1 Under section 149A(2) of the Planning and Environment Act 1987 I make the following declaration:

a

Condition 1(a) of permit D/297/2005 issued by the responsible authority in respect of the subject land means that the footprint of the development must not be made larger and must be setback from St David Street as specified, but does not preclude the footprint of the development from being otherwise moved on the subject land, including being closer towards the rear boundary, or being reduced in size.

Mr David Song, town planner, of Aspect Town Planners Pty Ltd

1 At the outset of the hearing the application was amended from an application under section 149 of the Planning and Environment Act 1987 to an application for a declaration under section 149A(1) of the Act. The applicant seeks a declaration relating to the interpretation of a condition in planning permit D/297/2005. The permit is for development of three double storey dwellings on the subject land. It was issued at the direction of the Tribunal[1] following an application for review against the Council's refusal to grant a permit. Condition 1 requires amended plans to the satisfaction of the responsible authority based on plans submitted with the application but modified to show:

(a) Without expanding on the footprint of the development, setback of Unit 3 abutting No 101 St David Street a minimum of 6 metres from St David Street graduating to a minimum of 7.5 metres for Unit 1, with an average of these two for Unit 2.

2 The applicant has prepared amended plans and submitted them to the responsible authority for endorsement. The footprint of each dwelling has been marginally reduced and the setbacks from St David Street comply with condition 1(a). Compliance has been achieved by shifting the footprint of each dwelling towards the rear of the land. This has had the effect of reducing the amount of private open space for each dwelling, although all standards under clause 55 of the Darebin Planning Scheme continue to be met.

3 The council has not endorsed the plans because its interpretation of the condition is that the front setback must be increased without any further encroachment towards the rear boundary. It points to the following passage from the Tribunal's decision in support of this interpretation:

[25] The main problem I have with the design is the inadequate setback of from [sic] St. David Street. ...

[26] Council submitted that the minimum setback should be 6 metres, aligning with the walk-up flats at 101 St. David Street to the north, and graduated to a minimum of 7.5 metres at Unit 1. The setback of Unit 2 should be the average between the two. Mr Anderson advised that he could achieve this setback without pushing the building envelope towards the rear.

[27] I accept that this compromise would reduce the dominance of the development and is an acceptable outcome for the site. These setbacks would be required by means of a permit condition.

4 The applicant contests Member Fong's version of what Mr Anderson meant in the exchange referred to in her decision.

5 I am being asked to interpret a condition in a planning permit. It is a principle of statutory interpretation that words should be given their ordinary and grammatical meaning, and it is only where there is an ambiguity in the meaning of the words that it is appropriate to look behind them to extrinsic material to resolve that ambiguity. Where the interpretation of legislation or subordinate instruments is concerned, section 35 of the Interpretation of Legislation Act 1984 provides that preference should be given to a construction that promote the purpose or object underlying the actual subordinate instrument rather than one which does not. It may therefore be appropriate to look at extraneous material to ensure that the ordinary and grammatical meaning of words does not give a statute or subordinate instrument an obviously unintended meaning. However, in the case of a planning permit, Justice Morris in Gant v Greater Geelong CC[2] said:

[11] In the Becton decision I discussed the circumstances in which it was possible to go behind the words of a permit and look at antecedent material such as, in this case, the reasoning of the tribunal or the material before the tribunal. Following the decision of the Full Court of the Supreme Court in the case of BDL v City of Brighton, I held that, generally, the interpretation of a permit must be gleaned from the words used in that permit and that, generally, it was impermissible to go behind the permit. The reasoning is essentially that permits run with the land and a person who may occupy the land may not be familiar with the antecedent history to the permit. Being a public document the permit should speak for itself and any person reading it should be able to deduce its meaning and act upon that meaning.

6 In Melbourne City Council v Becton[3] Justice Morris said:

In BDL Cable & Electrical Co Pty Ltd v Brighton City Council (1990) 72 LGRA 227 the Full Court of the Supreme Court of Victoria observed that the Court was entitled to look at the permit application, and to use it as an aid to construction of the permit if, but only if, the permit was otherwise ambiguous or unclear and if the form of the application lends logical assistance to the question of the construction of the permit. In my opinion, this principle also applies, where a permit is ambiguous or unclear, to other historical documents, leading to the grant of the permit, that lend logical assistance on the question of the construction of the permit.

7 With respect to condition 1(a), I do not consider there is any ambiguity in the words used: "Without expanding on the footprint of the development..." They mean that the footprint of the development must not be any larger than the footprint shown on plans referenced earlier in condition 1. The footprint may be smaller or it may be in a different location. But so long as the footprint is not expanded and the setbacks from St David Street specified in the condition are complied with, then I find that condition 1(a) is met.

8 There is no ambiguity in the words unless there is a reference to the Tribunal's decision. However, even then, I consider it would be distorting the meaning of the words used in the permit condition to find that they mean there should be no further encroachment towards the rear boundary. If that was Member Fong's intent then such intent should have been expressed by words to that effect in the condition. But there is no reference to not encroaching on rear setbacks, only a reference to the setbacks from St David Street. There is no justification for saying that the member's views expressed in her reasons (about which there is some dispute in any event) should take precedence over the clear, unambiguous meaning of the words in the permit. The permit is a public document and must speak for itself.

9 I therefore find that the words used in condition 1(a) of the permit - without expanding on the footprint of the development - mean that the footprint of the development must not be made larger, but they do not preclude the footprint from being moved or reduced in size.

[1] Tonkin v Darebin CC [2005] VCAT 2886

[2] [2003] VCAT 2037

[3] [2003] VCAT 1077, see footnote [4]