers of adjoining allotments. Summarily, s.52(4), (5) and (6) largely provide that a planning scheme may exempt certain applications from those notice requirements and, essentially, mirror s.6(2)(kc) and (kd) of the Act. Section 60(3) of the Planning and Environment Act provides that if no notice is required to be given under s.52(1) of the planning scheme then the responsible authority is not required to consider any objection before deciding the application for a permit. Section 64(1), (2) and (3) of the Act requires notice of the decision to grant a permit to be given to any objector to the application for a planning permit.

34. For present purposes, the regime set out in the Planning and Environment Act concerning the restrictions upon third party objections and rights of review culminate in s.82, which provides:

"82. Appeals where objectors (1) An objector may apply to the Tribunal for review of a decision of the responsible authority to grant a permit. (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."

38. The appeal before this court was concerned with two particular exemption provisions in the Melbourne Planning Scheme. The first exemption occurred under clause 2 of schedule 1 to the Capital City Zone of the Scheme where an exemption is inserted from notice to and reviews by objectors.[6] The exemption relates to the application for a permit for buildings and works. It provides:

"Exemption from notice and appeal An application to construct a building or construct or carry out works for a use in S.1 of Clause 37.04-1 is exempt from the notice requirements of S.52(1)(a), (b) and (d), the decision requirements of S.64(1), (2) and (3) and the review rights of S.82(1) of the Act."[7]

42. The second relevant exemption occurs under the Design and Development Overlays. Pursuant to clause 43.02-2 of the Scheme, a permit is required for construction or works not in accordance with any requirement in a schedule to the relevant overlay. Clause 43.02-2 contains an exemption provision in relation to notices and review rights. It provides that a schedule to the Design and Development Overlays may exempt an application from the notice and notice of decision requirements and the review rights of the Act. The schedules to the Design and Development Overlays are relevant. Schedule 1 is concerned with street frontages; schedule 2 is concerned with height control and restricts development of the appeal site to a maximum building height of 40 metres unless permission is granted to exceed that height;[8] schedule 3 is concerned with traffic matters; schedule 4 is concerned with weather protection of, inter alia, pedestrians. Each of the four schedules contains a separate exemption from notice to third parties and commensurate review rights. Each schedule provides:

"Exemption from notice and appeal An application to construct a building or construct or carry out works is exempt from the notice requirements of S.52(1)(a), (b) and (d), the decision requirements of S.64(1), (2) and (3) and the review rights of S.82(1) of the Act."[9]

46. Returning to the five components of the application for a permit, there was no issue between the parties as to the provision for exemption from notice and review rights relating to a permit to construct a building or for works[10] or for a permit for construction or works arising from the Design and Development Overlays.[11] We were informed that although exemption provisions applied under the Heritage Overlay,[12] the exemptions were not relevant to this proceeding. Hence, no exemptions applied under the Scheme with respect to the requirements for a permit for demolition[13] and for a permit for use as a car park.[14]

49. Mr H. McM. Wright who appeared with Ms S. Brennan for the appellants articulated the question of the appeal as being whether the single application lodged by DCM for a planning permit met the description of an application that was subject to the various exemptions under the Scheme, that is to say, whether it was of a class exempted under the Scheme. It was submitted that the application was not properly characterised as "an application to construct a building or construct and carry out works for a use in S.1(1) of Clause 37.04-1" or "an application to construct a building or construct or carry out works" (my emphasis). Hence, it was submitted, the application lodged by DCM for a permit was not an application that was exempt from review. Rather, it was argued that the application was a "compendious" or composite application that sought approval under all applicable planning controls regardless of whether the particular control contained an exemption or not. It was submitted that the application sought permission to allow demolition of existing buildings, to demolish existing buildings and construct new buildings and works under a specific heritage control, to use land for a car park and for dispensation from certain car parking requirements and that none of those matters was exempt from review under the scheme. Mr Wright submitted that because the single application was partly to carry out building and works but also partly to carry out demolition and the other matters, the application assumed a characteristic that disqualified it from the benefit of the exemptions. Accordingly, so the argument ran, the application for a planning permit did not answer the description of "an application to construct buildings or to construct or carry out works" (my emphasis) and, therefore, was not exempt from review. If the argument was valid the practical effect on the review before the Tribunal would be that all aspects of the application for the permit would be at large and subject to challenge by the appellants.

52. Mr Wright informed the court that there was no authority on point. He referred, in passing, to Addicoat v Fox (No. 2),[15] a decision of Brooking, J., as authority for the proposition, inter alia, that a planning permit cannot issue for a use or development that differs to such an extent from the use or development applied for as to constitute a different use or development. Clearly, that is not the situation here. Reference was also made to a judgment of the Full Court in National Trust of Australia (Vic.) v Australian Temperance and General Mutual Life Assurance Society Limited and Anor[16] in support of the proposition that a responsible authority is obliged to have regard to all relevant considerations in relation to both exempt components and to non-exempt components and that, therefore, the Tribunal on review, must do the same, that is, the scope of the relevant considerations for the Tribunal is defined by the purpose for which the discretion is conferred and not by the existence of an exemption. In the National Trust case the planning tribunal dismissed an objector's appeal on the grounds that the objections were concerned with conservation matters that were not relevant to a refusal to grant permits. Essentially, the planning issues in the case were concerned with the exercise of a discretion with respect to height controls.

55. The National Trust case was concerned with circumstances where the relevant planning control was silent as to conservation matters hence rendering the objection irrelevant. In the present case the Act and Scheme specify the matters to be taken into account and the exemptions that are to apply with respect to objections. In this matter the scope of relevant considerations to be applied by the responsible authority and, if needs be, the Tribunal on review, is defined by the Planning and Environment Act and the Scheme.[17]

58. In any event, it seems to me that there is a short point on statutory construction that disposes of the arguments for the appellants. The point is concerned with s.47(1) of the Planning and Environment Act. It provides (with my emphasis) that "If a planning scheme requires a permit to be obtained for a use or development of land ... or for any combination of use, [or] development ... the application for the permit" must satisfy certain matters as to form, payment of fees and provision of information and the like. In my view the wording of s.47(1) of the Act is plain and clearly contemplates that an applicant for a permit may lodge a single application for a permit for a use or development or for a combination of use(s) and development(s). The applicant acted appropriately in the present case in lodging a single application notwithstanding that it proposed a number of components to facilitate a particular planning outcome. Once the application was lodged, the Minister, as the responsible authority, was bound under s.60 to consider certain matters including objections as required under s.60(1)(a)(i) of the Planning and Environment Act. However, s.60(3) of the Act specifically provides that "Despite sub-s.(1)(a)(i), if no notice is required", then, "the responsible authority is not required to consider any objection or submission received in respect of the application before deciding the application." The Tribunal, in exercising its review jurisdiction exercises the functions of the responsible authority as the decision maker.[18] It follows that no right of review to the Tribunal lies where an exemption is imposed. Any review is limited to those parts of the application for the permit to which the appellants were able to object in accordance with the Act and the Scheme.

61. For these reasons I do not consider that the proposed appeal has any merit.

64. The threshold matter before the court is an application by the appellants for leave to appeal from the judgment below. I am satisfied that the judgment against which the appellants desired to appeal was interlocutory in that it was ancillary to the proceeding before the Tribunal and thus leave to appeal was necessary: see e.g. Schmidt v Won.[19] For the purposes of the application for leave, and for that matter, for the purposes of supporting the merits of the appeal, no criticism whatsoever was made of the reasons of the learned judge below. Although the matter was argued more expansively and in some respects a little differently below, having had the benefit of considering his Honour's reasons they largely echo the views I have expressed as to the merits of the proposed appeal. Essentially, the threshold matter to be determined by this court is whether the appellants have shown that the decision below was wrong or attended by sufficient error as to justify intervention by this court and that injustice would be caused to the appellants if leave was refused.[20] For the reasons I have set out I am not satisfied that there was error. The appellants did not suggest any injustice to them if leave to appeal was refused. In the circumstances, I consider that the application for leave to appeal should be refused.

[1] See Clause 37.04 - 4 (Capital City Zone), Schedule 1, Clause 2.

[3] Clause 37.04 - 2 (Capital City Zone), Schedule 1, Clause 1, Section 2.

[4] Clause 43.01 - 1 (Heritage Overlay).

[5] Clause 43.02 (Design and Development Overlays), Schedules 1, 2, 3 and 4.

[6] As provided by ss.6(2)(kc) and (kd), 52(4), (5) and (6) and 82(2) of the Planning and Environment Act.

[7] The heading to the exemption adopts the expression "appeal", however, the Planning and Environment Act uses the term "review" as does the wording of the exemption.

[8] See Clause 43.02 Design and Development Overlay, Schedule 2 Height Controls - Capital City Zone, Clause 2.

[9] The heading to the exemption adopts the expression "appeal", however, the Planning and Environment Act uses the term "review" as does the wording of the exemption.

[10] Under Clause 37.04-4 (Capital City Zone), Schedule 1, Clause 2.

[11] Under Clause 43.02 (Design and Development Overlays).

[12] Under Clause 43.01-1 (Heritage Overlay).

[13] Under Clause 37.04-4 (Capital City Zone), Schedule 1, Clause 2.

[14] Under Clause 37.04-2 (Capital City Zone), Schedule 1, Clause 1, Section 2.

[15] [1979] VicRp 37; [1979] V.R. 347.

[16] [1976] VicRp 60; [1976] V.R. 592.

[17] See ss.60 and 84B of the Planning and Environment Act and Clause 65 of the Melbourne Planning Scheme. The matters concerning objections are described in paras. [8] and [9] above.

[18] See ss.40(b), 42(1) and 51 of the Victorian Civil and Administrative Tribunal Act 1998; also, s.84B of the Planning and Environment Act.

[19] [1998] 3 V.R. 345.