Victorian Civil and Administrative Tribunal|2001-08-20

Townley R v Cardinia SC Reasons for Directions [2001] VCAT 1789 (20 August 2001)

Directions issued on 11 July 2001 and these reasons were expressed to follow.

For the Applicant for Review: Trent Kneebush of KLM Gerner Consulting Group

For the Responsible Authority: Evan Patterson, Consultant of Local Planning Services

1. This was an application under s.149(1)(a) of the Planning and Environment Act 1987 for review of the refusal of the responsible authority to grant a secondary consent under condition 1 of Permit No. T990164 for the land at 100 School Road, Bayles, by endorsing a plan showing the proposed shed incorporating a pitched gable roof to a height to the top of ridgeline of 8.4 metres in lieu of the plans already endorsed under permit No. T99/0164 which indicate a relatively flat roof (with minimal slope for run-off) having a maximum height of between 6.4 to 6.6 metres.

2. Pursuant to Planning Permit T99/0164 issued 12 May 2000, Condition 1:

The layout of the site and the size of the proposed buildings and works, as shown on the approved plan, shall not be altered or modified without the consent in writing of the Responsible Authority.

A specified person may apply to the Tribunal for the review of a decision of a specified body in relation to a matter if a planning scheme specifies or a permit contains a condition that the matter must be done to the satisfaction, or must not be done without the consent or approval, of the specified body.

4. The only parties to this application for review are the Council and the Applicant for Review. Section 149(1)(a) applications are not usually served on third parties as they remain a limited dispute between the responsible authority and the permit holder.

5. KLM Gerner Consulting Group originally lodged its application for review on behalf of Ralph Townley under cover of a letter dated 2 April 2001 which stated:

This application is being made under Sections 149(1)(a) and 149B(1) of the Planning and Environment Act 1987.

6. A previous s.87 application for review No. 2001/14439 had been withdrawn by KLM Gerner Consulting Group and substituted with this application.

7. As the Responsible Authority accepted that the Tribunal has power to determine this dispute pursuant to s.149(1)(a) of the Planning and Environment Act 1987, and as the Applicant for Review had not paid the filing fee of $23 in respect of its separate s.149B(1) application, the latter s.149B application was withdrawn at the hearing.

8. Under cover of letter dated 5 April 2001, the Applicant for Review advised the Tribunal as follows:

Whilst in our letter dated 2 April 2001 we stated that we were applying under Sections 149 and 149B of the Planning and Environment Act, we did not intend this to result in two separate applications. To simplify matters we do not wish to proceed with an application under Section 149B (2001/25390) as the application under Section 149 (2001/25381) adequately covers the situation. We therefore wish to proceed with Application for Review No. 2001/25381 only.

9. Accordingly a formal order for withdrawal of the s.149B review accompanies this statement of reasons for directions.

10. The Tribunal finds the following description of the site and locality, taken from Mr Evan Patterson's written submission, to be an appropriate one:

The site is located approximately 1.2 kilometres south-east of the Bayles township between School Road to the west and O'Briens Road to the east. It is comprised of several Crown Allotments described as 88, 85, 84B, 81, 89 and 84A, Parish of Yallock. The site is regular in shape with a frontage of 725 metres to School Road and abuttal of 145 metres to O'Briens Road. The total area of the site is approximately 55 hectares.

The site is rural in nature and currently occupied by a number of buildings including a dwelling setback approximately 90 metres from School Road. Further to the east of this dwelling is a partly constructed shed for which Permit No. T990164 has been granted for its usage as a Rural Store (Fertiliser Storage Facility).

Vehicle access to the dwelling and the fertiliser storage facility is obtained via two separate driveways to School Road.

It is noted that recent landscaping has occurred on the site with the notable inclusion of trees along the front and side boundaries.

The surrounding area is rural in nature with both School and O'Briens Road being unsealed with grass verges and carriageway widths in the order of 6.0 metres. The predominant agricultural activity in the area is grazing, which occurs on various scales.

Opposite the site on the west side of School Road are five residences. These dwellings are set relatively forward on their respective properties with front setbacks varying from approximately 20 to 70 metres.

Bayles township itself is a very small rural hamlet comprising a primary school, milk bar and community hall with a small residential component. Bayles has a population of around 500 people, including the outlying areas surrounding the township.

11. Permit No T99/0164 issued on 12 May 2000 was the result of a direction by Senior Member Gould in Application for Review Nos. 1999/85506 (being an appeal by objectors against notice of decision to grant a permit) and 1999/94349 (being an appeal by the permit applicant against a condition in the notice of decision to grant a permit). In its decision dated 10 May 2000, the Tribunal disallowed the appeal by objectors and allowed the appeal by the applicant against the relevant condition.

12. The Tribunal adopts the following description of the background to this review, taken from Mr Evan Patterson's written submission:

Permit No. T990164 was issued by Council on 12 May, 2000 for the use and development of a Rural Store (Bulk Fertiliser Storage Facility) at land described as 100 School Road, Bayles. The plans endorsed under this permit also dated 12 May 2000 include amongst other things a 31 metre long by 18 metre wide shed. This building has been designed with a relatively flat roof having a maximum height of 6.6 metres.

On 19 February 2001, Council received a complaint from a neighbouring property owner that the above shed was not being erected in accordance with the endorsed plan. In particular, that the roof was being constructed in a pitched gable style rather than a skillion.

In a letter dated 21 February 2001, Council advised Mr Ralph Townley that an inspection of the site revealed that the shed was not being erected in accordance with Planning Permit T990164 and endorsed plan 3 of 3 dated 12 May, 2000. In particular, that all works relating to a pitched gable roof should stop.

Mr Townley was further advised that opportunity was available to make application to Council to amend the endorsed plan. Council further advised that such application would be advertised to all previous objectors to Permit No. 990614 and the Victorian Civil and Administrative Tribunal.

Council was subsequently advised under cover of a letter form the Victorian Civil and Administrative Tribunal dated 28 February 2001, that a request had been received to amend Permit No. T990164 pursuant to Section 87 of the Planning and Environment Act 1987.

Under cover of a letter from KLM Gerner Consulting Group dated 14 March 2001, an amended plan was forwarded to Council showing the proposed shed incorporating a pitched gable roof having a minimum wall height of 6.25 metres and a ridgeline height of 8.4 metres. This letter formally requested Council to confirm in writing that it would not approve the amended plan under Section 62(3) of the Planning and Environment Act 1987 and Condition 1 of Permit No. T990164.

In a letter dated 2 April 2001, Council advised KLM Gerner Consulting Group that Council may approve an amendment to an endorsed plan only if it satisfies the provisions of Section 73 of the Planning and Environment Act. A relevant extract from Council's letter states:

Council was alerted to the change in roof pitch and height by a neighbouring resident who objected to the grant of a permit and noted the change in roof pitch from the approved plan. Given the increase in height of the building by 2 metres, Council cannot be satisfied that the amendment to the approved plan will not cause an increase in detriment to any person and therefore is not prepared to approve the amended plan.

An application was ultimately made to the Victorian Civil and Administrative Tribunal by KLM Gerner Consulting Group pursuant to Section 149 of the Planning and Environment Act on the following grounds:

1) Section 62(3) of the Planning and Environment Act and Condition 1 of the Permit enable Council to approve the amended plan showing the pitched roof and Council has made a decision to refuse the amended plan.

2) Section 73 of the Act is not relevant to this situation as no change to the permit is required.

3) The proposed change to the roof of the storage shed is a minor amendment that is consistent with the planning scheme and the planning permit.

4) The proposed change to the roof will not cause an increase in detriment to any person particularly having regard to the location of the building behind existing buildings, the orientation of the building, its distance from neighbours (140 metres from School Road) and the proposed screen planting.

5) The fact that a neighbouring resident noticed the change to the roof does not constitute an increase in detriment to that person.

6) The pitched roof is required for operational and safety reasons.

7) The Council should have approved the amended plan as requested.

13. At the hearing, Mr Kneebush explained that the huge span of the 18m wide flat roof would require large cross beams and vertical beams that would be economically unviable.

14. Mr Kneebush gave the following written explanation for the change in size of the shed:

After obtaining the planning permit, Mr Townley approached a structural engineer to design the shed. The engineer advised Mr Townley that for structural and safety reasons the shed needed to have a pitched roof. Mr Townley did not understand that changing the roof from a flat roof to a pitched roof was an issue in terms of the planning permit. Unfortunately the building surveyor who later issued the building permit for the shed, with the pitched roof, also did not realise the fact that the roof was not consistent with the planning permit.

Construction of the shed with the pitched roof commenced in about February 2001. All of the steel columns were erected and two of the steel roof trusses. At this point a neighbouring resident alerted Council to the fact that the roof of the shed under construction was not consistent with the planning permit..........

It is proposed to modify the roof of the fertiliser storage shed to a pitched roof as shown on the plan prepared by CADE Systems Pty Ltd Ref. 000804-A1 dated 4 August 2000. A copy of this plan was sent to the Council and the Tribunal on 10 April 2001.

This proposal increases the maximum height of the shed from 6.4 metres to 8.4 metres. ............ Apparently, in times of heavy rainfall and heavy wind, a flat roof would run the risk of collapsing. The pitched roof will also make operating a front-end loader in the shed easier.

15. Mr Patterson for the Shire submitted that the principal issues to be determined by the Tribunal are:

(i) whether the amendment proposed can be dealt with under s.62(3) and in isolation of the tests presented in s.73; and

(ii) whether it can be dealt with under what are terms of `standard' provisions of Condition 1 of the permit.

16. Mr Patterson submitted that there is doubt whether an amendment to endorsed plans can be approved under s.62(3) of the Planning and Environment Act where it would not qualify under s.73 of the Act, particularly s.73(1)(c) where the Council is not satisfied that it "will not cause an increase in detriment to any person".

17. Let me say at the outset that I have no jurisdiction under s.62(3) or s.73 of the Planning and Environment Act 1987 ("the Act"), and that my powers to review this case is under the secondary consent power of what the council calls the `standard' provision of Condition 1 of the permit, when read together with s.149(1)(a) of the Act.

18. Mr Patterson went on to submit that the `standard' Condition 1 planning permit provision is often referred to as a `secondary consent' and its power to permit a modification, variation or amendment under that condition is equally limited.

19. In rebuttal, Mr Trent Kneebush of KLM Gerner Consulting Group submitted:

It is our submission that the proposed change to the roof is a minor amendment that is consistent with the planning scheme and the permit. The shed with the pitched roof is not a significant departure from what was originally approved. On this basis, the Council could and should have approved the amended plan.

Even if the matters set down in Section 73 of the Act are applied it is our submission that the proposal is satisfactory. The proposal:

* Does not change the effect of any condition required by the Tribunal.

* Does not change the effect of any condition required by a referral authority.

* Does not adversely affect the interests of a referral authority.

* Will not cause an increase in detriment to any person (refer Section 6.2 below); and

* Does not change the use for which the permit was issued.

The only possible increase in detriment that could be caused by the proposed change to the roof of the shed would be an increase in visual impact. However, it is our submission that the proposed change will not cause a significant increase in visual impact.

Sheds of many different shapes and sizes are an accepted and legitimate part of the rural landscape. Some sheds are larger than others due to their use. Poultry farming sheds are usually around 120 metres long by 15 metres wide and there are usually a number of sheds on each farm. Other types of farm sheds include those for the storage of hay, machinery and equipment, milking sheds, etc. The vast majority of farm sheds have a pitched roof.

The proposed shed, with or without the pitched roof, is not overly or unusually large when compared to some other sheds which can be found in rural areas.

Whilst there are a number of houses located on the opposite side of School Road, the proposed change to the roof will not cause an increase in detriment to the residents of these houses having regard to the following factors:

* The shed is set back 140 metres from School Road.

* The shed is located behind the existing residence and garage.

* The maximum height of the shed will only increase by 2 metres at its highest point (the ridgeline), a difference of less than one degree when viewed from School Road.

* The external finish of the shed will be a muted colour, for example, a green, beige or brown colour.

* Screen planting is proposed in front of the shed and around the site as shown on the approved Landscape Plan.

The mere fact that the proposed pitched roof is different to and slightly higher than the roof that was originally approved does not constitute an increase in detriment. The mere fact that a neighbouring resident noticed the change to the roof does not constitute an increase in detriment lo that person.

The residents of the houses on the opposite side of School Road are living in a farming area where rural enterprises and farm buildings can and will be established. In Purchase v Shire of Baw Baw (1998/77176 pg. 11), which concerned an 8 shed broiler farm proposal in Ripplebrook on land also zoned Rural, the Tribunal made the following comments regarding residential uses in agricultural areas:

"The land in this zone is primarily for forming purposes. It is not zoned for residential purposes. Residential uses, whether they be on rural residential blocks or `hobby farm' holdings (which are generally really residential in character) are not part of the primary and essential purpose of the zoning. Residential uses, as distinct from farm houses used by families farming the land, are interlopers in this zone."

"If essentially residential uses come onto smaller holdings in such a zone they come on terms of the zone being used for forming. They cannot expect residential conditions and amenity and they cannot expect to inhibit legitimate farming activities that are appropriate in a farming zone but might be detrimental in a Residential Zone."

Given all of the above, it is submitted that the proposal will not cause an increase in detriment to the amenity of the area or surrounding residents.

* Condition 1 of the Planning Permit enable the amended plan to be approved.

* The proposed change to the roof of the storage shed is a minor amendment that is consistent with the planning scheme and the planning permit.

* The proposed change to the roof will not cause an increase in detriment to any person.

* The pitched roof is required for structural, safety and operational reasons.

* The Council should have approved the amended plan as requested.

20. The Responsible Authority referred me to a number of decisions of the Tribunal concerning the scope of power to amend plans under the Planning and Environment Act 1987. It referred me to Abacus Designs v Yarra City Council, Kathy Freeman and Others (Application for Review No. 1996/4442+ unreported) per Mitchell, M ("Abacus"); Cade v Yarra City Council and Another (Application for Review No. 1997/15363+ unreported) per Byard DP; Davies v City of Stonnington (Application for Review No. 1998/27515 unreported) and Hobsons Bay v Milone [2000] VCAT 1569 dated 31 July 2000, per Bruce DP. It would be fair to characterise these decisions as of narrower scope.

21. My own investigations led me to a set of decisions which uphold a broader scope of the secondary consent powers. I refer to Mentone Mansions Pty Ltd v Kingston CC [2000] V.C.A.T. 1947 ; (2000) 6 VPR 128, per Liston and Rickards, MM ("Mentone Mansions_")_; Petridis Cornetta Architects v Banyule CC [2001] V.C.A.T. 299 per Liston, M ("Petridis Cornetta"); and Wagstaff v Monash CC unreported No. 2000/84961 dated 18 June 2001 per Cimino, M ("Wagstaff").

22. The history of these divergent opinions commences with the habendum by Member Gibson in Kitsone Pty Ltd v City of Doncaster and Templestowe Appeal No. 1992/21753, which reads as follows and with which both divergent opinions agree:

Two principles emerge from these cases. The first relates to the distinction between formal and informal consents. A formal consent is one which is required by a planning scheme. It can only be obtained by making an application for a permit pursuant to Section 47 of the Planning and Environment Act. Such a consent is then subject to all the notification requirements and rights of appeal set out in the Act.

An informal consent is one which is only required pursuant to conditions in a planning permit. It is not subject to the notification or appeal provisions of the Planning and Environment Act. Disputes in relation to an informal consent may be referred to the Tribunal pursuant to Section 149A of the Act. The parties to such a dispute are set out in Section 149A(2). They do not include third parties.

However, a condition in a planning permit requiring something not to be done "without the further consent of the Responsible Authority", cannot operate to transform what would be a formal consent required by the planning scheme into an informal consent required under a planning permit and thus effectively exclude the notification and appeal rights which would otherwise apply under the Planning and Environment Act.

The second principle is that even if only an informal consent under a planning permit is required, the Responsible Authority cannot grant such a consent if the effect of doing so would be to transform the permit for which application was originally made as distinct from only modifying it (see Addicoat v. Fox (No 2) [1979] VicRp 37; [1979] VR 347).

This does not mean that the informal consent must result in a different use to that applied for or permitted as was the case in City of Keilor v. Suraco [1981] VicRp 81; [1981] VR 865. The use may well remain the same but its intensity may increase to such an extent or the effect on the surrounding amenity may so alter as a result of the informal consent sought that it cannot be said that the permit remains the same but becomes a different permit.

23. As analysed by the Tribunal in Mentone Mansions:

The Abacus decision relies heavily on the Kitsone decision, but very dramatically extends the effect of the Kitsone decision, by drawing no distinction between development which had not already been approved, the transformation of approved development, or minor amendments of approved developments. [at para. 10]..............................

The Abacus decision relies on the two principles set out in the Kitsone decision, it does not create or rely on any new principles as the underlying basis of its decision, rather it is the scope of their application which Abacus seeks to extend. Abacus says that where permission is required for development under a planning scheme, informal consent cannot be used to amend an already permitted development even if it is a minor amendment. [at para. 13].

24. One of the rationales behind the narrow scope of the Abacus, Mentone Mansions; Cade and the Milone decisions has much to do with the fact that secondary consents do not generate third party notification or appeal rights.

25. The Tribunal in Abacus acknowledged that it was departing from accepted practice and going down a narrower path, saying:

We have given careful consideration to this matter, and are mindful of the consequences of our determination for what we are sure is a widespread practice by planning decision-makers of allowing minor amendments to all types of planning permits under "consent" conditions of this sort.

26. Other rationales behind the narrow scope of the Abacus, Mentone Mansions; Cade and the Milone decisions concerned the interpretation of the actual words of ss. 62(3) and 73, which do not concern my jurisdiction under s. 149(1)(a).

27. Mr Patterson tried to convince me to apply the test of `no increase in detriment' laid down in the s.73 power to amend given to the Responsible Authority by the Planning and Environment Act 1987, and against which no right of appeal lies.

28. The Tribunal in Mentone Mansions had this to say about that comparison:

During the course of the hearing much was made of the fact that under s.73 the Responsible Authority may only amend a permit if it is satisfied that among other things the amendment will not cause an increase in detriment to any person, and the concept of detriment is not qualified by words such as material or substantial. Here we are not dealing with s.73 and it is considered that the concept of the consequences of any amendment vis-à-vis purpose of the control is a more useful way of looking at the discussion.

29. In the end, the Tribunal in Mentone Mansions diverged from the narrow scope of Abacus and held:

It is considered lawful for a Responsible Authority to amend a development which already has primary permission, relying on an informal consent, provided that the amended development is not a transformation of the development originally approved, and the amendments are inconsequential having regard to the purpose of the planning controls which lead to the need for the primary permission. [My emphasis].

28. The rationale behind the Mentone Mansions decision is contained in its paragraph 17:

The primary analysis of the Abacus decision is correct. It is its failure to give sufficient weight to the variation that will inevitably exist in the real world between what can and is constructed as what was approved by the primary planning permission. Such variations may be on the one hand be minor, that is trivial or inconsequential having regard to the purpose of the planning control, or on the other hand may require a new primary consent because they are transforming, or consequential having regard to the purpose of the planning control.

29. Member Liston followed his opinion in Mentone Mansions in the Petridis Cornetta decision, and that opinion was also followed by a different division of the Tribunal in the Wagstaff decision, the Tribunal remarking:

..... it would simply stifle rather facilitate appropriate development if applicants have to endure the costs and delays associated with obtaining a new permit each time the need for a modification arises, irrespective of how inconsequential or trivial such change may be. Overall I find myself in agreement with the reasoning and conclusions reached by the Tribunal in Mentone Mansions that it is lawful for plans to be altered by way of an informal consent.

This is not to say that it is appropriate that any change to an approved development should be authorised by way of an informal consent pursuant to a permit condition. There are limits to the extent to which this power can be exercised and these were clearly identified by the Tribunal in Mentone Mansions. First, an informal consent to amend development which already has primary permission must not result in a transformation of the development originally approved to something that would be so different that a new permit would be required. Second, the amendments must be inconsequential in nature having regard to the purpose of the planning controls which lead to the need for the primary permission.

Accordingly the proposed alterations for which informal consent is being requested should be considered in light of the tests set out in Mentone Mansions.

30. The Responsible Authority has maintained that surrounding neighbours would be detrimentally affected by this two metre increase in the height and ridgeline of the proposed shed. The permit holder responds that no detriment would be caused. In this rural zone where large sheds are commonplace, it is almost impossible to appreciate this without seeking the views of the neighbours.

31. I thought it preferable for the views of neighbours to be sought, in order for me to even be able to begin to apply the tests set out in Mentone Mansions. The Responsible Authority had no objection to the Tribunal seeking the views of neighbours. I initiated a s.60 Victorian Civil and Administrative Tribunal Act power to overcome the doubt caused by the lack of notice requirements in s.149 applications, and my inability to appreciate the arguments without at least hearing from third parties.

(1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that ...

(b) the person's interests are affected by the proceeding; or

(c) for any other reason it is desirable that the person be joined as a party.

(2) The Tribunal may make an order under sub-section (1) on its own initiative or on the application of any person.

24. On its own initiative and after the hearing on 10 July 2001, the Tribunal initiated notice of the application to be given to third persons pursuant to s.60. Directions issued on 11 July 2001 to see whether any persons consider they suffer an increase in detriment. As a result, a number of statements of grounds have been sent to the Tribunal by surrounding neighbours.

37. Pursuant to Directions 3 & 4 issued on 11 July 2001, this matter is to be re-listed speedily for further hearing.

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Environment Act 1987

Townley R v Cardinia SC Reasons for Directions [2001] VCAT 1789

At a glance

Court

Decision date

Source

Judgment (121 paragraphs)

Townley R v Cardinia SC Reasons for Directions [2001] VCAT 1789 (20 August 2001)

Parties

Legislation Cited (1)