Tee A & T Adis v Boroondara CC & Anor [1999] VCAT 2246

Mr Graeme Peake, barrister, appeared on direct instructions from his client Charnley Glen Pty Ltd. He presented written and oral submissions.

Fong Tee, Adrian Tee and Theo Adis, appeared in person. They presented oral argument and, except for Adrian Tee, also presented written submissions. Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s.82 of the Planning and Environment Act 1987 (PE Act) for review of a decision to grant a permit.

Application under s.80 of the PE Act for review of conditions in a permit.

At the time of the hearing the land was in a Camberwell Residential Zone under the then Boroondara Planning Scheme. The relevant zone controls were found in Clause 119 of that Planning Scheme. However, since the hearing a new Victorian Planning Provision based Planning Scheme has come into operation under which the zoning of the land has become Residential 1 Zone. The relevant planning provisions for that Zone under the new Planning Scheme are found in Clause 32.01.

"1. The proposal will encumber the objectives (sic objectors) right of vehicle access to 19 Albury Road, Balwyn North.

2. The resultant access will result in a potentially difficult and unsafe access to both properties.

3. The applicant has failed to obtain the consent of the objector and owner of 19 Albury Road to pave and carry out the work on the carriageway easement contained within the aforementioned property's title for the purposes of vehicle access to 17 Albury Road, Balwyn North.

4. The proposal will have a detrimental impact on 19 Albury Road as a common boundary fence cannot be erected.

5. The proposal fails to meet the objectives and intent of VicCode 1 and Council's Residential Urban Character Study.

6. The proposal is contrary with the orderly and proper planning of the area."

"1. Proposed 2 storey Unit Development is not in keeping with the area.

2. Proposed Development will set a bad precedence in the Boroondara area. Two double storey townhouses on a non-corner residential block. Up until now the council and residents have deemed such density and street traffic ONLY from corner blocks.

3. The council did NOT undertake due process. Adjoining neighbours raised several objections and these were not adequately addressed. Due process would have required a council meeting for objectors to have an opportunity of recourse and be heard by other members of the public and council.

4. Visual Bulk from the back of our property will be overpowering.

5. Issues of privacy are not adequately addressed.

6. Development does not meet minimum Boroondara Planning Scheme guide, as well as VCAT/VIC-1 Planning Guides.

7. Subdivision sought by the Developer as a means to get around the stricter guidelines for a 2 unit Development. Again this will set a bad precedence for the Boroondara area."

By consent an amendment was made to substitute Charnley Glen Pty Ltd as the Permit Applicant.

Furthermore, the time for the commencement of the application for review proceedings 1999/66882 was extended to the 25 August 1999. There had been a failure to commence that proceeding within time due to an oversight.

1. This case concerns a proposal to subdivide an almost rectangular allotment of residential land. It is, in fact, rectangular except for a strip of land 1.3m wide which extends back for 23.17m along the eastern boundary from the frontage to the northern side of Albury Road. That strip of land is on the title to the adjoining property to the east belonging to the Tees. However, the review site enjoys a right-of-way over that strip.

2. This minor anomaly is not important to the basis upon which I have decided this case. However, for the sake of completeness, I make the observation that its origins lie in the fact that the review allotment and that to its immediate east were once a single holding. The easement was created at the time of their separation to facilitate vehicle access.

3. The review site is now vacant. There was originally a single detached house on the land, but it has been demolished.

4. The site rises to the north from its street frontage. The property adjoining its rear (northern) boundary is the site of the substantial two storey house of Mr Adis. The house on the Adis property has a number of south-facing windows which overlook the review site. A recently constructed high paling fence along the common boundary substantially screens views from the appeal site towards the Adis property. This fence is, in fact, constructed on top of a retaining wall so that the top of the paling fence is considerably higher than the ground level on the southern, review site, side of the toe of the retaining wall.

5. The review site is one of a series of residential allotments along the northern side of Albury Road. It is known as 17 Albury Road and has neighbouring houses on either side at 15 and 19 Albury Road.

6. The proposal is to subdivide the site into two residential allotments of 362 and 386.9 square metres respectively. In giving this description of the proposal I am referring to the plan which was marked as exhibit P3 at the hearing. It is not the plan originally before the Responsible Authority of which notice was given. It is an updated version. Unfortunately the plan of which notice was given contains some errors in relation to proposed building envelopes denoted on it. (The idea of a building envelope is that it forms a 3 dimensional space within which any building would have to be constructed). The plan of which notice was given got its legend back to front, so far as single storeyed as compared to double storeyed portions of the envelope are concerned. That error is corrected on the P3 plan.

7. There are some other alterations not on the P3 plan compared to the one of which notice was given, including an increased setback of the building envelope for Lot 2 from the rear boundary from 3.5 to 4 metres.

8. At the commencement of the hearing Mr Peake sought an amendment of the application to substitute the P3 plan for the application plan on the basis that it corrected the error referred to and also because it shows the slightly modified proposal now being sought. When objections were raised to this proposed amendment he abandoned that application and said that he would invite me to grant a permit on the basis of the P3 plan if I thought that was preferable or justified. The proposed subdivision would create a Unit 1 of 362m2 at the front of the allotment with a frontage of 13m and a depth of 28m. This would leave the balance of the land to form a "battle-axe", or perhaps more accurately a "meat cleaver" shaped allotment to provide a house site on the rear portion of the land behind Unit 1. This Unit 2 of 386.9m2 would have a frontage of 2.24m to the north side of Albury Road. However, taken together with the right-of-way easement, this would provide a 3m wide driveway leading back to the main portion of Unit 2.

9. The proposed Unit 1 at the front would be rectangular in shape except for a splay taken of its north-eastern corner to facilitate access arrangements.

10. The P3 plan sets out building envelopes, contemplated as part of the proposed subdivision, for each of the units. The envelope for Unit 2 at the rear contemplates a two storey building set back by 4m from the rear boundary but with single storey elements extending to the eastern and western boundaries. At first floor level however the envelope prevents building within 2m of either of those boundaries.

11. In the middle of the site, between the two proposed building envelopes, there would be a space 9.24m deep. The boundary between the two units running through this space (excluding the splay and driveway areas) would be at 5.24m from the southern side of the Unit 2 building envelope and 4m north of the northern edge of the building envelope for Unit 1.

12. The Unit 1 envelope provides for a two storey building set back by that distance from the proposed boundary between the units, by 8m from the front street boundary, by 3.54 metres from the eastern boundary (for the purposes of which I have disregarded the easement portion) and 2m from the western boundary. The building envelope for Unit 1 contemplates single storey construction to the western boundary of 6.5m.

13. The P3 plan also depicts two proposed narrow garden beds along the "cleaver handle" driveway leading back to Unit 2. One of these beds, 0.54m wide, would be along the driveway between it and the building envelope for Unit 1. The other, 0.5m wide and 5.0m long is set in the right-of-way on the eastern side of the drive at the street frontage. It was suggested during the hearing that a condition to delete this second garden bed should be imposed on the basis that it would be more nuisance than it was worth. I agree with that contention and if I were granting a permit I would impose a condition to that effect.

14. Since the hearing the new Victorian Planning Provisions based Boroondara Planning Scheme has come into operation. The hearing was conducted on the basis of the previous Boroondara Planning Scheme. At the time of the hearing the new Scheme was expected. I propose to discuss the case in terms of the Planning Scheme as it stood at the time of the hearing with cross reference to equivalent provisions in the new Planning Scheme that now applies. The decision must, of course, be made on the basis of the current provisions. However, on my understanding of it, although there are changes to provision numbers and wordings, the provisions relevant to this case are the same in substance and each has its equivalent in the new Planning Scheme as compared with the old.

15. It is obvious, indeed it was not contested, that this proposed subdivision is to enable the review site to be used for two detached houses. I think this is a point of considerable importance.

16. The ultimate purpose of providing sites for two detached houses from this single allotment might be pursued in two different ways. The obvious, and straightforward, way would be to apply for a permit for the use and development of the land as a dual occupancy.

17. Dual occupancy is an expression used in the old planning scheme applicable at the time of the hearing. The definitions in the Regional Section of that planning scheme include the term dual occupancy. It is defined as follows:-

"Two dwellings on 1 lot that may be subdivided into 2 lots each containing a dwelling. It does not include a moveable dwelling unit."

18. No definition could more neatly fit the ultimate purpose being pursued by the Applicant in this case. This proposal is really aimed at achieving a dual occupancy within the meaning of that planning scheme.

19. Although that is the ultimate objective, it is not what was applied for. Rather the Applicant has sought a subdivision as an initial step in attaining that objective.

20. Having regard to the adverse comments that appear in a number of cases, and notably the High Court decision of Pioneer Concrete (Qld) Ltd v Brisbane City Council [1980] HCA 1; (1980) 145 CLR 485 and [1980] HCA 1; 44 LGRA 346 against the practice of piecemeal or partial applications in relation to a whole proposal, one might take the approach adopted to be suspect. Why should the Applicant seek mere subdivision as an initial step when the ultimate objective is a dual occupancy? I pose that as a rhetorical question, although the answer probably is that the Applicant perceives a tactical advantage in doing so. This matter is effectively raised in the seventh of the ground of review relied upon by Mr Adis where he complains:-

"7. Subdivision sought by the Developer as a means to get around the stricter guidelines for a 2 unit Development. Again this will set a bad precedence for the Boroondara area."

21. The situation which existed at the time the application was made, and at the time of the hearing, was that a detached house was an as-of-right use for which no planning permission was required in the zone pursuant to the zone controls in Clause 119 of the then applicable planning scheme. The table in Section 1 of Clause 119-1.1 sets out uses for which permission is not required and "Detached House" is one of them. The result is that, in the absence of any other particular restriction to the contrary, an allotment can be developed and used for a detached house without permission. The present review site can be used, as it was in the past, for a detached house without need of a permit. Furthermore, if the present site is subdivided into two allotments, provided that each of them exceeds 300m2 in area, then each of them will be able to be used for a detached house without a need for permission. That situation will be achieved in relation to each of the proposed new allotments if the proposed subdivision can be achieved. If the Applicant can once subdivide this allotment as proposed, then a dual occupancy would be achieved as of right and without need for a dual occupancy permit. This provides a means of avoiding the various amenity considerations which would apply to a dual occupancy application. Amongst other things it would avoid an assessment of what is really a dual occupancy against the considerations of the Good Design Guide for Medium-Density Housing.

22. As a matter of fact dual occupancy is also an as-of-right use in Section 1 of the table in Clause 119-1.1. No permission was required under that Clause for a dual occupancy. Nevertheless, Clause 21-5 of the Regional Section of the Planning Scheme provided:-

Unless specifically exempted by the scheme, a permit is required to construct two dwellings on a lot in the ... Camberwell Residential .. Zones ... ."

23. I do not regard the inclusion of the expression "dual occupancy" in Section 1 of Clause 119 as being a specific exemption by the Scheme for the purposes of Clause 21-5. There is no specific reference in Clause 119 to Clause 21-5. Clause 19 is merely a provision which does not require a permit for dual occupancy whereas Clause 21-5 is one that does. To comply with the Scheme permission is required under Clause 21-5, even though it is not required under Clause 119. On this basis a permit is required to construct two houses on the review site. The Good Design Guide mentioned above comes in by virtue of Clause 21 and specifically Clause 21-1. The purpose of Clause 21 includes the following:-

"To ensure that the use or development of land for medium-density housing is in accordance with The Good Design Guide for Medium-Density Housing, Revision 2 (the Guide) ...".

"Unless specifically exempted by the planning scheme, the Guide applies to land in an Urban Zone ... where a planning permit is required for any of the following:-

v The use or development of 2 or more dwellings on a site, ...".

25. It is thus a policy of the planning scheme, as it stood at the time of the application and hearing, that the Good Design Guide should be used in the assessment of a dual occupancy proposal for this site. The Good Design Guide is quite an elaborate and sophisticated document directed at many important issues in relation to the preservation of the amenity of the locality where medium density housing is proposed and, indeed, in relation to the amenity of such housing itself, when it is proposed.

26. In such dual occupancy and other medium density housing cases one often hears an argument that something, which would be detrimental to amenity, should be permitted because it would be allowable as-of-right if the proposal was for a detached house rather than a dual occupancy. People argue that they should be able to have buildings of excessive height, excessive bulk, excessive closeness to boundaries and that over-dominate nearby properties and intrude in terms of overlooking and overshadowing, because all these things might be done by constructing a very large two storey detached house. It is often perfectly true, in those cases, that a very large detached house that did all those things could be built, as-of-right and without need for a permit. That would not mean that such a house would not have serious detrimental effects on the amenity of the area and/or of neighbouring properties. It just means that such detriment can be imposed because of lack of planning controls in that situation. I have never thought that circumstance provides a good reason for disregarding those amenity considerations in relation to a dual occupancy that does require a permit pursuant to which all those amenity considerations then become relevant. As I have said, the Good Design Guide provides a sophisticated and elaborate document to assist in guiding such discretion as to whether such a permit should be granted.

27. If this were an application for a dual occupancy permit, these various considerations would all be in issue and would have to be assessed, amongst other things, on the basis of the Good Design Guide. If a dual occupancy permit was granted and a dual occupancy was subsequently constructed pursuant thereto, then the review site would be able to be subdivided without the need of a planning permit so as to provide a separate site with a separate title for each of the houses.

28. This proposal seeks to go about achieving a dual occupancy by going the other way around. It seeks a subdivision required by Clause 119-2. The exemption from requiring such a subdivision permit in the case of a dual occupancy provided for in the fourth paragraph under Clause 119-2 does not apply in present application because it does not purport to be for a dual occupancy. The strategy is that, having obtained the subdivision, what is really a dual occupancy has also been achieved. Two separate detached houses can be built on the two separate allotments with no planning permission being required. All the amenity issues, and the Good Design Guide itself, are thus effectively avoided in a situation where they are intended to apply.

29. The only thing standing in the way of this clever strategy is the need for a planning permit to subdivide the land. That is the matter that is now before me.

30. In considering such an application it is appropriate to consider the planning implications and ramifications of a grant of the permission sought. That is probably true of any decision on an application for a planning permit. It is certainly true of this one. One does not merely regard the proposed subdivision as lines on a plan without regard to its effect and what it enables and what effect it would have on the achievement of planning policies and purposes.

31. I would have thought that the above proposition was obvious and based on sound principles without any need to refer to authority, but it is supported by decisions of the Tribunal including Craighill Nominees Pty Ltd v City of Boroondara & Ors [1996] 17 AATR 109, Peters v Shire of Cranbourne [1991] 9 AATR 67, McHugh v Shire of Eltham & Ors (unreported Appeal 1990/38738), Escourt v Shire of Barrabool & Ors (unreported Appeal 1991/09998) and Cusmano v Thorpe & Shire of Eltham (unreported Appeal No. 1992/17949 but noted at 9 AATR 198). The latter four of those cases are referred to on page 113 of the reasons in the Craighill case. Ironically the Craighill decision is relied upon by Mr Peake to justify the course followed by his client in the present case, but I rely on the following passage which commences with the first full paragraph on page 113. I refer particularly to the extract that I have embolden after the reference to the Escourt case.

"That fundamental approach to subdivision and development has been modified in more recent times where the Tribunal has been concerned to maintain a nexus between subdivision and development, rather than see them as separate and unrelated acts. There are several cases of direct relevance which were identified by the responsible authority and Mr. Goyen. In Appeal No. 1991/35125 Peters v Shire of Cranbourne 9 AATR 67, the relevance of use and development after subdivision was discussed. At page 72 the Tribunal said:

"I do not accept the argument based on Veasey that "subdivision, use and erection of buildings and works are three distinct elements of the planning process". A number of unreported decisions since the Veasey determination have made that point effectively. I refer to two of these cases as examples. The first is McHugh v Shire of Eltham and K G Goodeson and Associates (1990/38738) determined by Member Liston, 12 April 1991 and Escourt v Shire of Barrabool and Wood and Brockbank (1991/09998) determined by myself 12 December 1991. The relevant extracts are as follows:

"Subdivision in most instances takes place to facilitate the development and use of the land, and it would be both artificial and unsatisfactory to consider the issue of subdivision without proper regard to the consequences of the use and development which would spring from the subdivision.

This Tribunal is of the view that the future use and development of the land must be the primary consideration in applications for subdivision. The Responsible Authority and the Tribunal must be satisfied that the land is capable of being developed and used in accordance with the implication of the subdivision."

The responsible authority and objectors also relied on the determination of the Tribunal in Appeal No. 1992/17949 Cusmano v Thorpe & Shire of Eltham (noted at 9 AATR 198) in which the Tribunal said:

"...it is not possible to totally divorce subdivision from development and support for this proposition is to be found in Clause 16.2 of the Planning Scheme...In addition... it seems clear that there is need to have some regard to the possible development at the time of considering the subdivision in order to satisfy the purpose of the zone."".

32. In my opinion there is a strong reason based on sound principle for refusing the current application. There is an equally legitimate, if not more legitimate, means of attaining a dual occupancy on the site by applying directly for permission for such dual occupancy. When one considers the consequences of granting this proposal in its present form it is found that it defeats the purposes of sound planning. It avoids consideration of the various important amenity issues that should be applicable, including a consideration of the Good Design Guide. It enables the Applicant to get into the position, like that enjoyed by the notional excessive two storeyed detached house, where it can impose unreasonable and inappropriate amenity detriments on the surrounding area and neighbouring properties. Not only that, but it enables that freedom to be achieved in relation to two double storey detached houses which, considering the site in its present form, are really a dual occupancy. It avoids consideration of the Good Design Guide which is intended to apply to a dual occupancy. It seems to me to be a means of defeating the policy of the planning scheme insofar as it is expressed in the purpose of Clause 21 and also of the specific requirement in Clause 21-1 that the Good Design Guide should be applied.

33. It also means that the Applicant can get into a position of carrying out a dual occupancy that might have very detrimental effects without having to formulate a specific proposal for a dual occupancy in terms of the sort of plans and specifications that would ordinarily be required. It is very difficult, indeed it is impossible, to know quite what might result if the permit sought were to be granted in the present circumstances.

34. All this amounts to strong basis for why this proposal ought to be refused.

35. It will be noticed that I have argued all this on the basis of the planning scheme that applied at the time of the application and the hearing. However, the situation is not different under the new planning scheme. In saying this I am making the assumption that the intended zoning under the new planning scheme, that is to say, Residential 1 zoning, has in fact been realised. The new planning scheme does not use the expression dual occupancy, but the same effect is achieved in Clause 32.01 which contains the zone provisions for the Residential 1 Zone. The equivalent table of uses in Section 1 of Clause 32.01-1 provides that dwelling (other than bed and breakfast) is a use for which no permit is required. However, Clause 32.01-4 specifies that a permit is required, amongst other things, to construct two or more dwellings on a lot. That, for present purposes, is effectively the equivalent of Clause 21-5 of the Regional Section of the old planning scheme that I have been referring to. Its effect is that a permit is required for the construction of what was previously called a dual occupancy.

36. Clause 32.01-4, under a subheading reading "Application requirements", goes on to provide that an application for such a permit must be accompanied by a site analysis and a design response as described in Clause 52.04 and the Good Design Guide for Medium-Density Housing Revision No. 2 April 1998. Furthermore, the decision guidelines provide that before deciding on an application the Responsible Authority must consider, as appropriate, the Good Design Guide for Medium-Density Housing Revision No. 2 April 1998 and any local variation incorporated in the scheme. These provisions in Clause 32.01-4 are thus the equivalents of Clause 21-1 and the purpose to Clause 21 of the Regional Section of the old scheme.

37. I might add that the old Clause 119-2 requiring permission for subdivision has its equivalent in Clause 32.01-2 of the new scheme. If this application were made under that provision all the same considerations that I have set out above would apply by virtue of Clauses 32.01-1 and 32.01-4.

38. I have mentioned Mr Peake's reliance on the Craighill Nominees case. That was similar to the present case in that it involved a subdivision and what appears to have really been a dual occupancy proposal in this same Camberwell Residential Zone. The member who heard the Craighill Nominees case in fact granted a subdivision permit notwithstanding objections that this avoided the Good Design Guide and a proper assessment of a dual occupancy proposal. In discussing the question the Tribunal, on page 112, referred to a previous decision of the same member in Simmonds & Tindale v City of Kingston & Ors, Appeal 1996/10891. It was said of that case (on page 112):-

"The parties raised quite similar arguments to those in this appeal with the responsible authority and the objectors claiming the proposed subdivision was merely preventing a proper assessment of development which would occur if a dual occupancy had been applied for rather than subdivision. The applicant argued that what was proposed was not in conflict with the planning controls and the building envelopes provided adequate devices and safeguards as to the form of development."

39. In this present case it is argued that building envelopes, together with various conditions and possibly a Section 173 agreement could so cumber around the allotments created as to "provide adequate ... safeguards".

40. That is all very well if the Responsible Authority or the Tribunal can be satisfied that adequate safeguards can be achieved by such means. I assume that the Tribunal was so satisfied in the Craighill case, and in a couple of other cases cited to me as having followed Craighill. That is cold comfort where the Tribunal is not satisfied, as I am not, that such devices as building envelopes, conditions and 173 agreements can, in the present case, provide adequate safe guards and adequately ensure achievement of the policies and purposes of the planning scheme and a good planning result in terms of amenity and generally.

41. I therefore distinguish Craighill, and the other cases cited as having followed it namely Derrick Wilson & Ors v City of Bayside 1997/41462 and Peter Richards Surveying v City of Moonee Ponds, Burns & Ors 1998/79500 on the basis that the Tribunal in those cases was able to be satisfied that such devices as building envelopes and conditions and 173 agreements could adequately safeguard the situation.

42. As a matter of fact, it is recorded in the middle of page 112 of the Craighill reasons that in the Simmonds case the Tribunal had before it a detailed proposal for a dwelling on one of the sites and details of a building envelope on the second lot. In Simmonds there were various detailed design specifications and the Tribunal said that the proposal met the concerns of the objectors to some extent although it recognised that the subdivision was enabling avoidance of the Good Design Guide. It said:-

"The Tribunal considers that is the effect of subdividing prior to development but can see it is a legitimate process and that the opportunity provided to require building envelopes and a development plan puts restrictions on what can be built after subdivision that would not otherwise be present. The Tribunal considers such restrictions are appropriate given that the subdivision pre-supposes residential development at a higher density than on adjoining land."

43. This approach might be "legitimate" in the sense that it is not illegal. The planning scheme certainly allows detached houses on separate allotments, whether or not they are detrimental to amenity or offend the Good Design Guide. Once there is a separate allotment, provided it is over 300m2 in area, there remains no legal planning restraint and it is then both legitimate and legal to erect a detached house contrary both to amenity considerations and the Good Design Guide. That does not mean that it is a proper exercise of discretion to grant a permit to create that situation where such adverse results will eventuate. Building envelopes etc might provide restrictions that would not otherwise be present if they were not imposed, but they are an inadequate control compared with the need for a permit for dual occupancy with a consideration of the amenity affects of an actual proposal that can be assessed on the basis of its plans and specifications, including an assessment of it against the Good Design Guide.

44. Mr Peake also relied on the following passage appearing on page 116 of the Craighill case:-

"The Tribunal finds that the Guide is not relevant to this subdivision and agrees, in principle, with the determination of the Tribunal in the Simmonds appeal. Thus the process must be said to be a legitimate one; a fact acknowledged by the other parties. Whether it is considered to be desirable is a matter for the Responsible Authority to pursue if it is concerned. The Tribunal's analysis leads it to the conclusion that what is proposed is envisaged by the planning controls. It may be that the planning controls do not reflect, in a total way, the concerns identified by the Panel which reviewed VicCode 2 [forerunner of the Good Design Guide]; the Tribunal is not in a position to say. In any event, it is the planning controls which now apply that must be considered in relation to this application."

45. I have already discussed the way and the extent to which this manoeuvre can be said to be "legitimate". I do not say that it is illegitimate or illegal, if you can get away with it. What I do say is that it is a legitimate and proper exercise of the discretion as to whether to grant a subdivision permission in these circumstances to take account of whether the grant of such permission will defeat sound planning for the area and the achievement of planning policies and principles (including policies specifically provided for in the planning scheme), and that it would be wrong to grant such a permit or to close ones eyes in doing so to the consequences it would enable, as-of-right.

46. I do not know whether it is correct to say that the planning controls have "envisaged" this manoeuvre. They certainly allow detrimental development if it is for a detached house on a single allotment. It is only "envisaged" inasmuch as it is allowed if an applicant can obtain the foundation subdivision permission. I do not accept that the planning controls envisaged open slather in this respect, without serious consideration as to whether such foundation permission should be given. Such consideration must take into account all the consequences and ramifications.

47. In the Wilson and/or Richards cases cited as following Craighill it was suggested that a legislative remedy should be sought if the Craighill result is thought to be unsatisfactory. I do not see such intervention as being necessary, inasmuch as control is retained by the discretion to grant or refuse the foundation subdivision permit. I think that the relevant considerations to the grant of such a permit are wide enough to retain adequate control and to prevent bad development and circumvention of the Good Design Guide and the policy considerations that call for it to be taken into account.

48. It is not even demonstrated that legislative intervention would be required in relation to the Craighill, Wilson or Richards situations inasmuch as the Tribunal was apparently satisfied in those cases that the building envelope and conditions controls were adequate in the circumstances of those particular cases.

49. Mr Peake also referred me to the report of a panel constituted pursuant to s. 153 of the Planning and Environment Act in relation to Planning Permit 1145/98 to the City of the Stonnington as to 534 Orrong Road, Armadale. The reasoning in that report does not dissuade me in any way from the views I have reached in relation to the present case. That is in spite of the fact that it dealt with a similar question. I note that in the middle of page 10 of the report the Panel observed that:-

"... the existing and proposed Planning Schemes allows the Responsible Authority to consider an application for a permit for subdivision, without the need for accompanying development plans or the like."

50. That is true enough. There is nothing to stop a consideration of the application and, if necessary, a rejection of it.

51. The gist of the issue in the Panel case appears to have been that the Responsible Authority sought plans and specifications as to the proposed development where it was confronted with an application for a subdivision but with no indication of the development it would allow. The Panel found that the request for this further information was inappropriate in the absence of an adopted policy or planning provision relating to subdivision. It even went so far as to say that the request was inconsistent with the provisions of the Planning and Environment Act. It said:-

"It became clear at the Panel hearing that the concerns of the Council and the objectors related more to the ultimate development of the site rather than the subdivision itself."

52. I cannot see that it was not entirely proper to have regard to the ultimate development that the subdivision would enable. As I have said, a consideration of the subdivision itself does not, in circumstances like these two lot dual occupancy subdivisions situations exclude a consideration of the development it envisages and enables. Without deciding the point here, I do not necessarily agree with the Panel that it was inappropriate, in that case, for the Responsible Authority to have sought information on the proposed development.

53. Mr Peake also referred me to a recent decision of Greenhill Homes Pty Ltd v City of Moonee Valley, Ferwerda & Ors [1999] 3 VPR 28. That is a very interesting case where the Tribunal declined to accept an ingenious strategy implemented to avoid a proper planning assessment of what was, in reality, a dual occupancy proposal. There is an interesting discussion of these matters under the subheading "Circumventing the Planning Controls" commencing on page 31. There is reference to the Craighill decision and an observation that nobody is suggesting that the developer in the Greenhill case had acted in an illegal manner. There was a suggestion that the manoeuvres undertaken in that case might be compared to those of a tax avoider where the avoidance measures were legal. It was said that it was wrong to stigmatise them, or the applicant in that case "for simply exercising entitlements which the planning system gave to it".

54. I am not stigmatising or making a decision on the basis that I think the Applicant deserves a stigma. I am merely exercising a duty and responsibility that the planning system casts on me. In the Greenhill case the members made reference to there being much to be said for the course that had been carried out being regarded as a sham. However, I do not think it is necessary for me to discuss that case in any further detail for the purposes of deciding the one now before me.

55. It appears that the Responsible Authority in the present case may have been of the view that it was obliged to grant a permit and that it should therefore fall back on reliance upon building envelopes, conditions and 173 agreements supported by the sought of policy mentioned by the Panel in the report referred to. This appears to be the purpose of its Residential Land Subdivision Policy, which was referred to in the hearing before me and tendered as exhibit T5, was created for this reason. This approach has apparently led the Responsible Authority to resolve to grant a permit but with an attempt to control the result by the imposition of building envelopes and conditions. Mr Peake would say an adequate attempt to achieve these things. To this end it is sought to impose a condition which reads in part:-

"4. Unless otherwise agreed in writing by the Responsible Authority, prior to certification, the owner of the land at 17 Albury Road, North Balwyn must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987 to the satisfaction of the Responsible Authority and such agreement shall require that:-

(a) No buildings shall be erected on the area of land hatched on the plan endorsed pursuant to Planning Permit No. BOR 98/583.

(b) Any dwelling constructed on either lot shall comply with the requirements of Elements 2, 3 and 4 of the Victorian Code for Residential Development - Subdivision and Single Dwellings (Vic Code 1).

(c) The minimum front setback for the house and any associated garage/carport on lot 1 shall be 8.0m.

(d) Any dwelling constructed on either lot shall comply with the relevant requirements of Element 6 (Building Envelope) and Element 7 (Visual Acoustic Privacy) of the Good Design Guide for Medium Density Housing.

(f) Front fence detail to be transparent type fencing.

(g) The overall residential floor area shall not exceed 1.5 times the building footprint (ie ground floor area).

A memorandum of the Agreement is to be entered on title and the cost of the preparation and execution of the Agreement and entry of the memorandum of title is to be paid by the owner."

56. I think that the clumsiness of this contemplated arrangement demonstrates how unsatisfactory it really is. It tries to impose a lot of conditions suitable to a permit for development in form of buildings and works. They would be better placed on a permit for such development. It would not be possible, in my opinion, to draft a satisfactory agreement pursuant to condition 4. In particular, sub-conditions (b) and (d) demonstrate the impossibility of this approach. It is proposed to have a condition or a 173 Agreement requiring compliance with "the relevant requirements" of Vic Code 1 and the Good Design Guide, but that notion merely implies a failure to understand the purposes and effect of those two documents. They do not contain prescriptive "requirements", therefore it is not sensible to try and impose a condition requiring compliance with non-existent requirements. Both these documents are non-prescriptive so-called "performance based" guides. There are no prescribed requirements and it always a matter of opinion whether a particular proposal meets specified objectives. A condition or a 173 Agreement framed in this way will be too vague to be effective, or even valid.

57. These guides recognise that something which meets their various guidelines might nevertheless be unacceptable and that something that does not comply with specified techniques might nevertheless be approved, if it is judged to achieve the required objectives.

58. The whole exercise of trying to achieve a satisfactory development by indirect and non-specific devices like building envelopes and negative conditions is very difficult in the absence of a specific proposal as would be required for a dual occupancy application. One is called upon to try and imagine what is not specified, and to provide again all adverse eventualities. It is better to have a specific proposal and to assess it and then approve or not approve it as appropriate, with or without modifications. It is better to deal with something specific rather than to try and weave a mesh of controls and restrictions around the unformed possibility of a project. Important aspects are all too likely to be overlooked. In an abundance of caution restrictions might be unduly severe and the performance based approach would be lost.

59. One of the objectors in this case complained that the proposal would enable developments of undue bulk. The building envelopes provide some basis for assessment, but it is really very difficult to adequately assess a proposal that has not been formulated. It seems to me legitimate for the objector to be apprehensive when he has no specific proposal that he can assess. Perhaps he is not really in a position to say whether the as yet unformed proposal will be of excessive bulk, etc., but he is called upon, at least, to embark upon a highly abstract conceptual exercise which is realistically likely to be beyond the scope of most objectors, indeed perhaps beyond most people generally including town planners and Tribunal members.

60. I do not suggest that a 3 dimensional model will usually be necessary or required. Parties and Tribunal members can usually be called upon to read and interpret plans, but here there are no plans for the ultimate developments and we are called upon to deal with intangible and unformulated possibilities. This is not only hard to do but it becomes very hard to be confident of the results of such an exercise.

61. As I have said, it may be satisfactory, in some cases, where the Tribunal is content to proceed on the basis of building envelopes and conditions, but I am not satisfied with those devices in this case. It seems to me to be like pushing a bucket with a flail. The selected instrument is ineffective because it wobbles too much at the joint.

62. Such a task might have to be undertaken if there was no option, but here there is a better and much more satisfactory option namely to refuse the planning permit on the grounds I have indicated.

63. I might add that any assessment of impact on streetscape and neighbourhood character would be pretty difficult with nothing more than building envelopes to proceed upon.

64. I do not mean that by all this that building envelopes are not a useful device for some purposes. Merely they are inadequate here.

65. Thus I am not satisfied, as the Tribunal has apparently been in some other cases, that building envelopes and conditions are a satisfactory answer. For the reasons I have given, I have decided that this application should be refused.

66. There were other specific issues raised by objectors. In the circumstances I do not need to deal with them in detail. I am not impressed with Mr Adis' complaints about overlooking or invasion of his privacy. I think those matters can be adequately dealt with by endorsed plans and conditions.

67. There was concern about access arrangements and the use of the right-of-way, so far as the Tee property is concerned. I think the neighbours regret the existence of the right-of-way, but it does exist and I think it is entitled to be used. I am not impressed with the allegations of unsafety in relation to the access. Having regard to the small number of vehicle movements involved, sensible conduct, a proper look out and ordinary courtesy would obviate problems. It is true that the access arrangements do not allow for a fence between the neighbouring properties at the front of their common boundary, but that is the situation at present. There never has been such a fence and the right-of-way makes one impractical unless the Tees decide to construct a fence on their side of the easement. The present situation so far as fencing has been accepted to date, and the current proposal would not afford a justifiable opportunity for the Tees to impose a change in that respect.

68. I reject the suggestion by Mr Adis that dual occupancies are only acceptable on corner blocks. There is an obvious advantage with a corner block in that it can afford a street frontage for each dwelling, but that is not an essential.

69. Mr Adis raised concerns about the procedures followed by the Responsible Authority in its handling of the application. As stated during the hearing, those matters are not relevant to my task. I am to review the decision reached by the Responsible Authority on its merits rather than its proceedings. As long as I deal with the procedures in the case before me in a proper fashion and in accordance with fairness, it is not to the point for me, in a review application like this one, to spend time examining the procedures of the Responsible Authority.

70. Because I propose to allow the Objectors' application for review, it becomes unnecessary to determine the Applicant's application for review of conditions.