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[2005] VSCA 198
Court of Appeal (Vic)
2005-08-11
WARREN, C.J., BUCHANAN, J.A., and OSBORN
Original judgment source is linked above.
Appeal pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act - Appeal on question of law only - Planning permit for mixed use development - Weight given to and status of Melbourne 2030 - Planning and Environment Act 1987 - Whitehorse Planning Scheme - Planning policy objectives and considerations - 'Higher density' development - Absence of structure plan - Appeal dismissed.
The proceeding
1 The appellant Whitehorse City Council ("Whitehorse") brings this proceeding pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998. It seeks to appeal a decision of the Victorian Civil and Administrative Tribunal ("the Tribunal") and to have that decision set aside.
2 The decision in issue was one made by the Tribunal on appeal to grant a planning permit for the erection of a twin tower mixed use development at Mitcham. The appeal site is currently occupied by a number of disused industrial buildings[1] and sits opposite the Mitcham railway station facing onto an access street to the station and an adjacent car park. It adjoins commercial premises to the north and east and adjoins a primary school to the west. It forms part of a strip of land running between the railway line and Whitehorse Road.
3 Application was initially made by the first respondent to Whitehorse for a permit to erect a single rectangular 14 storey tower. The proposal was extensively advertised and was the subject of some 631 objections from the surrounding area.
4 Whitehorse failed to deal with the application within the time specified pursuant to the Planning and Environment Act 1987 ("the Act"), but following an appeal by the permit applicant against such failure to the Tribunal, Whitehorse resolved not to support the grant of a permit for the proposal.
5 Thereafter the permit applicant sought to refine the proposed design and the Tribunal granted leave to modify the plans for the proposal substituting a more complex built form comprising two residential towers of 8 and 14 storeys in height respectively, having an ovoid shape and rising out of a three storey podium. The podium was proposed to contain car parking with an "active" frontage of shop and gymnasium uses.
6 After undertaking a four day hearing, considering the material submitted to it and conducting a view of the site and its environs the Tribunal concluded as follows:
"The proposed development is strongly supported by the planning policy set out in the Whitehorse Planning Scheme. It is also supported by the strategic planning policy contained in Melbourne 2030. The proposed buildings are well designed and will be a positive addition to the urban form. Although the towers will be visually dominant, this is not inappropriate having regard to the location of the land in an activity centre and adjacent to a major railway station. The development will not cause unreasonable amenity impacts upon land in the public domain or to occupiers of adjacent land.
The approval of the proposed building will produce a greater net community benefit than would the approval of a four storey development. It will better satisfy the need for housing to accommodate the anticipated growth in population and households. It will better satisfy the need for a type of housing that will provide greater variety and choice. It will produce a greater concentration of housing in an activity centre and next to a railway station. And it achieves these objectives without adversely affecting the character of existing residential areas."[2]
7 It is apparent in so finding the Tribunal rejected the case presented by Whitehorse and the objectors on the facts. In particular it rejected the contentions:
(a) that the proposed towers would not be a positive addition to the existing urban form;
(b) that this was not an appropriate location for a landmark building;
(c) that the proposed towers would cause unreasonable amenity impacts upon land in the public domain and the occupiers of adjacent land; and
(d) that the proposed towers would adversely affect the character of the Mitcham shopping centre and adjoining residential areas.
8 An appeal to this Court from a decision of the Tribunal is one which may be brought by leave only and with respect to an identified question or questions of law.[3] Accordingly the Tribunal's decision on the facts as to the urban design merits of the proposal cannot be relitigated before us. Whitehorse is restricted to an appeal with respect to the principles applied by the Tribunal in reaching its conclusion.
9 As Mason, J. said in Minister for Aboriginal Affairs v. Peko Wallsend Ltd[4]:
"The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned."
10 The amended Notice of Appeal specifies the questions of law upon which Whitehorse relies in the following terms:
1. Did the Tribunal err in law in misconstruing the meaning of "higher density housing" in Melbourne 2030: Planning for Sustainable Growth ("Melbourne 2030")?
2. Did the Tribunal err in law by misconstruing the meaning of higher density housing in the context of a neighbourhood activity centre in Melbourne 2030?
3. Did the Tribunal err in law by failing to differentiate between classes of activity centres in its construction of Melbourne 2030?
4. Did the Tribunal err in law in finding the application was not premature in the absence of a structure plan or further detailed strategic planning for the Mitcham neighbourhood activity centre?
5. Did the Tribunal err in law by misapplying clause 19.03, clause 21.06, clause 21.12 and clause 22.02 of the Whitehorse Planning Scheme?
6. What is the status of Melbourne 2030 in relation to applicable provisions of the Whitehorse Planning Scheme; can Melbourne 2030 be given greater or equal weight to that given to those provisions?
11 It can be seen that questions 1, 2 and 3 turn upon the construction of Melbourne 2030. Question 4 raises the proposition that the approval was premature in the absence of further detailed planning for the Mitcham centre. Question 5 alleges a misapplication of specific policy provisions contained in the Whitehorse Planning Scheme. Question 6 raises the relative status of Melbourne 2030 as against the applicable provisions of the Whitehorse Planning Scheme.
12 In large part the questions of law thus traverse in different ways the fundamental question of whether the Tribunal had regard to irrelevant considerations by misconstruing the policy framework within which its discretion was to be exercised.[5]
13 When the matter came on for hearing leave was sought by Whitehorse to add two further supplementary grounds of appeal to the Notice of Appeal. The first was directed to the process of reasoning which Whitehorse contends was required of the Tribunal in dealing with the relative weight to be given to Melbourne 2030. The second was as follows:
"The Tribunal erred in law when it held that Melbourne 2030 was a planning policy adopted by a Minister under section 60(1)(b)(ii) of the Planning and Environment Act 1987."
14 It can be seen that this point takes issue with the fundamental status of Melbourne 2030. As such it might be thought to be logically antecedent to question 6 contained in the Notice of Appeal which goes to the relative weight to be given to Melbourne 2030. It raises a discrete and new point of law. Further it raises a matter of potential significance to the State Government and in particular the Minister for Planning. At the outset of the hearing the Solicitor-General sought leave on behalf of the Minister to intervene in the proceeding, firstly to join issue with the contention that Melbourne 2030 has not been adopted in the relevant sense, and secondly (somewhat paradoxically) to otherwise support Whitehorse in its appeal and in particular to support the ground of appeal directed to prematurity of approval.
15 The Solicitor-General further indicated however that if the Court did not give leave to Whitehorse to amend the Notice of Appeal to raise the issue of the adoption of Melbourne 2030, the Minister would simply seek leave to make submissions as to background matters in the capacity of amicus curiae.[6] After hearing preliminary submissions from the parties the Court indicated that it would hear the parties together with the Minister as to the substance of the proposed additional grounds of appeal and the appeal generally. Having heard both the parties and the Minister it would then rule upon both the application for leave to amend the Notice of Appeal and the Minister's application for leave to intervene together with its judgment upon the substance of the appeal.
The statutory framework
16 In order to properly address the issues raised by this appeal it is necessary to summarise the relevant framework of the Act and the Whitehorse Planning Scheme. Further it is necessary to do so relatively fully in order to demonstrate that the Planning Scheme is not intended to be given effect without regard to other relevant government policies.
17 Section 4(1) of the Act sets out the objectives of planning in Victoria:
"(a) to provide for the fair, orderly, economic and sustainable use, and development of land;
(b) to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;
(c) to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;
(d) to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;
(e) to protect public utilities and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community;
(f) to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e);
(g) to balance the present and future interests of all Victorians."
18 It can be seen that the objectives of planning extend beyond the regulation of use and development of land to the positive provision of appropriate land use and development and a satisfactory environment. The objectives are in part facilitative and encourage appropriate development. They also require the present and future interests of all Victorians to be balanced.
19 In turn s.4(2) sets out the objectives of the planning framework established by the Act. Of particular relevance are the following:
"(a) to ensure sound, strategic planning and co-ordinated action at State, regional and municipal levels; and
(b) to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;
(c) to enable land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels;
(d) to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land;
(e) to facilitate development which achieves the objectives of planning in Victoria and planning objectives set up in planning schemes;
...
(g) to encourage the achievement of planning objectives through positive actions by responsible authorities and planning authorities;
...
(j) to provide an accessible process for just and timely review of decisions without unnecessary formality;
..."
20 The objectives of the planning framework relevantly envisage that planning schemes will be the principal way of setting out objectives, policies and controls for the use, development and protection of land but also expressly envisage strategic planning and co-ordinated action at State, regional and municipal levels and the integration of land use and development planning with other policies. The objectives are again in part facilitative of appropriate development.
21 Part 1A of the Act provides for the Victoria Planning Provisions which are a set of standard planning scheme provisions implemented for the purposes of assisting to provide "a consistent and co-ordinated framework for planning schemes."
22 Part 2 of the Act provides for planning schemes. Section 6(1) provides that a planning scheme for an area:
"(a) must seek to further the objectives of planning in Victoria within the area covered by the scheme; and
(aa) must contain a municipal strategic statement ('MSS') if the scheme applies to the whole or part of the municipal district; and
(b) may make any provisions which relates to the use, development, protection or conservation of any land in the area."
23 Section 6(2) relevantly provides that a planning scheme may -
"(a) set out policies and specific objectives;
(b) regulate or prohibit the use or development of any land;
...
(d) include strategic plans, policy statements, codes or guidelines relating to the use or development of land.
..."
24 Section 7 further provides that a planning scheme must include State standard provisions and local provisions. The State standard provisions must consist of provisions selected from the Victoria Planning Provisions. The local provisions must include a MSS (if the area of the planning scheme includes the whole or part of a municipal district) and any other provision which the Minister directs to be included. It may include any other provision which applies only to the area of the planning scheme. Provision is also made for the primacy of State standard provisions.
"(4) If there appears to be an inconsistency between different provisions of a planning scheme -
(a) the scheme must, so far as practicable, be read so as to resolve the inconsistency; and
(i) the State standard provisions prevail over the local provisions; and
(ii) a specific control over land prevails over a municipal strategic statement or any strategic plan, policy statement, code or guideline in the planning scheme."
25 Section 12A provides for the preparation of a MSS. A MSS must contain -
"(a) the strategic planning, land use and development objectives of the planning authority;
(b) the strategies for achieving the objectives;
(c) a general explanation of the relationship between those objectives and strategies and the controls on the use and development of land in the planning scheme; and
(d) any other provision or matter which the Minister directs to be included in the municipal strategic statement."
26 In summary it can be seen that the Act thus envisages that:
(a) Land use and development will be primarily controlled pursuant to planning schemes.
(b) The controls will both regulate and facilitate land use and development.
(c) The controls will be exercised having regard to both the present and future interests of Victorians.
(d) The controls exercised by individual municipalities under planning schemes will be exercised within a strategic framework.
(e) Land use and development planning and policy will be "integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels".
(f) Planning schemes will include a State section and local section.
(g) The State section may state policy.
(h) The local section of the planning scheme will ordinarily include a MSS which identifies both objectives and strategies to achieve those objectives.
(i) The local section may further state local policy.
The Whitehorse Planning Scheme
27 In accordance with this statutory framework the Whitehorse Planning Scheme contains both a State planning policy framework and a local planning policy framework as an underlying basis for the application of specific zone and other controls to land use and development.
28 Clause 11 of the Planning Scheme introduces the policy framework in the following terms:
"The purpose of State policy in planning schemes is to inform planning authorities and responsible authorities of those aspects of State level planning policy which they are to take into account and give effect to in planning and administering their respective areas. It is the State Government's expectation that planning and responsible authorities will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.
...
The State Planning Policy Framework provides a context for spatial planning and decision making by planning and responsible authorities. It is comprised of a statement of general principles for land use and development planning and specific policies dealing with sectoral issues. The specific policies encompass objectives, generic implementation techniques applying across Victoria in relation to the specified policy and geographic strategies that set out directions for particular areas. Planning and responsible authorities must take account of and give effect to both the general principles and the specific policies applicable to issues before them to ensure integrated decision-making." (Our emphasis)
29 This introduction is of some significance. It is clear that the planning scheme contemplates that the application of relevant policy considerations to a particular proposal is intended to inform a judgment as to whether a proposal results in a net community benefit. It is not intended that individual policies can be read prescriptively or that their application will necessarily be free of potential conflict with other individual policies. What is intended is a judgment as to the net outcome assessed in a policy context.
30 The Tribunal highlighted the aspects of State Policy which it regarded as most pertinent to this case at paragraphs 26-28 of its decision. The most significant matters can be summarised as follows:
(a) There is fundamental support for consolidation of residential activity within existing urban areas;
(b) Development within existing residential areas should respect the neighbourhood character;
(c) Higher land use densities and mixed use developments are encouraged at locations which adjoin a railway station, transport interchange or fixed rail route;
(d) Development should achieve high standards of architectural and urban design which contribute positively to urban character;
(e) Appropriate design must take into account 'the natural, cultural and strategic context'.
31 The Whitehorse Planning Scheme further contains a MSS which first sets out a description of characteristics of the municipality together with relevant aspects of the regional context. As the Tribunal's decision records, a decline in average household size has resulted in a population decline over recent years. This has occurred despite extensive medium density development within the municipality.
32 The MSS goes on to identify key challenges. The Tribunal sets out a number of these which provide the context for the policy fundamentals which it subsequently identifies.[7]
"Clause 21.03 of the scheme sets out a number of key challenges for the municipality. One such challenge is in relation to residential amenity. The MSS explains:
The characteristics that make the residential areas attractive, particularly to families, are under extreme pressure for redevelopment. In some areas houses on large allotments lend themselves to medium density development. It is therefore vital that the essential elements that underpin the character of an area are maintained and enhanced, whilst achieving urban consolidation to more effectively use existing infrastructure and provide for appropriate housing for the changing population. This is perhaps the biggest challenge facing the City. [Tribunal emphasis.]
Another challenge concerns meeting future housing needs. The MSS explains:
The City's population is aging and household size declining. Whitehorse contains more people over the age of 50 than the metropolitan average, which will only increase over the next decade. The existing housing stock fails to reflect the characteristics of its population given the predominance of detached dwellings on large allotments. It is therefore essential that there is a greater range of housing choice to meet the future housing needs of the population, whilst achieving sustainable development objectives. [Tribunal emphasis.]
Another challenge is in relation to sustainable development. The MSS explains:
It is essential that new development is constructed and located in a way that reduces dependency on fossil fuels, maintains biodiversity and is sensitive to its environment. Development should, therefore, be targeted into areas with excellent public transport access, shopping, entertainment and employment opportunities. Designers must respond to the particular constraints and opportunities of a site and make full use of natural resources such as northern sunlight, retention of existing vegetation and use of landscaping for shading. [Tribunal emphasis.]
Another challenge relates to redevelopment of key sites. The MSS explains:
There is little surplus land available for redevelopment. This means that any large parcels of land that become available must be put to the use that achieves the optimum benefit for the whole community. Council will ensure that a clear strategic direction is provided for the sites and provide clear guidance in the event that other sites unexpectedly become available." [Tribunal empasis.]
33 In response to these challenges the MSS then states a vision at cl.21.04 of the Scheme. That vision states that Council will engage in a series of actions. These include:
• Maintain and enhance the strong character of the city's residential and business areas.
• Endorse the provision of a wider range of housing types to meet the changing needs of the population.
• Ensure medium density housing is integrated with existing residential areas in a form consistent with the character of neighbourhoods, with higher density housing being located in specific areas with excellent public transport and shopping access.
34 Clause 21.06 sets out strategic directions with respect to sustainable residential and urban development. Objective 1 stated at cl.21.06-3 is:
"To respond to State Government policy for urban consolidation by accommodating medium and high density housing in appropriate locations within the city."
35 The strategies stated to achieve this object include:
• Identifying areas suitable for higher density housing that are consistent with sustainable development principles.
• Encouraging site responsive higher density housing development in appropriate areas close to fixed rail public transport nodes, a range of shopping, recreation and community facilities and higher education facilities.
36 It can be seen from the above that both the State and local policy framework within the planning scheme favoured higher density residential development upon the appeal site.
(a) State planning policy supports urban consolidation and in particular the consolidation of residential use within existing urban areas;
(b) It specifically encourages higher density residential development at locations such as the appeal site which adjoins a railway station and associated bus stops and transport interchange;
(c) The Whitehorse MSS identifies as key challenges the provision of a greater range of housing choice, targeting locations such as the appeal site for redevelopment, and encouraging the use of development opportunities to optimise benefit to the community;
(d) Council's vision expressly supports a wider range of housing types and the location of higher density housing at locations with excellent public transport and shopping access.
The permit requirement
37 The appeal site is located in a mixed use zone. A permit is required to construct a building within this zone. A permit is not required to use the land for the purpose of dwellings, but is required for use for the purpose of shop and gymnasium.
38 The purposes of the zone are:
"To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
To provide for a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality.
To encourage residential development that respects the neighbourhood character."
"Before deciding on an application or approval of a plan, the responsible authority must consider, as appropriate:
•
The matters set out in Section 60 of the Act.
•
The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
•
The purpose of the zone, overlay or other provision.
•
Any matter required to be considered in the zone, overlay or other provision.
•
The orderly planning of the area.
•
The effect on the amenity of the area.
•
The proximity of the land to any public land.
40 Section 60 of the Act at the time of the Tribunal's decision[8] relevantly provided:
"(1) Before deciding on an application, the responsible authority -
(i) all objections and other submissions which it has received and which have not been withdrawn; and
(ii) any decision and comments of a referral authority which it has received; and
(iii) any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development; and
(b) if the circumstances appear to so require, may consider -
(i) any significant social and economic effects of the use or development for which the application is made; and
(ii) any strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council; and
(iia) any amendment to the planning scheme which has been adopted by a planning authority; and
(iii) any other relevant matter."
41 In argument before us there was agreement that s.60(1)(b) should be understood in accordance with the observations of Hayne, J. in the Returned & Services League of Australia (Victorian Branch) Inc., Glenroy Sub-Branch v Moreland City Council & anor[9] case.
"Section 60 of the Planning and Environment Act is not easy to construe. At first sight the contrast drawn between matters which a responsible authority (and the tribunal on a rehearing) 'must consider' and those which it 'may consider' 'if the circumstances appear to so require' is stark and suggests a distinction between obligation and unfettered discretion. The nature and extent of the difference, however, may not be as obvious as that first sight might suggest.
If 'the circumstances appear to so require' I am of the view that the responsible authority (and thus, on a rehearing, the tribunal) is then bound to have regard to whichever of the four specified subject matters bears upon the issue. I do not accept that the expression 'may consider' is to be read in s. 60(1)(b) as conferring a discretion on the decision-maker but rather, in the words of Jervis C.J. in argument in Macdougall v. Paterson[10] 'the word 'may' is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise'. (See Finance Facilities Pty. Ltd. v. Federal Commissioner of Taxation[11]; see also Mitchell v. R[12].) To adopt and adapt the language of Windeyer J. in Finance Facilities, the responsible authority (and the tribunal) are each given power to consider the matters mentioned in subs. (1)(b) in forming their decisions but upon proof of the particular case out of which the power arises, that is "if the circumstances appear to so require", the responsible authority, or the tribunal (as the case may be) is then bound to consider them."
The relative weight of Melbourne 2030 and the provisions of a planning scheme
42 Although last in the questions of law set out in the amended Notice of Appeal, the question of the relative weight to be accorded Melbourne 2030 was the principal matter canvassed on behalf of Whitehorse before us. We shall address it before going to the other matters raised.
43 It is first pertinent to observe that contentions such as those now advanced by Whitehorse have given rise to controversy in various ways at least since the Melbourne and Metropolitan Board of Works put forward a strategic plan entitled The Future Growth of Melbourne more than 30 years ago. Moreover, it has been accepted in this State since that time that consideration of a metropolitan strategy adopted by the relevant planning authority for the purposes of managing the future growth of Melbourne is a potentially relevant consideration to the exercise of the discretion to grant or refuse a permit for a particular proposal for land use and development. It will be relevant if it is apparent that the particular proposal may be said to impact upon the implementation of the strategy. That this is so is demonstrated by the decision of the Full Court in Portland Properties v. Melbourne and Metropolitan Board of Works[13]. In that case the applicant sought a permit to develop and use an industrial estate upon land currently zoned rural. The permit was refused on the grounds that the development would be premature and that the grant of a permit would prejudice the future planning of the area. The then Town Planning Appeals Tribunal accepted the responsible authority's contention that the land which was currently zoned rural would probably come within one of the "Green Wedges" proposed in the strategy document published by the responsible authority entitled The Future Growth of Melbourne. Smith, J. (with whom Adam, J. agreed) observed:
"... in the view of the Tribunal, the proposals referred to would probably be brought into force and the subject land included within one of the green wedges. And as the effect of the proposals was that the lands within the green wedges were to be kept as open space between corridors of development, the conclusion so stated by the Tribunal negatived the appellant's first argument. Far from the appropriate use having ceased to be rural and become industrial, the probable future course of development of the locality made a strict confinement to use as open space the appropriate form of use for this land."[14]
44 After further considering the Tribunal's reasons Smith, J. concluded:
"... I consider that it was open to the Tribunal, on the material before it, to hold that the proposed use was premature; and I consider that, having regard to the way the case was conducted before it, the Tribunal was entitled to take into account the proposed green wedges and the proposals relating to them which were contained in the publication The Future Growth of Melbourne. Those matters, in my view, were relevant to a consideration of the appellant's contention that the appropriate use of the land had ceased to be rural and had become industrial."[15]
45 In our view it is clear that the majority of the Court accepted that it was open to regard the strategic plan for metropolitan Melbourne including green wedges as both relevant and potentially determinative of the case before the Tribunal.
46 In the present case it is submitted on behalf of Whitehorse that the Tribunal is required to give effect to the controls and policies contained in the Whitehorse Planning Scheme and that even if it can take into account the provisions of Melbourne 2030 it must not apply the provisions of Melbourne 2030 as if they had precedence over or weight similar to the provisions of the planning scheme.
47 There are two fundamental problems confronting this submission in the present case. Firstly, the Tribunal made it quite clear that it did not regard Melbourne 2030 as being contrary to the intent of the relevant policies contained in the planning scheme. Further, it did not purport to disregard policies or provisions of the planning scheme or give them lesser weight than they might otherwise have because of Melbourne 2030.
48 Secondly, if it is accepted that Melbourne 2030 is a relevant consideration then the planning scheme required the policy contained within it to be weighed together with the policies and other relevant considerations set out in the planning scheme in deciding whether a permit should be granted pursuant to the zone provisions. The planning scheme itself required regard to be had to matters made relevant by s.60 of the Act. Moreover, even if the planning scheme had not expressly referred to s.60 of the Act it is clear that this section would prevail over the provisions of the planning scheme and make considerations falling within it relevant. Accordingly, even if the Tribunal had given precedence to Melbourne 2030 over provisions of the planning scheme it would be necessary for the applicant to demonstrate that it was not reasonably open for the Tribunal to do so in all the circumstances of the case before an error of law could be established. There will be situations where it is entirely appropriate for the Tribunal to give matters identified in s.60 precedence in the exercise of its discretion under a planning scheme. The clearest example is perhaps a case in which the policy contained in an amendment adopted by the responsible authority but not yet approved is given precedence over policy contained in the existing scheme. There may, however, be other situations as well in which the exercise of a discretion under the planning scheme may be critically informed by the factors made relevant by s.60.
49 In the present case the Tribunal made it clear that in its view "the proposed development is strongly supported by the planning policy set out in the Whitehorse Planning Scheme." If it was wrong in this conclusion in the sense that it was not open to it to reach this conclusion then this would constitute an error of law. Such an error would not derive, however, from the view taken by the Tribunal of Melbourne 2030. It would vitiate the Tribunal's conclusion independently of issues associated with Melbourne 2030.
50 It is true that the Tribunal went on to say of the proposed development "it is also supported by the strategic planning policy contained in Melbourne 2030." This conclusion however was not that Melbourne 2030 should prevail over the provisions of the Whitehorse Planning Scheme or somehow detract from those provisions. Accordingly those grounds of appeal premised upon the proposition that the Tribunal gave precedence to Melbourne 2030 over the provisions of the planning scheme must fail.
The adoption of Melbourne 2030
51 As we have said the appellant seeks leave to further amend its Notice of Appeal to allege that the Tribunal erred in law in holding that Melbourne 2030 was a planning policy adopted by a Minister under s.60(1)(b)(ii) of the Act.
52 We take this to be directed to the Tribunal's finding that "Melbourne 2030 is a strategic plan which has been adopted by the Minister," despite the reference to it in the proposed ground of appeal by way of an alternative category of relevance found in s.60(1)(b)(ii).
53 The submission of counsel for Whitehorse in this Court was to the effect that the word "adopt" should be construed to mean "formally declare". We do not accept this submission. There is no process specified under the Act for the adoption of a policy or strategic plan other than as part of a planning scheme and it is clear s60(1)(b)(ii) is not speaking simply of parts of a planning scheme. Further, it is apparent that a relevant "strategic plan, policy statement, code or guideline" might be adopted under legislation other than the Act. Thus by way of an example, which counsel for Whitehorse conceded, the Environment Protection Authority might adopt a relevant policy by way of a State Environment Protection Policy pursuant to the Environment Protection Act 1970.
54 In our view a document may fall within the description of a strategic plan which has been "adopted" if it can be said as a matter of fact that it was adopted. The section does not require a formal declaration as a precondition to the status of the document.
55 Moreover, the finding that Melbourne 2030 was a strategic plan which has been adopted by a Minister within the meaning of the relevant sub-section was clearly open to the Tribunal.
(a) It was expressly conceded to be such by Mr Pitt of senior counsel who appeared for the appellant before the Tribunal. It was so conceded by way of express agreement with the conclusion in a previous decision of the Tribunal to this effect.[16] Further it was conceded that all parties before the Tribunal relied on Melbourne 2030, 'albeit different aspects of it';
(b) Melbourne 2030 is on its face signed by and issued under the authority of the Premier, the Minister for Planning and the Minister for Transport. Although it is not strictly necessary to decide the point, it appears to us that the use of the phrase "a Minister" in s.60(b)(ii) is deliberate, and is not restricted to the Minister responsible for the Planning and Environment Act 1987. The use of the phrase "a Minister, government department, public authority or municipal council" strongly supports a broad construction of the reference to "a Minister";
(c) It was apparent from the evidence before the Tribunal that Melbourne 2030 had been communicated by the Minister for Planning to Whitehorse and that Whitehorse acting as the responsible authority administering the Whitehorse Planning Scheme had treated Melbourne 2030 as a document adopted by the Minister.
56 It follows that the proposed ground of appeal relating to the adoption of Melbourne 2030 must fail. The application for leave to amend the grounds of appeal is refused in that regard. The basis upon which the Minister sought leave to appear as an intervenor also falls away and the alternative application for the Minister to be heard in the capacity of amicus curiae arises.
57 The Court accepts that the submissions of the Minister as amicus curiae concerning background matters should be received, limited as they are to considerations other than the matters directly in contention between the parties.
58 We note however that notwithstanding the statutory entitlement to do so, the Minister did not appear in the proceeding before the Tribunal. It was somewhat unusual, therefore, that the Minister sought leave to appear as a party on the appeal. As events have transpired, it has proved unnecessary for us to consider the basis on which the Minister might intervene. We would not wish the circumstances of this matter and the fact that we have heard the Minister as we did to be taken as an indication of the assent or approval of this Court to such approach in other appeals that might come before this Court from time to time. Indeed, it would ordinarily be that the case where a Minister sought to intervene or to be heard amicus curiae would arise only in unusual circumstances and, in any event, to be considered by the Court in the context of the particular appeal.
The further proposed additional ground of appeal
59 The further proposed additional ground of appeal is:
"The Tribunal failed to take into account a relevant consideration when it failed to consider the factors set out in Lyndale and Black Pty. Ltd. v. MMBW[17] in assessing the weight to be given to Melbourne 2030 and in particular direction 1 and policy 1.3."
60 Lyndale and Black Pty. Ltd. was a decision of the Planning Appeals Board. It concerned the assessment of relevance of a proposed planning scheme amendment to the exercise of a discretion under existing planning scheme controls.[18] The Board referred to and analysed the relevant authorities including the Portland Properties[19] case and the decision of King, J. in Albury Wodonga Corporation v. Fitzpatrick[20].
61 The Board formulated the relevant principles by way of a statement subsequently approved by Vincent, J. in Teston Investments Pty. Ltd. & Anor. v. Melbourne and Metropolitan Board of Works[21]:
"The true position is that a proposed change to the operative planning controls is a relevant consideration to be taken into account, whether or not the planning proposal is in the form of an adopted amendment to a planning scheme. However, the weight that should be given to such a planning proposal will vary according to a number of factors. Some of these factors are:
(a) The form of the planning proposal - a formal planning scheme amendment will be given much more weight than a planning proposal of a less formal nature.
(b) The stage which the planning proposal has reached in the planning process - greater weight will be given to a planning proposal which has reached an advanced stage in the planning process than to a proposal of an embryonic nature.
(c) The seriousness with which the responsible authority or state government is pursuing the implementation of the planning proposal.
(d) Whether the grant of a permit would impair the objectives of the planning proposal and not merely be inconsistent with the strict letter of the planning proposal.
(e) The nature of the development or use for which a permit is sought - for example, a planning proposal will generally have greater weight when a permit is sought to develop vacant land or to subdivide land than when a permit is sought to use an existing building especially for temporary purposes.
This list is not intended to be an exclusive list of relevant factors that may determine the weight that should be given to a planning proposal."
62 This list usefully identifies factors which will commonly be relevant to an assessment of the weight to be accorded to a planning proposal. It cannot however be understood to preclude a flexible assessment of the circumstances of each case.
63 Melbourne 2030 is structured, firstly, to contain a statement of nine interrelated objectives or directions; secondly, to set out strategies intended to give effect to those directions and; thirdly, to set out proposed initiatives for implementation of such strategies. The nine directions are a more compact city, better management of metropolitan growth, networks with regional cities, a more prosperous city, a great place to be, a fairer city, a green city, better transport links and better planning decisions.
64 The Tribunal in its decision characterised Melbourne 2030 as follows:
"Melbourne 2030 is not so much a document directed at making Melbourne grow, as a document directed at managing the growth and change which will inevitably occur across metropolitan Melbourne over the next 30 years. In its summary, Melbourne 2030 states:
Melbourne 2030 is a plan for the growth and development of the metropolitan area. An important objective is to ensure that Melbourne retains the qualities that people enjoy about it. Despite a slowdown in population growth, Melbourne will grow substantially over the next 30 years. It is appropriate to plan for the capacity to comfortably absorb up to 620,000 extra households over that time while protecting and enhancing our existing suburbs.
The main thrust is to continue to protect the liveability of the established areas and to increasingly concentrate major change in strategic redevelopment sites such as activity centres and underdeveloped land. While a good supply of land for development will be maintained in both areas, over time there will be a shift away from growth on the fringe of the city.[22] [Tribunal's emphasis.]
Melbourne 2030 identifies nine directions - or desired results - whose achievement over time will depend upon giving effect to specific policies. The first direction is for a more compact city. The second direction is to better manage metropolitan growth, principally by establishing an urban growth boundary beyond which the metropolis will not extend. In the present context, direction 1.3 is particularly relevant. It is to locate a substantial proportion of new housing in or close to activity centres and other strategic redevelopment sites that offer good access to services and transport."[23]
"We have previously identified policy 1.3 of Melbourne 2030, which is a policy of locating a substantial proportion of new housing in or close to activity centres and other strategic redevelopment sites that offer good access to services and transport. In support of this specific policy Melbourne 2030 states:
Encouraging higher density development on sites that are well located in relation to activity centres and public transport will:
•
provide for the forecast increase in population and households
•
ensure the available housing stock better matches changing demand by widening housing choice, particularly in middle and outer suburbs
•
support opportunities for a wide range of income groups to choose housing in well serviced locations
•
increase the local population base that supports activity centres and local businesses
•
encourage walking, cycling and public transport as viable transport alternatives.[25]
The policy identifies the types of locations which could be regarded as strategic redevelopment sites. Suitable locations include locations:
•
in or beside neighbourhood activity centres that are served by local public transport
•
abutting tram, train, light rail and bus routes that are part of the principal public transport network and close to principal or major activity centres
•
in or near major modal public transport interchanges that are not in principal or major activity centres
• major redevelopment sites - that is, able to provide ten or more dwelling units, close to activity centres and well served by public transport.[26]" [Tribunal's emphasis]
66 As we have stated it is apparent that at the hearing before the Tribunal senior counsel for Whitehorse accepted that all of the parties before the Tribunal relied on Melbourne 2030 "albeit different aspects of it". Further, it was conceded before this Court that Melbourne 2030 was both a relevant and important consideration for the Tribunal.
67 Nevertheless, Whitehorse now submits that because some only of the implementation measures set out in an Advisory Note issued by the Minister for Planning in conjunction with Melbourne 2030 have been implemented the Tribunal erred in giving too much weight to Melbourne 2030. There are a series of answers to this proposition.
(a) The argument proceeds from the premise that the Tribunal gave overriding effect or equal weight to 2030 as against countervailing provisions of the planning scheme. For the reasons we have stated we do not accept this was so. The Tribunal formed the view as a fact that the proposal gave effect to the policies contained in the planning scheme and was not contrary to its provisions. The Tribunal did not regard Melbourne 2030 as determinative of the appeal;
(b) Lyndale and Black may be applied by analogy to the evaluation of the weight to be given to a strategic plan or policy. Nevertheless, the principles stated in it were formulated specifically by reference to a proposed planning scheme amendment. At the hearing before the Tribunal senior counsel for Whitehorse accepted that the status of Melbourne 2030 was correctly decided by the previous decision of the Tribunal in O'Connell Street Developments Pty. Ltd. v. Yarra City Council[27]. In that case the Tribunal stated:
"We agree with Mr Dreyfus' submission that the Metropolitan Strategy (as opposed to the Implementation Plans) is a final Strategy adopted by the Minister which the Tribunal may consider and if the circumstances so require, must consider under Section 60(1)(b)(ii).
•
It is a Strategic plan in final form;
•
It has been adopted after an extensive consultation process, and
•
The Minister and the State Government are pursuing its implementation on a serious basis.
As it is final and adopted, it is not necessary to consider whether it is a seriously entertained planning proposal.
Given our decision on the Metropolitan Strategy, it is not necessary to make any decision whether the Implementation Plans should be regarded as a seriously entertained planning proposal, and we comment that Section 84B(1)(f) would not appear to be applicable as draft Clause 12 is not yet in the form of an amendment to the planning scheme which has been adopted by a planning authority.
All parties agree that, at present, the Metropolitan Strategy is not law, in the sense that the Metropolitan Strategy is neither a reference document nor an incorporated document of the planning scheme, which has not yet been amended to give effect to the Metropolitan Strategy (with the exceptions discussed above).
So how does the Tribunal 'implement' the Metropolitan Strategy and the Implementation Plans? Our view is that the Tribunal's obligation in making planning decisions is to apply the current planning scheme and in doing so is obliged under Section 60(1)(b)(ii) and (iii) to have regard to the Metropolitan Strategy. The Implementation Plans, as discussed in paragraph 52 above, would not appear to be a matter for relevant consideration under Section 84B(1)(f)."
68 Given the concession made at the hearing on behalf of Whitehorse concerning the correctness of the decision in O'Connell it is hardly surprising that the Tribunal in the present case did not engage in a Lyndale and Black type evaluation of Melbourne 2030. The Tribunal may be understood to have accepted with the agreement of Whitehorse that the application of the test stated in Lyndale and Black gives rise to the conclusions set out in the decision in O'Connell. This is so despite the fact that, as senior counsel for Whitehorse made clear to the Tribunal, the implementation initiatives proposed by an advisory note issued in conjunction with Melbourne 2030 envisaging the implementation of statutory policies reflecting Melbourne 2030 more fully in planning schemes had not proceeded either at the time of the hearing before the Tribunal of O'Connell or the present case.
69 There is a further consideration which should be noted. This is that the form and structure of Melbourne 2030 support the conclusion that it is not possible to conclude from a delay in implementing a statutory planning process in accordance with the advisory note, that the fundamental policy directions and associated metropolitan policies set out in Melbourne 2030 should not be given weight. The fundamental reason for this is that the directions and policies (which it is conceded have in part been directly implemented by planning scheme amendments) are necessarily directly interrelated.
70 It is apparent from its title that Melbourne 2030 was intended to provide direction for the accommodation of Melbourne's future population growth which is estimated at some 1,000,000 persons over the next 30 years. It is further apparent from the body of the document that the imposition of urban growth limits (which it is conceded has been the subject of statutory planning implementation) cannot be divorced from the strategy for urban consolidation. The urban growth limits which have been implemented presume that urban consolidation will proceed as envisaged by the first direction contained in Melbourne 2030 which envisages a more compact city. Likewise they are premised in part upon the implementation of policy 1.3.
71 A fundamental objective of Melbourne 2030 is to shift growth away from the edge of the city to appropriate sites such as activity centres within the metropolitan area. Thus Direction 1 which is to achieve a more compact city and Direction 2 which is to better manage metropolitan growth are each supported by policy statements which directly complement each other and proceed on a shared basis.
72 This is exemplified by the following extracts from Policies 1.3 and 2.2 respectively. Policy 1.3 is a policy to 'locate a substantial proportion of new housing in or close to activity centres and other strategic redevelopment sites that offer good access to services and transport' and is supported by the statement that:
"[a] large number of new dwellings will be required over the 30-year planning period. Current trends indicate that most will be households of fewer people - on average - than today. Melbourne 2030 provides for an increasing proportion of housing to be developed within the established urban area, particularly at activity centres and other strategic sites suitable for redevelopment."[30]
73 Policy 2.2 is a policy to 'concentrate urban expansion into growth areas that are served by high-capacity public transport' and is supported in part by the statement that:
"By 2030, new dwelling commencements in greenfield sites are expected to decline as a proportion of total new dwelling commencements in metropolitan Melbourne. They should fall from 38 per cent to around 22 per cent. This is a significant change."[31]
74 Accordingly the proposed ground of appeal based on Lyndale v. Black must fail and leave to amend is refused. Melbourne 2030 was conceded to be a consideration of weight before the Tribunal. It has not been shown this concession was wrong and in any event the Tribunal did not found its decision upon a conclusion that Melbourne 2030 had precedence over the planning scheme.
High Density
75 The Tribunal's conclusion that the proposal is supported by the policy contained in the planning scheme is supported by a relatively detailed analysis of both State and local policy as set out in the planning scheme. Likewise the conclusion with respect to Melbourne 2030 is supported by an analysis of relevant policy contained in that document. Questions of law 1 and 2 stated in the Notice of Appeal raise the question of whether the Tribunal misconstrued the meaning of "higher density housing" as it is used in Melbourne 2030. In turn grounds 1 to 6 of the Notice of Appeal in effect contend that the Tribunal misconstrued the meaning of the term "higher density housing" and erred in equating it with "high rise development". We observe in passing that the planning scheme also encourages "higher density housing" at locations such as the appeal site.[32]
76 It was put by counsel for Whitehorse that the Tribunal's reasons demonstrate a slide from the use of the term "higher density" to the term "high density". It was submitted the Tribunal had used the terms as if they were interchangeable. A careful reading of the Tribunal's reasons demonstrates that this is not so. The Tribunal consistently and correctly states that the policy contained in Melbourne 2030 is for "higher density housing" at locations having characteristics possessed by the appeal site. The Tribunal refers to the proposal as one for "high density" where it describes the character of the proposal before it. There is no dispute by Whitehorse that such a description was other than fair.
77 If the grounds of appeal are intended to convey that a policy supporting "higher density" development could not, in the circumstances of this case, be regarded as supporting "high density" development then this contention must also fail.
78 The question of whether the proposal is one for "higher density" within the meaning of the policy is a question of fact and degree. It requires a consideration not only of the built form context (including, as the planning scheme makes clear, its strategic significance) but also a consideration of the underlying purposes of the policy to which it is intended to give effect. As we have already indicated, that policy is intended to achieve material urban consolidation by way of residential development at appropriate and limited locations. It cannot be said that the evidence before the Tribunal established that it was not open to conclude that the proposal was one for "higher density" development within the meaning of Melbourne 2030 or indeed the policy provisions of the Whitehorse Planning Scheme.
79 One aspect of the Tribunal's decision on the facts bearing on this matter was its conclusion that a visually dominant building was not inappropriate within an activity centre and adjacent to a major railway station. In reaching this conclusion the Tribunal had regard to the design and built form policy contained in the Whitehorse Planning Scheme which includes specific recognition that landmarks may be created by new additions to the built environment.[33] The fundamental question for the Tribunal was whether the proposed development would be a positive addition to the built environment. Having heard evidence from the design architect and other relevant witnesses it concluded that a building having the characteristics and quality proposed would so contribute. No argument was mounted before us that it was not open to the Tribunal to conclude "the proposed buildings are well designed and will be a positive addition to the urban form."[34]
80 The written submission filed on behalf of Whitehorse further contends that the intent of Melbourne 2030 is to differentiate between categories of activity centres and that the Tribunal failed to take into account this difference in assessing the appropriateness of high density development.
81 Melbourne 2030 classifies metropolitan Melbourne's activity centres into five types:
• Central activities district
• Principal activity centres
• Major activity centres
• Specialised activity centres
• Neighbourhood activity centres.
82 There is no dispute that in terms of this classification the Mitcham shopping centre is currently classified as a neighbourhood activity centre.[35] The Tribunal described the Mitcham activity centre as:
"a substantial one, which serves the broad Mitcham community, and includes a major supermarket, numerous cafes and restaurants, local offices and community facilities. The Mitcham railway station is obviously a key element in the activity centre."[36]
83 Melbourne 2030 states with respect to neighbourhood activity centres:
"Higher density housing will be encouraged in and around neighbourhood activity centres. It should be designed to fit the context and enhance the character of the area while providing a variety of housing options for different types of householders. Development of the centres can improve access to local services and accommodate the changing housing needs of those who do not want to break their links with their local community."[37]
84 The Tribunal addressed the issue of activity centre hierarchy at paragraphs 61-68 of its decision under the heading "Inappropriate in a Neighbourhood Activity Centre". No specific criticism was directed to its reasoning and in our view the conclusions stated were open to it:
"It is true that the classifications of activity centres provide guidance as to the appropriate form of development which should be permitted in the different types of centres. As a generality, it is true that large, high density developments will be more suited to activity centres towards the top of the hierarchy. But to treat the hierarchy as a definitive guide would be to ignore the purpose of the hierarchy. It would also overlook the difficulty of creating a universal hierarchy that was applicable for all situations.
The hierarchy of activity centres in Melbourne 2030 is multi-purpose. It is designed to identify the scale and intensity of activity in a centre to inform policies concerning office development, conventional retailing, bulky goods retailing, entertainment facilities and high density residential development. But what we are concerned about in this case is confined to the suitability of Mitcham for a high density residential development. For reasons we have given the fundamentals strongly support this." [38]
85 This conclusion was further supported by an analysis of the major activity centres contained in the City of Whitehorse resulting in a finding that none of these are superior to Mitcham as a location for high density development. The complaint that the Tribunal misconstrued the meaning of 'higher density' is not persuasive.
Structure planning
86 It was next contended that the Tribunal erred in law by failing to reject the permit application as premature in the absence of a structure plan or other "detailed strategic plan" for the Mitcham centre.
87 The planning scheme expressly recognises a role for structure planning to facilitate the orderly development of urban settlement i.e. the establishment of new urban areas.[39] It does not refer to structure planning as a mechanism appropriate for the orderly planning of metropolitan development i.e. development within existing urban areas. Nevertheless, the general considerations which must be taken into account by a responsible authority as appropriate when considering the grant of a permit include "orderly planning of the area". It follows that the potential consequences of a the proposal for the future use and development of the Mitcham centre were legitimate considerations.
88 Melbourne 2030 proposes that strategic plans be prepared for principal activity centres. It also identifies a role for structure planning within activity centres generally. Melbourne 2030 states under the heading "The Role of Local Government in Planning Activity Centres":
"The way activity centres are planned and managed can generate a number of benefits.
As the centres become better-served by public transport, there is less need to use cars. They offer access for all to a range of services. Because activities are clustered, employment opportunities multiply, and they provide a range of housing options.
Renewed planning of existing activity centres should emphasise implementing policies for clustering higher-density housing in and around centres, and improving local and regional public transport.
Accordingly, to encourage development within centres, local councils will be encouraged to review the purpose and function of individual centres and to revise local planning policies to ensure consistency with Melbourne 2030. Detailed structure planning can help with this process.
• set the strategic framework for the use and development of land in and around the centre and give clear direction to investors about preferred locations for investment
• support the role and function of the centre given its classification, the policies for housing intensification, and development of the public transport network
• show the scale and direction of development needed to reflect the needs of the community, now and in the future
• reflect the Strategy's performance criteria.
...
Careful structure planning will provide a basis for supporting more intensive and varied development without compromising the amenity of surrounding land-uses."[40] (Our emphasis)
89 It can be seen that the structure planning envisaged is expressly intended to facilitate development and in particular the clustering of higher density housing in and around centres. It is difficult to see how the proposed role identified in Melbourne 2030 for structure planning can be said to preclude the grant of a permit for a proposal which is otherwise in accordance with the policy stated in Melbourne 2030. This is particularly so when no material compromise to the amenity of surrounding land uses was found by the Tribunal to result from the proposal.
90 Moreover, the State policy relating to design and built form contained in cl.19.03 of the Whitehorse Planning Scheme recognises that:
"The development process should be managed so that sites are not in an unattractive, neglected state for excessive periods and the impacts from vacant sites are minimised."
91 This points up the fact that postponing redevelopment of an unattractive vacant industrial site at the heart of an activity centre may itself be contrary to policy and involve community disbenefit.
92 The Tribunal dealt with the question of lack of a structure plan at paragraphs 69-74 of its decision. It has not been demonstrated that its conclusions at paragraphs 73 and 74 were not open to it. In particular it has not been demonstrated that in the absence of a structure plan there is any risk of material disbenefit to the community which the Tribunal failed to take into account. The Tribunal's conclusions were as follows:
"We have been provided with ample information to make a decision in the present case. As we have outlined, there is a detailed policy framework in the planning scheme which provides strong support for the proposed development. This detailed policy framework has been put into the planning scheme in recent times and following a comprehensive process. The application has been professionally documented. There has been extensive consultation. We have heard from the parties over four days. We have inspected the land, the centre and neighbouring centres. What more is a structure planning process likely to produce to enable the right decision to be made about the development of the subject land?" [41]
93 We interpolate that it is to be observed that it was the detailed policy framework contained in the planning scheme and not that contained in Melbourne 2030 which formed the basis of this conclusion. The Tribunal went on to add:
"There is another factor. In Harrod Hughes & Associates Pty Ltd v. City of Melbourne,[42] Sir James Gobbo said:
'Tribunals should in my opinion be wary of undervaluing their own acknowledged expertise, experience and common sense in favour of possible future executive or legislative directions, at any rate where there is no policy or proposed amendment in place. It would be the worst of all worlds to have a situation where there was both a mass of detailed directions that inhibit discretion and also an abdication of discretion.'
In the present case, with a firm policy foundation and detailed material about the proposal, we believe we would be failing in our task if we were to abdicate our responsibilities." [43]
94 We accept the submission made on behalf of Whitehorse that the observations quoted from the Harrod Hughes case were made in the context of a decision by the Tribunal to refuse to grant a permit for a sign because of fear that it would create a precedent. Nevertheless, it seems to us that in this case the Tribunal was entitled to regard the observations as apposite to its position. The Tribunal had been advised that the Council had called for tenders from planning consultants to carry out a structure plan for the "Nunawading/Mega Mile Major Activity Centre and the Mitcham Neighbourhood Activity Centre". It had formed the view that this process would take well in excess of a year before any final decisions were made. In these circumstances it was open to it to conclude that the proposed redevelopment of the site should not be placed in limbo and that it should form a view as to whether the material before it justified the grant of a permit.
95 The Tribunal also referred to structure planning considerations when canvassing previous Tribunal decisions which had been the subject of submission to it as offering guidance in the present case. The Tribunal identified prior instances of approval for higher density development within activity centres in the absence of structure plans for the centres. It also identified cases in which planning permission was refused because of uncertainty as to the applicable policy framework. The Tribunal formulated the relevant principle as follows:
"It is true that both the South Yarra decision and the West Melbourne decision were based upon a lack of strategic planning to underpin the grant of a permit for a high rise building. But in our opinion it would be a mistake to conclude that a permit for a high rise building cannot be granted unless there was first some strategic plan or structure plan which specifically identified particular land for high rise development. Such an approach would be flawed for a number of reasons. It would fail to give sufficient emphasis to existing policy provisions in the scheme concerning urban consolidation and urban design. It would fail to give sufficient weight to the need to respond positively to development opportunities created by the private sector, particularly in relation to land close to transport services, within an activity centre and having a limited residential interface. And it would be based upon unrealistic expectations as to the certainty that strategic or structure planning can achieve when it is undertaken in the absence of concrete development proposals."[44]
No error has been shown in this conclusion, which is in our view consistent both with the provisions of the planning scheme and the terms of Melbourne 2030.
96 For the above reasons the structure planning contention must fail.
The planning scheme policies
97 Lastly, it was contended that the Tribunal misapplied cl.19.03 of the State policy contained in the planning scheme relating to design and built form, and cl.21.06of the local policy relating to sustainable residential and urban development, and cl.21.12 and 22.02 relating to shopping centres as the local community focus and activity centres.
98 It was submitted on behalf of Whitehorse that the Tribunal had failed to assess the built form of the proposed development in accordance with relevant policy. It is quite clear that the Tribunal carefully assessed the built form in the light of cl.19.03 of the scheme and rejected Council's arguments based upon it. Its conclusions were as follows:
"The council placed particular reliance upon the first paragraph of the design principles, namely:
Development must take into account the natural, cultural and strategic context of its location.
It was said that the natural context includes the existing low rise built form of the Mitcham Activity Centre; and that the proposed development failed to take this into account. We are prepared to accept that the existing built form of an area is part of the natural context of the area, but this does not mean that new development must be the same as the existing built form. New development can take account of existing built form and yet be different. Further, and more importantly, the policy also requires the strategic context of the location to be taken into account. In the present case, the location of the subject land in the Mitcham Activity Centre and very close to the Mitcham railway station is obviously important in a strategic sense. This is so whether one has regard to the policies contained in the scheme, or to those contained in the scheme as supplemented by Melbourne 2030.
We think that when the context of the location of the subject land is taken into account it does not militate against a high rise building, provided it is well designed and will contribute positively to the Mitcham Activity Centre.
The proposed building has been designed with a three level podium, which will be largely used for car parking. The lower level will be below ground level at the south of the site, which is the public face of the building. Hence on this façade the podium will present as a two level building. It is proposed that the portion of the southern façade of the building, facing the railway station, be used for retail purposes and, at the upper level, for a gymnasium. We find that the concept of a podium, and the arrangement of uses within it, to be an appropriate urban design response.
The two towers, which will emerge from the podium, will be the dominant form within the Mitcham Activity Centre. The location of the buildings adjacent to the railway station does not make this inappropriate; indeed, the buildings will act as a useful marker for the station. The shape of the towers, combined with the light and glassy façade of each tower, will create an interesting and unusual visual form. Although we have no doubt that some members of the community will find the buildings bulky, we believe the bulk of the buildings has been carefully addressed by their shape, orientation and façade treatment. Overall we regard the proposal as a high quality architectural response to the context of the site." [45]
99 In our view it cannot be said that these conclusions were not open to the Tribunal.
100 Likewise, the Tribunal made specific reference to cl.21.06. As we have indicated objective 1 stated under that clause is "to respond to State Government policy for urban consolidation by accommodating medium and high density housing in appropriate locations within the city." Strategies for achieving this objective include:
"Encouraging site responsive higher density housing development in appropriate areas close to fixed public transport modes, major shopping, recreation and community facilities and higher education facilities."
101 As we understand it, Whitehorse, in effect, contends that it was not open to the Tribunal to conclude that the proposal before it constituted "site responsive higher density housing development".
102 It seems to us that this was a matter of fact and that, as its reasons demonstrate, the Tribunal's conclusions in this regard were open to it.
103 Clauses 21.12 and 22.02 of the planning scheme state policies with respect shopping centres and activity centres respectively. The Tribunal addressed the question of whether the proposed development was inappropriate in a neighbourhood activity centre at some length in paragraphs 58-68 of its decision. As we have already stated, no basis has been demonstrated for concluding that the Tribunal's reasoning was not open to it.
104 Lastly, it was submitted on behalf of Whitehorse that the Tribunal dismissed relevant policies "on the basis that the subject land was not in a residential area". No relevant policy forming the subject of the Notice of Appeal was, however, identified as having been so dismissed and our reading of the Tribunal's reasons does not indicate that the Tribunal dismissed relevant policy on this basis. Further, the Tribunal expressly found that the policy objectives which would be achieved by the proposal would accrue "without adversely affecting the character of existing residential areas". It formed this view in the context of a description of the subject land and environs which it is not suggested was incorrect. Nor can it be suggested that its conclusion was not open to it.
105 In summary Whitehorse has not demonstrated that the Tribunal erred in law by misapplication of clauses 19.03, 21.06, 21.12 or 22.02 of the planning scheme.
Conclusion
106 For the above reasons the appeal must be dismissed.
[1] It was historically used as a sheltered workshop for persons with disabilities.
[2] Golden Ridge v Whitehorse CC (Mitcham Towers) [2004] VCAT 1706 at [114]- [115]
[3] Section 148 Victorian Civil and Administrative Tribunal Act 1998
[4] [1986] HCA 40; (1985) 162 C.L.R. 24 at 40-41
[5] Cf. Re Hunt; Ex parte Sean Investments Pty. Ltd. [1979] HCA 32; (1979) 53 A.L.J.R. 552
[6] See Levy v State of Victoria (1997) 189 C.L.R. 579
[7] Above at [31].
[8] s.60 has been amended a number of times. It was further amended to amplify the considerations enumerated on 23 May 2005:
"60. What matters must a responsible authority consider?
(1) Before deciding on an application, the responsible authority must consider-
(a) the relevant planning scheme; and
(b) the objectives of planning in Victoria; and
(c) all objections and other submissions which it has received and which have not been withdrawn; and
(d) any decision and comments of a referral authority which it has received; and
(e) any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development.
(1A) Before deciding on an application, the responsible authority, if the
circumstances appear to so require, may consider-
(a) any significant social and economic effects of the use or development for which the application is made; and
(b) the approved regional strategy plan under Part 3A; and
(c) any amendment to the approved regional strategy plan under Part 3A adopted under this Act but not, as at the date on which the application is considered, approved by the Minister; and
(d) the approved regional strategy plan under Part 3C; and
(e) any amendment to the approved regional strategy plan under Part 3C adopted under this Act but not, as at the date on which the application is considered, approved by the Minister; and
(f) any relevant State environment protection policy declared in any Order made by the Governor in Council under section 16 of the Environment Protection Act 1970; and
(g) any other strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council; and
(h) any amendment to the planning scheme which has been adopted by a planning authority but not, as at the date on which the application is considered, approved by the Minister or a planning authority; and
(i) any agreement made pursuant to section 173 affecting the land the subject of the application; and
(j) any other relevant matter."
[9] [1998] 2 V.R. 406 at 413-414
[10] [1851] EngR 970; (1851) 11 C.B. 755 at 766; [1851] EngR 970; 138 E.R. 672 at 677
[11] [1971] HCA 12; (1971) 127 C.L.R. 106 at 134-5 per Windeyer, J.
[12] [1996] HCA 45; (1996) 184 C.L.R. 333 at 345-6
[14] Above at 20
[15] Above at 21
[16] O'Connell Street Developments Pty. Ltd. v. Yarra City Council & Ors (2003) 13 V.P.R. 247
[17] (1983) 7 A.P.A. 470 at 477
[18] At the time of the Tribunal's decision s.60(1)(b)(iia) and s. 84B(1)(f) of the Act enabled a responsible authority and the Tribunal on appeal to consider where relevant any amendment to a planning scheme which has been adopted by a planning authority.
[19] Above
[20] [1982] VicRp 15; [1982] V.R. 165 applied in Hunnam v. Evans (2003) 129 L.G.R.A. 106
[21] (1985) 62 L.G.R.A. 346 at 352
[22] Melbourne 2030, page 1
[23] Above at [35]
[24] Above at [41]
[25] Melbourne 2030, page 57
[26] Ibid.
[27] [2003] V.P.R. 247
[28] Above
[29] Australian Aluminium Shop Fitters and Glazing Company Pty Ltd v City of Fitzroy - appeal decision P82/1162, 30 December 1982.
[30] Melbourne 2030 p.57
[31] Melbourne 2030 p.63
[32] Interestingly, however, it also specifically states as the first objective for sustainable residential and urban development "to respond to State Government policy for urban consolidation by accommodating medium and high density housing in appropriate locations within the city" (our emphasis)
[33] The planning consultant called to give evidence for Whitehorse also conceded that in urban design terms this was an appropriate location for a good visual landmark.
[34] Above at [114]
[35] The evidence before the Tribunal disclosed a history of dispute between Whitehorse and the Department of Sustainability and Environment as to whether Mitcham should or should not be regarded as part of the Nunawading Major activity centre.
[36] Above at [14]
[37] Melbourne 2030, p. 49
[38] Above [65]-[66]
[39] Clause 14.01-2
[40] Melbourne 2030 at p.52
[41] Above at [73]
[43] Above at [74]
[44] Above at [80]
[45] Above at [87]-[90]
Whitehorse City Council
Golden Ridge Investments Pty Ltd & Ors [2005] VSCA 198