Victorian Civil and Administrative Tribunal|2003-12-19|Before: Stuart Morris J

Taras Nominees v Yarra CC [2003] VCAT 1952 (19 December 2003)

Requirement for the provision of further information - circumstances where justified - further information sought not proportionate to application

2 I direct the responsible authority to consider the application as it is currently made.

3 I refuse the application of costs by the applicant.

REASONS (given orally at the hearing and subsequently revised)

1 Section 47 of the Planning and Environment Act provides that an application for a permit must be made in a certain way and be accompanied by certain information. The required information is sometimes insufficient to enable a responsible authority to consider whether or not to grant a permit. Hence it has become common practice for permit applicants to accompany their applications with a planning report, or visual information, to enable the proposal to be assessed.

2 But not every application contains sufficient information. For that reason section 54 of the Planning and Environment Act provides that a responsible authority may require the applicant to provide more information before the authority deals with the application. This is a provision which has become increasingly used in recent years. Sometimes responsible authorities seek information under section 54 when they are really seeking to have the application changed. That is an impermissible use of section 54.

3 Also, from time to time, some responsible authorities seek voluminous information under section 54. Whilst the provision does not prevent such a request being made, it is necessary, in my opinion, that requests for further information be proportionate to the development or use under consideration. If a request is not proportionate, then the tribunal in its discretion will alter the requirement and direct the responsible authority to consider the application on the basis of the information currently before it.

4 There has also been a tendency for requests for further information to be made some 27 or 28 days after the date of the lodging of the application. This strategy might be thought to be designed to give responsible authorities more time in which to consider applications before the permit applicant has a right to appeal against failure to decide. Whilst the burden placed on responsible authorities is considerable and growing, it is desirable that a preliminary assessment be made of any application promptly after it is lodged, preferably within one week, and for any requests as for further information to be made within that time frame. This is desirable because it is in the interests of the community to have better decisions faster.

5 Turning to the matter under consideration in this case, I have examined the information submitted with the application, the initial request made by the council, the response to that request and the council's rejoinder. Looked at globally, this application has been accompanied by extensive information. Nonetheless it is necessary to consider the particular matters that have been raised in order to ascertain whether the request should be confirmed, varied or changed.

6 Turning first to the request for a more detailed ESP report, I note that the architectural drawings and the planning report which accompanied the application provide information about environmentally sustainable development features that are proposed to be used in the construction of the building. Further, the letter from Urbis dated 10 October 2003 elaborated these. It is not for me to decide whether the building will satisfactorily incorporate ESD principles; rather it is necessary to determine whether the information that has been provided is sufficient to enable a decision to be made. I am satisfied that the information is sufficient. In reaching my conclusion, I make this observation. If environmentally sustainable design is to be incorporated into buildings, this should be required by the building regulation system and not be principally required by the town planning system. The reason for this is that, if environmentally sustainable design is important, as I believe it is, it ought be incorporated in all buildings, regardless whether those buildings require a planning permit or not. The vast majority of buildings which are erected in Victoria each year do not require a planning permit. Hence the principal approach for ensuring environmentally sustainable development must be by way of the building control system.

7 Council then asked for an economic impact statement. This is met by the response that the proposed use, namely an office, is as of right. I think there is another answer to this request. When the proposed office is considered in context of the Melbourne metropolis (as it must be), it is not so significant a building that a realistic economic impact assessment could be prepared. The building would be a very small drop in the ocean of office buildings in the relevant market, which is the whole metropolis. Any impact assessment about this suburban office building is likely to be a Mickey Mouse study. I do not uphold this request.

8 The next request related to an assessment by reference to a proposed local policy. I am satisfied that the information that has been provided is quite sufficient to conduct this analysis, if, indeed, it is relevant.

9 Next it is said that there should be information provided about the possible contamination of the subject land. There is no specific evidence to show that the land may be contaminated. Further, the proposal does not involve any use which is designated as a sensitive use. Although I do not confirm that requirement, I agree with the council that this is a matter which should be considered by the developer. However there is insufficient material to justify the requirement.

10 Finally a 3D computer generated model was sought. Information which now accompanies the application includes extensive montage material, based on computer models, which provides sufficient basis for consideration of visual impact of the proposal. A further 3D computer generated model might provide more angles, but these are not proportionate to the application.

11 Mr Townshend asked for an order that the council pay the costs of today. I have found that the request for further information should not be sustained. But it does not follow that the council's conduct has been so unreasonable that it justifies a departure from the general rule in relation to costs. In the circumstances I will not exercise my discretion to award costs.

Taras Nominees v Yarra CC [2003] VCAT 1952

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Taras Nominees v Yarra CC [2003] VCAT 1952 (19 December 2003)

Parties