Victorian Civil and Administrative Tribunal|2004-01-12|Before: Ashley J, Stuart Morris J

The application originally proposed a 75 metre Watson Place Building with the justification relying upon it being situated mid site (set back 35 metres from Collins Street), within the mid block and unable to be seen from street level in the immediate area. However, the Melbourne City Council, National Trust, Heritage Victoria and others raised concerns regarding the relationship to the distant views to the Watson Place Building. The application has since been amended by reducing the Watson Place Building height to approximately 60 metres which is considered to be sympathetic in maintaining the distant views to the surrounding heritage buildings including St Paul's Cathedral. The Westin Hotel is similar in height at 60 metres, but is located directly behind St Paul's Cathedral and arguably is more detrimental to the cathedral spire views and the current application. The Council, National Trust, and Heritage Victoria have been further consulted on the revised plans and in principle have no objection to the proposal.

37. Sweetvale seizes upon the reference to the Westin Hotel and submitted that this was an irrelevant consideration. Let me say it once, that even if it was an irrelevant consideration and the Minister did take it into account, it could not have had the effect of invalidating the decision. At best this factor was a mere side wind in the swirl of factors that the Minister took into account. In any event, I believe the situation in relation to the Westin Hotel was a relevant consideration.

38. The making of planning decisions by reference to the visual impact of development necessarily involves an understanding of the existing built environment. The Westin Hotel formed part of that environment. The comparison between the proposed building and the Westin Hotel made by Mr Renwick could have been used by the Minister in making his assessment as to whether the proposed building would be compatible with views of St Paul's Cathedral. For example, the Minister could have observed the effect of the Westin Hotel on St Paul's Cathedral from different vantage points, noted the effect of height, location and colours, and then, advised by Mr Renwick's opinion that the proposed building would be less detrimental than the Westin Hotel, make a judgement. Further, previous decisions do act as precedents in the making of planning decisions. It is true that the precedent value will be greater if circumstances are similar, including relevant policies. But I hold that the reference to the Westin Hotel as a precedent was still a relevant matter.

Failure to have regard to relevant considerations

39. Sweetvale further contended that the Minister failed to have regard to five relevant considerations. It is convenient to consider each of these in turn. In considering these contentions it is necessary to bear in mind the matters set out by Mason J in the Peko-Wallsend case, including:

* The ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making that decision;

* What factors a decision maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion;

* Not every consideration that a decision maker is bound to take into account, but fails to take into account, will justify the tribunal in setting aside the impugned decision and ordering that the discretion be re-exercised according to law;

* The limited role of a tribunal judicially reviewing the exercise of an administrative discretion must constantly be borne in mind.[12]

Further, having regard to the provisions of the Planning and Environment Act and the scheme it is necessary to make proper allowance for broader policy considerations which are relevant in the exercise of the discretion.

40. Sweetvale submitted that the Minister was bound to have regard to the report of the panel in relation to Amendment L216 to the scheme. This report, which is dated November 1996, was in relation to a development proposal to the north of the Scots Church. In the course of its report the panel concluded that that development would present a bulky profile within the skyline, when viewed from various distant perspectives and would impact upon the ability to read the spires of even St Paul's Cathedral from various perspectives. Whilst no doubt a relevant matter, it can hardly be said that the Minister was bound to take the panel's report into account in making the present decision. The nature of planning decision making will be that there are many potentially relevant matters which might be considered, but the decision maker will necessarily focus on several key factors, which he or she or it regards as the key factors.[13] Factors which a decision maker is bound to take into account will not be the same as factors which are relevant considerations.

41. Second, it is said that the Minister failed to have regard to the impact of the proposed building on the amenity of the T & G Building, in particular the impact on that building's air-conditioning and ventilation systems. For example, evidence was given by Mr Fearnside, an acoustic consultant, to the effect that it would be possible, but expensive, for Sweetvale to satisfy noise limit requirements if the tower was built. I doubt whether noise and ventilation are relevant matters in relation to the exercise of the discretion pursuant to the height control contained in the scheme. However, even if these matters are relevant, there is no basis for concluding that any failure by the Minister to take them into account vitiated his decision. It seems clear enough from Mr Renwick's report that the principal amenity concern raised by Sweetvale, namely the effect of the proposed development on the T & G Building's access to light, was taken into account. It does not matter if a decision maker fails to take into account a consideration which is a mere side wind, in the sense of being insufficiently significant to have materially affected the decision. In any event, it is Sweetvale's responsibility to comply with noise and air quality requirements in respect of its building.

42. Third, it was said that the Minister failed to have regard to the fact that the clear sky backdrop to the spires of St Paul's Cathedral would be diminished by the proposed building. I find that the Minister did have regard to the effect of the proposed building on the views of St Paul's Cathedral. The fact that the Minister may have reached a conclusion on this question contrary to that sought by Sweetvale does not mean that the Minister failed to consider the matter.

43. Fourth, it was contended that the Minister failed to consider the amenity of future residents of the proposed development. In this respect, Sweetvale criticised a comment made in Mr Renwick's report to the effect that the permit applicant was aware of the fact that some apartments would have poor access to direct light, and would be affected by overlooking, but accepted this diminished level of amenity. (Sweetvale said the permit applicant's acceptance was an irrelevant consideration.) However I find that on the basis of Mr Renwick's report the Minister did consider the internal amenity of future residents of the proposed apartments; and thus could not be said to have failed to consider a relevant consideration. Moreover it was legitimate for the Minister to acknowledge the permit applicant's awareness that some apartments would have diminished access to sunlight and would be affected by overlooking. No doubt the permit applicant believed that the apartments would still be desirable, perhaps by reason of centrality or reduced price. Although planning schemes do seek to achieve certain minimum standards for new apartments, it must be accepted that some new apartments will be better than others. Some residents will regard centrality or price as more important than sunlight or privacy.

44. Fifth, it was said that the Minister failed to have regard to planning policies relating to laneways in the central business district. This contention was based upon the closure of Lush Lane which was necessitated by the development. However, even if this lane was a public lane (which it was not) and even if it was an attractive lane (which it was not) and even if it provided a valuable through access way (which it did not), it cannot be said that any failure by the Minister to consider this matter was material.

45. The contentions made by Sweetvale were articulated in yet other ways: for example that the Minister's decision was manifestly unreasonable; that the Minister acted on inadequate material; and that the Minister acted on inaccurate material. For all intents and purposes, these basis are no more than a rehash of the main contentions which have been discussed above. For the reasons given above, as well as reasons articulated by the respondents, I reject these additional contentions.

[1] References in this decision to "Sweetvale" are to be taken as references to both Sweetvale Pty Ltd and J G L Investments Pty Ltd, unless the context suggests otherwise.

[2] When the T & G building was rebuilt, Sweetvale entered into an agreement pursuant to the Building Act to close up the windows on the western boundary if this became necessary as a result of the redevelopment of the subject land.

[3] Sweetvale Pty Ltd v Minister for Planning [2001] VCAT 1426.

[4] Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal [2001] VSC 426.

[5] Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal [2003] VSCA 83.

[9] The use of the word must does not necessarily mean that the parliament intended that a failure to comply with the requirement was intended to invalidate a decision under the instrument: see the discussion by the High Court of Australia in Project Blue Sky Pty Ltd v Minister (1998) 194 CLR 355. The context of clause 2.0 of Schedule 2 is one where a number of requirements are set forth. This is apt to be confusing. Generally a requirement is that which is required; a thing demanded or obligatory (Macquarie Dictionary, Third Edition). Sometimes a requirement is accompanied by the word must or the word should. Although the word must indicates obligation or necessity, the word should can also have this meaning. Depending on the context the word should may indicate obligation (I should visit my parents) or simply advisability (you should lock the car door when you get out). But whichever word is used, it is necessary to ascertain what was intended to be the consequences of non-compliance. I conclude that the failure to perform an obligation to provide information is not intended to invalidate a subsequent decision to approve a development.

[10] See, generally, clause 21 of the scheme which contains the City Plan for the City of Melbourne.

[12] Minster for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24, at 39-41.

[13] See my recent decision in Victorian National Parks Association v Southern Grampains Shire Council and others [2004] VCAT 20. This reasoning is also support by the decision of Balmford J in Hunnam v Evans [2003] VSC 284 at [22].

Sweetvale Pty Ltd v Minister for Planning [2004] VCAT 38 (12 January 2004)

Sweetvale Pty Ltd v Minister for Planning [2004] VCAT 38

At a glance

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Judgment (29 paragraphs)

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Cases Cited (5)

Sweetvale Pty Ltd v Minister for Planning [2004] VCAT 38 (12 January 2004)