Victorian Civil and Administrative Tribunal|2005-08-18

Thomas v Macedon Ranges Shire Council (Red Dot) [2005] VCAT 1713 (18 August 2005)

Planning; Planning and Environment List; Wildfire Management Overlay; need for permit thereunder; exception to the need for a permit thereunder; ambiguous wording of exception; interpretation of ambiguous wording [paragraphs 8-10 of reasons below].

Statutory provision referred to, clause 44.06-1 of planning scheme in relation to Wildfire Management Overlay containing exception in the following terms:

For interpretation see paragraph 10 of reasons below.

An irregularly shaped piece of land with an area of 257 hectares (640 acres).

A. This application for review is granted. A permit is granted for the construction and use of a third dwelling on this land with associated works, including earthworks, a driveway, a swimming pool and tennis court. Permission is also granted to the use and illumination of the tennis court and for any incidental removal of grass necessitated by the buildings and works hereby permitted. The buildings and works are to be in accordance with the endorsed plans hereafter provided for and subject to the following conditions.

1. Before the development starts amended plans must be submitted to and approved by the responsible authority. The plans are to be drawn to scale with dimensions and three copies are to be provided. When approved, the plans will be endorsed as evidence of their approval, and they will be the endorsed plans in relation to this permit. The plans are to be generally in accordance with the plans submitted with the application, but modified to include a schedule of all proposed materials, colours and finishes.

2. All development hereby approved must be in accordance with the plans endorsed under this permit. The layout, materials and colours of the development shown on the endorsed plans must not be altered without the prior written consent of the responsible authority.

3. At all times during construction the applicant/owner must restrict sediment discharges from any construction sites within the property, in accordance with Construction Techniques for Sediment Pollution Control (EPA 1991) and Environmental Guidelines for Major Construction Sites (EPA 1995).

4. Before the new dwelling is occupied the dwelling must be fitted with a package wastewater treatment plant to a design to the satisfaction of the responsible authority and must be operated, maintained and replaced where necessary to the satisfaction of the responsible authority.

5. Any tennis court lighting system must comply with the "Residential Tennis Court Lighting Code" produced by the Tennis Court Builders Association of Australia.

6. The method of construction of the tennis court must comply with the "Guide Specifications for Tennis Court Construction" produced by the Tennis Court Builders Association of Australia.

7. In accordance with the recommendations of the land capability assessment undertaken by PEJ Consulting in February 2005, their report no. 0712204, all wastewater from the proposed dwelling must be treated to a standard of at least 20mg/L BOD, 30 mg/L suspended solids using a package treatment plant or equivalent. The system must be Environment Protection Authority (EPA) approved and installed, operated and maintained in compliance with the relevant EPA Code of Practice and Certificate of Approval.

8. The wastewater disposal area must be located at least 100mm from the nearest waterway.

9. The wastewater disposal area must be kept free of stock, buildings and driveways and must be planted with appropriate vegetation to maximise its performance and stormwater must be diverted away from it.

10. This permit will expire if the development hereby permitted is not commenced within two years or completed (and the uses commenced) within four years of the date of this permit. A written application may be made to the responsible authority for the extension of the permit prior to the permit expiring or within three months after the expiry of the permit.

B. The Responsible Authority is directed pursuant to Section 85(1)(b)(ii) of the Planning and Environment Act 1987 to issue a permit in accordance with Order A above.

_________________ _______________

RUSSELL BYARD CHRIS HARTY

SENIOR MEMBER MEMBER

Mr N Gorman, Town Planner, of Big Picture Urban Rural, appeared for the Responsible Authority.

Mr N Crawford, Solicitor, of Best Hooper Solicitors, appeared for the Applicant, Jon Thomas.

There is no appearance by or on behalf of the Objectors.

The representatives who did appear presented oral submissions, and Mr Crawford tendered a written submission.

Application under s.79 of the Planning and Environment Act 1987 ("PE Act") for review of the failure of the Responsible Authority to grant a permit within the prescribed time.

Construction and use of a third dwelling on the property, with ancillary works including driveway, swimming pool and tennis court, use and illumination of the tennis court and consequential removal of grass.

Environmental Rural Zone and subject to an Environmental Significance Overlay (Schedule 4), a Significant Landscape Overlay (Schedule 2) and a Wildfire Management Overlay under the Macedon Ranges Planning Scheme.

1 This case concerns a proposal for the erection and use of a third dwelling on the substantial farm property constituting the review site. Permission is also sought for ancillary works such as earth works to "bench" a site for the house on a hillside, a driveway, swimming pool and associated domestic tennis court. Planning permission is required for the use and illumination of the tennis court. Furthermore, a limited amount of removal of vegetation, constituted by grass, is inherent in the buildings and works proposed. Permission is required for the removal of such vegetation.

2 The review proceedings were commenced because the Responsible Authority failed to make a decision on the application within the prescribed time. Ms Chris Litchfield and Mr Marcus Ward, who live on adjoining land, became aware of the proceeding and sought to be parties. However, at that stage they were not aware of the details of the proposal. It appears that their notification of interest was precautionary in case, upon investigation, they found that they wished to oppose the proposal. In the event they did not appear at the hearing. Mr Crawford, who appeared for the Applicant, Mr Jon Thomas, informed us that he had been in touch with Mr Matthew Townsend, Barrister, who had appeared for Ms Litchfield and Mr Ward in previous proceedings between the same parties and concerning the same review site. The message from Mr Townsend, through Mr Crawford, was that Ms Litchfield and Mr Ward would not appear and would not be represented. We assume from this that they do not wish to oppose the proposal.

Attitude of Responsible Authority to Proceeding

3 The Responsible Authority has ultimately determined that it supports the proposal, subject to the imposition of suitable conditions.

4 This left us with no party opposing the grant of a permit, but just with some matters to be clarified as to the nature and extent of planning permissions required to enable the proposal to proceed, and for the clarification of some points in relation to proposed conditions.

Referral to CFA under Wildfire Management Overlay

5 Mr Gorman made reference to the position of the Country Fire Authority ("CFA"). Notice of the application was given to the CFA by Best Hooper Solicitors acting on behalf of Mr Thomas. A reply was received from the CFA saying that it had no objection to the proposal. The solicitors then sent a copy of that letter to the Responsible Authority. Apparently something in the letter aroused concern at the office of the Responsible Authority as to whether the CFA may have misunderstood what was being referred to it, and may perhaps have responded in relation to a different proposal. The Responsible Authority therefore sought clarification, and it did appear that the CFA was really responding to one of the other proposals in relation to the land.

6 This circumstance led us to consider the application of the Wildfire Management Overlay provisions in the planning scheme to the current proposal. There is a Wildfire Management Overlay applicable to some of the review land, but not all of it. The site chosen for the construction of the actual house now proposed lies close to, but outside the Wildfire Management Overlay area. However, some earthworks to create a flat site for the house and its immediate surrounds do encroach slightly into the Wildfire Management Overlay area. It is proposed that there should be some "cut and fill" earthworks, cutting back into the hill at the rear of the house, and filling in the front part of the site, so as to achieve a flat platform for the house to stand upon. It is convenient, in these circumstances, to extend the flattened area around the walls of the house to some extent. It is this extended area that protrudes into the overlay.

Need for Permit under Wildfire Management Overlay

7 Technically the overlay provisions require permission and referral to the CFA if buildings or works are to be constructed in the area subject to the overlay. It is obvious enough in this case that the principal structure, namely the house, is outside the overlay area, and it is only associated earthworks, to provide a flattened area, that extend into the overlay area. In other words, the works that so intrude are not a structure or facility likely to independently attract people. On the contrary, it is the house that will be occupied and that will be the point where people will live or visit.

8 The requirement for a permit under the Wildfire Management Overlay arises pursuant to Clause 44.06-1 of the planning scheme. That provides that a permit is required to construct a building or construct or carry out works associated with various uses including "accommodation". However, that requirement is subject to several exceptions. One of them provides that the permit requirement does not apply to:

A building or works with a floor area of less than 100 square metres ancillary to a dwelling not used for accommodation.

9 This sentence appears to us to contain some unfortunate wording. Does the expression "not used for accommodation" at the end of the sentence apply to the word "dwelling" that appears immediately before, or does it apply to the expression "A building or works" at the beginning of the sentence? There is a degree of ambiguity here.

10 However, we consider that the correct interpretation is that the expression "not used for accommodation" applies to the buildings or works with a floor area of less than 100 square metres, rather than to "dwelling". There is not much sense in a dwelling not used for accommodation. Accommodation is the very purpose of a dwelling. We interpret the sentence as meaning that the exception applies to a building or works not used for accommodation with a floor area of less than 100 square metres that is ancillary to a dwelling. This interpretation gives a sensible meaning to the relevant words.

11 We note, by the way, that the determination of legal questions in this case is the responsibility of the presiding member who is a legal practitioner.

Exception Means Permit and Referral under Wildfire Management Overlay not Needed

12 In the present case it is works rather than a building that is relevant. Whilst it is a little awkward to refer to the area of the earthworks as being "a floor area", we take it that the awkwardness must be accepted, and that "floor area" should be applied, in this case, in that way.

13 We have therefore considered whether as much as 100 square metres of earthworks extends into the overlay area. There is a degree of difficulty about determining this inasmuch as the map delineating the extent of the wildfire overlay area is not very precise, and is not quite clear as to the exact location of the edge of the designated overlay area. In fact, the width of the delineating line, on the plans put before us, is sufficiently thick as to make precision difficult.

14 Nevertheless, it appears on the evidence before us, that the extend of intrusion into the overlay area is in the order of 40 square metres, not 100 square metres. Although we realise that this figure is not precise, it allowed a margin of error of 150 percent, which we consider to be ample in the circumstances. In other words, even if our assessment of 40 square metres is wrong, the margin of error, amounting to a further 60 square metres, is sufficiently ample to make us confident that the area involved is less than 100 square metres. Furthermore, and if it were necessary to go to this extent, we are even more confident that any excess of 100 square metres, though we find that no such excess exists, would have to be trifling so as to be appropriate for the application of the legal maxim de minimis non curat lex, which means that the law does not concern itself with trifles.

15 On this basis we therefore conclude that this particular case falls within the exception. The effect of that is that a permit is not required, in this case, under the Wildfire Management Overlay.

16 Clause 44.06-3, in relation to the Wildfire Management Overlay, provides that an application must be referred to the relevant Fire Authority pursuant to Section 55 of the PE Act. The Responsible Authority is of the opinion that the proposal satisfies the requirements or conditions previously agreed in writing between the Responsible Authority and the Fire Authority. The Fire Authority, in this case, would be the CFA. However, as the proposal is exempt from the need for a permit under the Wildfire Management Overlay, there does not need to be an application for a permit under the overlay provisions and, in these circumstances, there is no application under those provisions that needs to be referred to the CFA.

17 In these circumstances it does not matter that the CFA misunderstood the application that was referred to it, and replied in relation to another one. In these circumstances there is no need for us to enquire further in relation to the attitude of the CFA.

18 In the course of the hearing certain points as to the extent of permission needed were clarified. The above, in relation to the Wildfire Management Overlay, was the most significant. We can deal with the others quite briefly. Permission is needed for the use and construction of the house and for the associated works, including the proposed swimming pool and tennis court. Further, planning permission is needed for the use and illumination of the tennis court, as well as its construction. There is also the ancillary matter of permission for the removal of grass from the area to be disturbed by the construction of the buildings and works. Apparently the site of the proposed tennis court has already been disturbed by some previous excavation. The areas to be disturbed are very minor in the scheme of things, and tiny in proportion to the extent of the property as a whole. Furthermore, although permission is needed for the removal of vegetation, the only vegetation to which such permission can apply is grass. It is not clear whether this is sown pasture grass or native grass, but the extent is so minor that there is no objection or reason to refuse permission for its removal. It is merely a matter of including the permission for completeness.

19 The other issue debated before us was in relation to a proposed condition. Conditions were discussed in terms of a draft of proposed conditions prepared on behalf of the Responsible Authority. This contained ten conditions. The Applicant accepts all of them, subject to the correction of the omission of a word in condition 2 and further subject to a concern in relation to condition 1.

Should Condition 1 Require Muted External Finishes?

20 Condition 1 requires the submission and approval of amended plans. The modification is that the plans should include a schedule of all proposed materials, colours and finishes. This specification goes on to say that this is for the purpose of ensuring that the house, ancillary buildings and structures will blend in with their background and minimise their visibility in terms of landscape. It is to be remembered that this land is not only in an Environmental Rural Zone, but is also subject to an Environmental Significance Overlay and a Significant Landscape Overlay.

21 The concerns of Mr Thomas in relation to the present wording are the references to blending in with the background and minimising visibility. He does not wish to be unduly constrained in this respect. Particular reference was made to the possibility of the roof of the house being of a light or silver colour. The plans refer to "colour bond" roofing. We would normally have taken it that this meant coloured rather than white or silver roofing. The point raised on behalf of Mr Thomas is that it is also a relevant planning consideration that the house should be energy efficient. In this connection a silver roof, for example, or perhaps some other light colour (rather than green, olive green, brown or other muted colour) would be more reflective and more energy efficient.

22 It is common for there to be conditions requiring muted tones for roofs and buildings in sensitive landscape areas. That is appropriate enough. Nevertheless, there can be great variations in the sensitivity of particular locations. While not making light of the importance of any landscape, it is obvious that some locations are vastly more sensitive than others. A new building in a site where it will be prominently visible for the public, for example, in the vicinity of a heavily trafficked road and/or from a place where people congregate is much more important than a structure at the floor of a surrounding quarry where it cannot be seen from the public realm, or from surrounding land.

23 The proposed location of this house is more towards the "floor of the quarry" end of the spectrum, without being literally invisible.

24 It is effectively not visible from the public realm as constituted by the dead-end where Prendergast Lane reaches the boundary of the property, or where the track through the property exits over another boundary into the Cobaw State Forrest to connect with the Ridge Road. Effectively the house, whatever the colour of its roof, will not be visible from the public realm.

25 So far as neighbouring properties are concerned, views are either screened by topography or greatly reduced by distance. That is true without taking account of the screening effect of existing vegetation.

26 In these circumstances it might be that concern about the effect on landscape should defer to the advantages of energy efficiency because, in effect, no-one beyond the site will see the house anyway.

27 We do not propose to resolve this question now. It appears that the issue only arose between the parties who appeared on the day of the hearing, and shortly before the commencement of the hearing. Consequently people had not prepared, in terms of evidence or argument, in relation to this point. We think it appropriate to require the amendment to the condition, but only, at this stage, in terms of requiring a schedule of all proposed materials, colours and finishes. We do not propose to include the further words in relation to blending with the background and minimising visibility.

28 In doing this we are conscious that the plans have to be approved by the Responsible Authority. It is free to refuse to approve plans, including this schedule, if it is not satisfied. In determining whether it is satisfied, it should take into account relevant matters, including landscape considerations and energy efficiency. It may be that the issue will never in fact arise. The Applicant may put forward a schedule that is acceptable to the Responsible Authority. We wish to make it clear that, in deleting the words about blending and minimising visibility, we are not determining the issue. It is open for the Responsible Authority, if it thinks fit, to refuse to approve colours, for example, in relation to the roof, if it thinks that the roof should blend with the background and have its visibility minimised in the interest of landscape considerations. It should, of course, take account of the question of energy efficiency, and be mindful of the hidden location proposed for the new dwelling. It should bear in mind that what is a necessary and appropriate imposition in relation to one location may be unnecessary and unwarranted in relation to another. Thus it might approve a silver or light coloured roof.

29 Ultimately, if the applicant and the Responsible Authority cannot agree, and the Applicant wants to insist upon something that the Responsible Authority will not agree to, the matter can come back to this Tribunal pursuant to Section 149 of the PE Act. We trust that this will not be necessary, and that the very existence of that potential remedy will influence the parties to come to a sensible resolution of this issue. Nevertheless, if necessary, it can come back.

30 In the circumstances therefore, we propose to grant this application for review (effectively by consent) and to grant a permit subject to the conditions set out above.

31 The draft conditions concluded with a note suggested by Goulburn-Murray Water which gives a warning or advice in relation to its requirements in other respects. Without insisting that such a note cannot be included, we nevertheless observe that it is not a condition and should not appear to be a condition. We do not include it in our orders. We have sought to improve the clarity and English expression in some of the conditions and to cut out some redundancies.

_________________ ______________

RUSSELL BYARD CHRIS HARTY

SENIOR MEMBER MEMBER

Environment Act 1987

Thomas v Macedon Ranges Shire Council

At a glance

Court

Decision date

Source

Judgment (45 paragraphs)

Thomas v Macedon Ranges Shire Council (Red Dot) [2005] VCAT 1713 (18 August 2005)

Parties

Legislation Cited (1)