[2003] VCAT 831

WRITTEN REASONS FOR DECISION DATED 14 JULT 2003

The Tribunal issues the written reasons set out below for its decision dated 25 June 2003.

For P & L Thompson and Stonebank Custodians Pty Ltd:

Mr Matthew Townsend of Counsel instructed by Challenge Legal

1. On 25 June 2003 the Tribunal made the following orders:

"1. In application P641/2003 the application for a declaration is refused.

2. In application P870/2003 the Tribunal makes the following enforcement order:

(a) Pursuant to section 119(a) of the Planning and Environment Act 1987 this order specifies that the development at the subject land contravenes Planning Permit 0031/01 issued by the Responsible Authority in that the location of the entrance doorways and the entrance foyer arrangements at the southern entrance foyers are constructed in a manner not in compliance with the endorsed plans under the permit.

(b) The Respondents shall comply with Planning Permit 0037/01 issued by the Responsible Authority, with particular reference to relocating the entrance doorways and entrance foyer arrangement at the southern entrance foyers so that they comply with the endorsed plans under the permit.

(c) Subject to paragraph (d) of this order, the operation of this enforcement order in paragraph (b) above is stayed pending the determination by the Responsible Authority of an application for a permit for the dwellings on the subject land "as built" or if an application for the review of the decision of the Responsible Authority is made to the Tribunal, until the matter is determined by the Tribunal.

(d) If the construction of the entrance doorways and entrance foyer arrangements at the southern entrance foyers "as built" is approved pursuant to the abovementioned permit application or by the Tribunal on an application for review of a decision of the Responsible Authority on that permit application or approved in any other appropriate manner under the Planning and Environment Act 1987 this enforcement order shall be discharged.

2. The substance of this order was given orally at the site at the conclusion of the hearing. These written reasons are given to record and amplify those oral reasons.

(a) Application P641/2003 ("Declaration Application") for a declaration made by the permit holder Mr P Thompson under S 149B of the Planning and Environment Act 1987.

(b) Application P870/2003 ("Enforcement Order Application") for an enforcement order made by the Stonnington City Council ("Council") against Mr Thompson and Stonebank Constructions Pty Ltd ("Developers") in respect of the same circumstances referred to in the Declaration Application.

4. On 13 February 2002 the Council issued Planning Permit No 0037/01 for the subject land allowing the development of two dwellings in accordance with the endorsed plans and subject to the conditions set out in the permit. Plans were endorsed under the permit on 13 December 2002. Construction of the development is well advanced.

5. There has been another enforcement order application P3297/2002 in the Tribunal brought by Mrs J A Uglow of 27 Mathoura Road in respect of a wall on the northern side of the subject land. On 24 January 2003 the Tribunal made an enforcement order. Mrs Uglow appeared in these proceedings with the purpose of resolving some outstanding isuues on the implementation of that order. However that matter was not before me and I had no power to deal with the matter. It appeared some discussions between the parties might reslove those issues and this was suggested. Mr Townsend stated the Developers had complied with some parts of that order and compliance with the balance was contingent on access to Mrs Uglow's property which she had refused.

6. The present applications concern the pedestrian entry to the units on the southern boundary. There is also entry through the basement carpark. The pedestrian entry is a side entrance reached by a pathway along the southern boundary of Mr and Mrs Von Mueller's boundary at 21 Mathoura Road ("No 21") excavated about 400 mm below the level of No 21. There was a brick wall about 1.6 m above the level of No 21 with a trellis above which collapsed in late 2002. The reasons for the collapse are not clear and are disputed but the collapse was a fact in the knowledge of the parties and the Council before the request to amend the plans. Being on No 21's land it cannot be rebuilt by the Developers without Mr and Mrs Von Mueller's agreement, and the Developers have offered to do so in return for appropriate consents.

(a) The existing fence on No 21 to be retained running from their front entrance about 7.4 metres east towards the street.

(b) The entrance door to the ground floor Unit 1 is set about 1.8 m inside a covered portico, the roof of which is the floor of Unit 2 above.

(c) The side wall of No 21 runs forward of the portico for about 3.2 metres to the corner of No 21's verandah, where their front door set back about 1 m from the boundary faces the development. At the end of the verandah next to and facing east is a full-length sash window to No 21's front living room.

(c) The front entrance door to Unit 2 enters from the same side pathway by a door at right angles to it about 1 metre wide, the eastern edge of which commences about 2 metres west of the entrance to No 21. This door accesses an entrance foyer with a stairway and lift up to Unit 2 on the first level.

8. On 28 January 2003 the Developers' architects requested Council to amend the endorsed plans. The request was phrased as follows:

".....please find amended plans - which simply seek to make minor variations to the locations of the entry doors to both apartments."

"Owing to the location of the existing wall along the southern boundary of the site, it is my professional opinion that the proposed amendments will not result in any additional detriment to other persons and can therefore be dealt with as amended plans."

9. The request did not specifically refer to SS 72 and 73 of the Planning and Environment Act but the Council treated the request as one under those sections.

10. Notification was given to the adjoining landowners at No 21 who expresses concerns in respect of the amendment.

11. The request was refused at a Council meeting of 3 March 2003 on the grounds:

"1. The proposed amendment does not comply with all the tests of the (sic) Section 73 of the Planning and Environment Act 1987, in particular part (c), as the proposed amendment will detrimentally impact upon the adjoining properties amenity.

2. The proposed minor amendment is contrary to the Tribunal's decision "cited as P50899/2001" dated 16 January 2002."

12. The changes were reflected in an amended plan which was produced to the Tribunal and were as follows:

(a) Unit 1 - The entrance portico was reconfigured to become part of the entrance foyer and an internal area of Unit 1 and the front door was moved about 1 m east to the front of the portico structure, about 1 metre closer to No 21's entrance and window.

(b) Unit 2 - The door to Unit 2 was moved further about 1.2 m east to accommodate a reconfigured stairway constructed in concrete, and is now 1.2 m closer to No 21's entrance and.

13. Mr and Mrs Von Mueller contend the change in the position in the doorways will affect their amenity through noise of persons entering and leaving the units and by light from the doorways, (the Developers indicating that the pathway lighting is at ground level).

14. It was common ground between the parties that the entrance doorways and the stairs were constructed in breach of the endorsed plans. It was acknowledged that if the declaration was refused then an enforcement order should be made. Accordingly at the conclusion of the hearing when the Declaration Application was refused I indicated I would make the enforcement order in the above terms.

15. The Tribunal received excellent and well researched submissions from both and Mr Crawford of Maddocks, Solicitors for the Council and Mr Townsend of Counsel for the Respondent.

16. The question before the Tribunal is not to review the decision of the Council to refuse to approve the amendment as a merits review but rather to determine whether the decision of the Council to refuse the request for amendment of the plans was invalid in the sense that no Council acting reasonably could have come to that decision.

17. The Declaration Application proceeded on the basis that the amendment was dealt with by the Council under SS 72 and 73 PE Act. Whilst the letter requesting the approval of the amendments did not specify any provision under which it should be processed, the Council assessed it under S 73, requested further information relevant to S 73 and decided the matter as not complying with all the tests of S 73. (See paragraph 11 above).

18. Nothing in the Council's submission referred to Ground 2 of the Council's refusal namely that the proposed minor amendment is contrary to the Tribunal's decision. Mr Crawford did not rely on this ground of refusal.

19. There is no dispute that the principles to be applied by the Tribunal in the declaration application. Both parties cited the decision of the Tribunal in Hobsons Bay v Milone [2000] VCAT 1569 (31 July 2000). It is useful to quote paragraphs 90 - 92 of that decision as follows:

"90. This leaves the amendment power in Section 73(c) for consideration.

91. Under the Council's version of the test in Section 73(c), the only aspect of the proposed amendment to which exception is taken is "the relocation of the living areas to the first floor". The application letter describes possible detriments in a number orf other respects, as set out above. But only those associated with the relocation of the living areas were treated by the Council as the ground for excluding the application of Section 73.

92. The tests to be applied by the Tribunal to an applicant seeking declarations were not disputed. In particular, both parties agreed that the Application was not a review of the merits of the Council's decision. Mr Montebello summarised the grounds on which the exercise of discretion by the Council could be successfully challenged as:

* Council has not acted bona fide or has acted for an ulterior purpose; or

* Council has failed to take into account relevant considerations or has taken irrelevant considerations into account; or

* In relation to the decision that it did make, the decision was not reasonably open to it."

20. The Developers sought to pursue the last ground, namely that the Council's decision was not reasonably open to it.

21. Mr Townsend's argument was that the Council failed to accurately state the relevant test in its reason for refusing to grant the amendment. He recalled that it found the amendment should be rejected because it

"will detrimentally impact on the adjoining property's amenity."

He contrasted this with S 73(c), which provides that the Responsible Authority may amend the permit if it is satisfied that the amendment in terms of S 73(1)(c) "will not cause an increase in detriment to any person."

22. There is no dispute that the location of the side doorways to the entrances to the units in the development wherever placed will not have some detrimental impact on No 21's amenity, but Mr Townsend argued that the resolution of the Responsible Authority fails to say whether this was the pre-existing situation that is not changed by the amendment or otherwise.

23. Mr Townsend relied on an analysis of the facts and reasoning in the Hobsons Bay v Milone decision as supporting the proposition that the wrong test has been applied to the application and the Council conclusion was not reasonably open to it.

24. However what is different in this case is that at the time the permit was issued the existing wall on the boundary was standing on No 21's land. That wall and the trellis above it provided some amenity protection to the doorway and sash window of No 21. The matter was argued on the basis of the existence of the wall. However it was admitted by all parties that in October 2002 the wall collapsed thus removing substantially the any permanent screening of to light and noise between the two properties and there are no arrangements in place for the wall to be replaced. It is also conceded that this material was in the knowledge of all the parties including the Council before the application for amendment was made. Thus there has been a significant change in the circumstances of the case in the issue of the permit and the making of the amendment application. I consider in these circumstances it was reasonably open to the Council to reach a conclusion that the amendments may cause an increase in detriment to the residence of No 21, and that no declaration should be made.

25. It was unfortunate that there was no proceeding before the Tribunal enabling it to deal with the merits of the amendment. The Council dealt with the request to amend the plans as an application under SS 72 & 73 and the declaration application was brought and argued on that basis.

26. However this need not have been the case. It appears to me there is a prima facie case that the Developers could bring a S 87 application to amend the permit to the Tribunal. The Developer has not chosen to do so. The threshold grounds under S 87(1) would seem to be met as the departure from the endorsed plans constitutes a breach of the permit and the collapse of the wall could be argued to be a material change in circumstances.

27. It was suggested by Mr Townsend that the S 87 application only authorises an amendment of a permit and not the plans, and he referred to some authorities that plans are not part of a permit. However in this case the permit states that the plans when endorsed are part of the permit and it could be argued that the plans become part of the permit by reference when endorsed. In my knowledge the Tribunal has frequently dealt with S 87 amendment applications which result in the approval of new plans. Any perceived hurdle could be overcome by amending the permit to include a reference to the new plans.

28. An alternative remedy may be available under Condition 15 of the permit stated:

"15. The use and/or development allowed by this permit and shown on the drawings/schedules to accompany the permit shall not be amended for any reason without the consent of the Responsible Authority."

29. Council could have dealt with the request by the Developer under this condition. If it had done so, even though it might have also considered the test in s 73. In any case even though the Council decided to treat the request as one under ss 72 & 73, it is arguable that the Developer could bring an application for review under s 149(1) of the Planning and Environment Act, on the basis that the Council should have treated the request under that condition. In any case it is still open to the Developer to make a specific application for amendment under Condition 15 and have it dealt with at the Tribunal under S 149(1) if refused.

30. Whilst I have found it is reasonable for the Council to conclude in the present circumstances there is an increase in detriment caused by the amendments. I have not made any comment on the extent of the increase. However the circumstances of the case are such that it would appear that with some reasonable negotiation an agreement by the Developer to reconstruct the wall on No 21's land with appropriate screening might well meet Mr and Mrs Von Mueller's concerns or produce an outcome that would be satisfactory to the Council.

31. A general comment is that Councils should act carefully in deciding on what basis to consider requests of this nature. The provisions are complex and it would be reasonable to expect that Councils should consider them on all bases available, if the applicant has not chosen to specify a particular basis. Thus if an application for amendment of a permit or plans does not specify the basis on which it is made, it would be appropriate for a Council to consider it on all bases, whether that be under ss 72 & 73, under a condition of the permit, or under s 62(3).

32. However the present application before the Tribunal proceeded on the basis that only ss 72 and 73 were invoked, the Developers did not seek to rely on the permit condition, and no s 149(1) application or a request to amend the permit under s 87 was brought to enable the merits to be considered. No application was made to me to amend the declaration application to an application for review under s 149(1) based on condition 15 of the permit, which I would have favourably considered if raised.