Victorian Civil and Administrative Tribunal|2008-12-09

Yang Kuan Pty Ltd v Boroondara CC [2008] VCAT 2524 (9 December 2008)

Section 80 of the Planning and Environment Act 1987; Boroondara Planning Scheme; Business 2 Zone; Environmental Audit Overlay; Replacement Garage; Requirement for an Environmental Audit.

Yang Kuan Pty Ltd v Boroondara CC [2008] VCAT 2524

The decision of the Responsible Authority in Permit No. PP08/00518 is set aside. Condition 2 on Permit No. PP08/00518 is to be deleted. The Council may include the same wording of Condition 2 as a note on the Permit.

Permit PP08/00518 authorises the construction of a garage to the rear of the existing dwelling. The building and works essentially replace and enlarge the existing garage. The works involve an enclosed garage for two cars, with pedestrian access to the rear lane. A wider entry from the land is proposed. The garage would be 3.05 metres high with a flat roof. The cost of the works is around $40,000.

Business 2 Zone, Environmental Audit Overlay [EAO] and Special Building Overlay.

Clause 34.02 and 44.05. [The EAO does not itself trigger a permit].

The review site is a small lot on the east side of Redfern Road. It contains a dwelling with car access via a rear bluestone laneway.

I was advised by the Council that the dwelling was erected in 1990 although Ms Flint said the residential use of the land is known to extend back to 1910. Two permits were issued by the Council for alterations and additions to the dwelling in 2000 and 2001.

The area comprises a mix of land uses including dwellings and commercial activities. A property to the south of the review site is currently being redeveloped. On the opposite side of Redfern Road is a row of townhouses that were erected in around 2001.

I was advised by Mr Ng that the east side of Redfern Road was historically zoned light industrial. As explained at the hearing, my recollection of the area over several decades includes industrial uses, manufacturing, warehousing and related activities, many of which have been replaced with residential and office-based uses.

Yang Kuan Pty Ltd applied to the City of Boroondara for a planning permit to replace a garage to the rear of an existing dwelling. The works were found to be acceptable by the Council resulting in the issue of Permit No. PP08/00518. As the land is within an Environmental Audit Overlay, the Council considered the provisions of Clause 45.03-1 are mandatory so that it had no discretion to determine whether or not an environmental audit is required. Thus, the Council included Condition 2 on the Permit as follows:

Prior to the commencement of construction and/or carrying out of buildings and works:

A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970 or
An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act 1970 that the environmental conditions of the land are suitable for the sensitive use.

For the Applicant, Mr Ng contended that Condition 2 is unreasonable and unrelated to the permitted development. He requested Condition 2 be deleted. He relied on the long standing residential use of the land and the nature of works that are ancillary to that established use rather than works to enable a residential use. He submitted it would be unfair to require a retrospective audit for the whole site and the new garage will not change the residential use of the land or require significant soil disturbance.
I must decide whether Condition 2 should be retained on the Permit. Having considered all submissions, I will direct the Condition be deleted because the obligations under Clause 45.03-1 apply whether or not there is a condition on a planning permit. To alert the permit holder to the Scheme's obligations, the condition could be replaced as a permit note. The reasons for my decision follow noting that I do not recite all of the material presented by the parties as all documentation is held on the Tribunal's file.

Clause 15.06 of the State Planning Policy Framework addresses soil contamination with its objective to ensure that potentially contaminated land is suitable for its intended future use and development, and that contaminated land is used safely. Clause 15.06 requires that:

In considering applications for use of land used or known to have been used for industry, mining or the storage of chemicals, gas, wastes or liquid fuel, responsible authorities should require applicants to provide adequate information on the potential for contamination to have adverse effects on the future land use.

Clause 15.06 refers to several documents that explain the basis for this including the State Environment Protection Policy - Prevention and Management of Contamination of Land (June 2002).
The EAO is a mechanism to ensure that specific requirements are met before a sensitive use commences or any buildings or works associated with that use. The EAO has two purposes. Clause 45.03-1 has a "Requirement":

Before a sensitive use (residential use, child care centre, pre-school centre or primary school) commences or before the construction or carrying out of buildings and works in association with a sensitive use commences, either:

A certificate of environmental audit must be issued for the land in accordance with Part IXD of the Environment Protection Act 1970, or
An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the sensitive use.

That requirement does not itself trigger a planning permit; it is an obligation set by this Clause within the Boroondara Planning Scheme.
Mr Ng urged upon me an interpretation of Clause 45.03-1 that the requirement is only triggered for buildings and works to enable a sensitive use to be established. Despite understanding how the clause might be seen in that way, I am not persuaded to agree. I consider the requirement applies to a sensitive use that is established on the land meaning that buildings and works associated with that use will trigger a need to undertake an environmental assessment. If the land has proven to be not potentially contaminated or already has a statement of environmental audit (or a certificate of environmental audit) then it may be possible to request the Overlay be removed by a Planning Scheme amendment. That is not, however, the case here as there seem to be no previous statements or audits.
My findings accord with the interpretation adopted by other divisions of the Tribunal. In Aussie Invest Corporation Pty Ltd, Member Cimino said:

The land is also affected by the Environmental Audit Overlay [clause 45.03]. Under this overlay, before a sensitive use such as residential use can commence, a certificate or environmental audit must be issued for the land or an environmental auditor must issue a statement confirming that the condition of the land is suitable for the sensitive use. This is a mandatory requirement that must be met.[2]

In Melbourne City Council v Baulderstone Hornibrook Pty Ltd, Members Cimino and Gilfillan said:

We note, however, that condition 3 requires that before the development is commenced, either a Certificate of Environmental Audit or a statement form an Environmental Auditor must be issued to the effect that the condition of the land is suitable for residential use. This requirement is also set out in clause 45.03-1. We note that although the applicant has sought to have condition 3 reviewed, the practicality is that the planning scheme itself sets out the requirement to be met with respect to contaminated land and as such, the condition is redundant. The implementation of the requirements of this clause effectively overcome any constraint associated with environmental condition of the land.[3]

Member Cimino made similar comments in Refshauge and EQ Property.[4]
Ms Flint referred me to a decision by Member Martin in Norman & Tinney[5] where he directed a permit condition requiring an environmental audit be deleted. The facts are set out in the decision. The condition in issue was deleted because the condition was regarded as unreasonable in the circumstances. Four reasons were given by the Tribunal relating to:
- the use of the appeal site for residential purposes for many decades, without any known history of earlier commercial or industrial use.
- the absence of any immediately abutting commercial use that might create a material risk of the leaching or other transfer of contamination on to or underneath the site.
- the lack of information or evidence indicating any known material risk that the particular site was contaminated.
- the minor nature of the works with minimal disturbance to the soil on the property.
Member Martin also stated that he might have looked more favourably at a permit condition requiring environmental investigation where:
- the site has a current residential use but was used for commercial/industrial purposes at an earlier stage;
- there has been a history of commercial/industrial use of a neighbouring site, that might create a risk of contamination migrating on to or underneath the appeal site;
- the works on an appeal site affected by an EAO involve major disturbance to or exposure of the soil over a significant area of the site (eg demolishing all or a substantial part of a period dwelling, or clearing a substantial sealed courtyard or concrete area that has existed for a long period); or
- some credible environmental investigations have been carried out which indicate that, despite the long term residential use of the property, there is nevertheless a real degree of risk that the site might be contaminated.[6]
Mr Martin did not, on my reading of the decision, make any findings that the requirements of the EAO apply even if no condition is imposed on a permit. I have set out my conclusion on this point above.
Ms Flint submitted that even if Mr Martin's decision is taken to mean that there is discretion available with respect to the EAO's requirement, the circumstances of the current case can be distinguished. She acknowledged the long standing residential use of the land but also stated that:
- the use of the land prior to 1910 is unclear and the Council is aware of industrial and commercial uses that were close to the site;
- an environmental assessment was undertaken for land opposite the site at No. 26 Redfern Road wherein an environmental statement was issued allowing the commencement of a residential use only if certain conditions were met; she submitted this indicates the potential for contamination to extend to the review site;
- demolition for the garage may disturb soil beneath the existing garage structure and in the rear yard.
Mr Ng disagreed with the Council stating that there is no evidence of noxious uses, "the rebuilding will hardly scratch the ground's surface", there is no evidence of previous industrial use on the land, and there is little chance of contamination extending under Redfern Road to the review site.
I accept Ms Flint's submission that there is doubt that the site is clean mindful there is no evidence from the Council's investigations or Mr Ng's submissions of a previous environmental audit or statement. A dwelling is known to have occupied the site since around 1910 with no indication as to what a former use might have been. Two permits have since issued by the Council for alterations and additions to the dwelling[7], neither of which required an environmental audit, despite the land being within an Environmental Audit Overlay at those times. The area has been industrially zoned in the past and my own recollection (as I indicated at the hearing) includes panel beaters and like uses in the vicinity. There is evidence of contamination to some degree associated with land opposite.

The Council's reason for including the Condition on the Permit is understandable and there can be circumstances where no EAO applies and a similar condition is warranted.
Despite that, I find Condition 2 is redundant, or not needed, because the requirement applies by the Scheme's operation without any permit condition. For this reason, I am persuaded to direct the deletion of Condition 2. Placing a note on a permit is one means by which a permit holder can be alerted to the EAO requirement that might otherwise go unnoticed.
It is a matter for the permit holder as to whether the permit for the garage is to be enacted and if it is, based on the current Scheme provisions that apply to the land, I consider the EAO requirement would need to be met[8]. The State Environment Protection Policy - Prevention and Management of Contamination of Land (June 2002) explains the costs of meeting these types of obligations may be minor when contrasted with the social and financial costs of failing to meet the necessary requirements. In the site's circumstances, as referred to above, it would be preferable to err on the side of caution.

[1] Mr Ng suggested the Tribunal might like to refer this matter to a legal member. When invited by me to indicate whether there was any disagreement with the Tribunal as constituted deciding the matter, Ms Flint and Mr Ng said there was no disagreement.

[2] Aussie Invest Corporation Pty Ltd v Hobsons Bay CC at paragraph 29.

[3] Aussie Invest Corporation Pty Ltd v Hobsons Bay CC at paragraph xx.

[4] Refshauge v Yarra CC [2002] VCAT 1230 at paragraph 30; EQ Property v Moreland CC and Ors [2002] VCAT 1245 paragraph 24.

[5] Norman & Tinney v Yarra CC (Red Dot) [2008] VCAT 309.

[6] Norman & Tinney v Yarra CC (Red Dot) [2008] VCAT 309 at paragraph 27.

[8] If the applicability of the requirement to the buildings and works is to be challenged, then that must be through other proceedings.

Environment Act 1987

Yang Kuan Pty Ltd v Boroondara CC [2008] VCAT 2524

At a glance

Court

Decision date

Source

Judgment (33 paragraphs)

Yang Kuan Pty Ltd v Boroondara CC [2008] VCAT 2524 (9 December 2008)

Parties

Legislation Cited (2)