Zumpano v Banyule City Council [2003] VSC 215

16. Thus, if an application for a planning permit lodged pursuant to the second of those orders is ultimately unsuccessful, Mrs Zumpano will be required to comply with the first of those orders; if the application is ultimately successful, the first order will thereby be rendered nugatory. In either case the building will be permitted to remain; the only issue is whether the wall heights and overall building heights are to be reduced in accordance with the first order, or to be permitted to remain as they are, by a permit granted pursuant to the application.

. . . as was found by [the first Tribunal], parts of the walls [of the building] and a section of the overall height are above 8 metres and 12 metres respectively. As found in Mr Mawson's survey of the building, in some places the wall height is up to 2.62 to 2.93 metres above the 8 metre "trigger" height.

That Tribunal made no finding as to the extent to which the overall height of the building was above 12 metres. It appears from the decision of the first Tribunal that it found that at the northernmost point of the ridgeline of the roof the building was 12.09 metres above the natural ground level. The position is conveniently summarised in the evidence of Mr Niemann, a witness who was called by the Council:

The height of the building has been shown to exceed the limits set by the Planning Scheme as the trigger for requiring a planning permit. Whilst the overall height of the building at the highest part of the site (ie the front of the house) does not greatly exceed these limits, the external wall heights on the east and west sides exceed the 8m limit by up to 40% if the mansard is ignored in the measurement of height (ie height is measured to the point where the wall plane intersects the [roof] plane, rather than the underside of the mansard). Internal walls . . . are 32-36% higher than the limit.

25. Pursuant to the second order of the first Tribunal, Mrs Zumpano lodged with the first respondent ("the Council") as responsible authority, an application number P273/00 for a permit for the building. 125 objections were received. The application was refused, and Mrs Zumpano applied to the Tribunal for review of that decision. The decision of the second Tribunal on that application, which is here under appeal, is set out in [2] above.

28. The Court was assisted by a visit, accompanied by Mr Peake and Mr Wren, counsel for the parties, to the street outside the building and to various points from which the second Tribunal had made observations of the building.

32. It is convenient to set out here a number of well-known statements of relevant principle.

35. In Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works [2] Smith J, with whom Adam J concurred, expressed in the following terms the circumstances in which error by a forerunner of the Tribunal might lead to an order nisi for review being made absolute:

. . .the appellant, in order to succeed in this case, has to demonstrate to the satisfaction of this Court that the Town Planning Appeals Tribunal went wrong in law in arriving at its decision. It would not be enough for the appellant to show that the Tribunal's reasons for its decision are so expressed as to suggest the possibility that the Tribunal proceeded upon a wrong view of the law. This Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.

39. Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [3] :

Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.

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.

45. It is not in issue that failure by an administrative tribunal to consider relevant matters can constitute a vitiating error of law. Whether such a vitiating error has occurred will always turn on the circumstances of the particular case, including the legislative requirements imposed on the tribunal in question. In Kentucky Fried Chicken Pty Ltd v Gantidis [5] Barwick CJ said:

Of course, if it is shown that a Tribunal such as the present, in making an order within its competence, has failed to take into account relevant matters, its determination can be reviewed, as in this case, upon an order to review. So much is a settled facet of the relevant jurisprudence. But that course cannot be taken unless it clearly appears that there has been a material error of that kind. Whether or not it has occurred is a matter of fact and not of surmise. Failure in expressing reasons for decision is a very unsure guide to the resolution of such a fact, though in some cases it may be indicative. But, in any case, such a failure to advert to some material circumstance, if it exists, must be weighed in the light of all the circumstances of the proceedings including the nature and extent of the charter of the Tribunal.

49. In Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works & Ors [6], Fullagar J, after referring to Kentucky Fried Chicken and other authorities, said:

. . . the cases show, as one would expect, that decisions of [the Town Planning Appeals Tribunal] are not to be set aside by over-legalistic analyses of reasons stated or by over-zealous drawing of inferences from things not stated.

53. In Spurling v Development Underwriting (Vic.) Pty. Ltd. [7] Stephen J said:

In approaching the decision of an expert tribunal I must, I think, not only refrain from making up my own mind on the evidence before it, must not only confine myself to inquiring whether on any reasonable view of the evidence the [Town Planning Appeals] Tribunal's decision on a question of fact can be supported, but must also bear in mind that I am concerned with areas in which members of the Tribunal have special expertise and experience which the legislation plainly intends them to employ. I must, therefore, be slow to conclude that on no reasonable view could this Tribunal decide a particular matter of fact as it has.

57. In Shalit and Faine v Jackson Clement Burrows [8] this Court, following the decision of the Full Court in National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Limited [9] , upheld a decision of the Tribunal to the effect that where the need for a permit is triggered by a planning scheme control imposed for a specific purpose, then it is inappropriate to seek to control any aspect of the development or use which is unrelated to the control itself. In that case, the need for a permit was triggered only by an inundation overlay, imposed for purposes relating to floodplain management, and the Tribunal considered only those decision guidelines which it found to be relevant to that purpose.

61. The grounds set out in the Notice of Appeal read as follows:

1. The Tribunal erred in law in that it misdirected itself as to the nature and extent of the discretion it was bound to exercise when determining whether or not to grant a permit.

2. The Tribunal erred in law in determining that it was bound and had no alternative other than to refuse to grant a permit because the proposal was not consistent with one of the purposes of the Significant Landscape Overlay.

3. The Tribunal erred in law in that it reached its decision by applying specific decision guidelines prescriptively rather than deciding whether the proposal would produce an acceptable outcome in terms of all the decision guidelines and relevant considerations.

4. The Tribunal erred in law in that it misdirected itself as to the nature and substance of the Submissions made on behalf of the Permit Applicant.

5. The Tribunal erred in law in that it failed to take into account as a relevant consideration that buildings with wall heights of 8 metres and total heights of 12 metres represented an acceptable outcome for the purposes of the Planning Scheme and in particular for the purposes of achieving the objectives of the Significant Landscape Overlay.

6. The Tribunal erred in law by failing to assess what minimum height of buildings and structures was in keeping with the character of the area prior to considering whether the design of the building kept its height to a minimum.

7. The Tribunal erred in law in that it failed in the particular circumstances of the subject application to take into account as a relevant consideration that the retention of the existing building reduced in wall height to 8 metres and overall height of 12 metres and absent of any screening or landscaping was the alternative outcome to the proposal.

8. The Tribunal erred in law in that it misdirected itself as to the meaning to be attributed to the words "the area" where appearing in Clause 43.03-3 of the Planning Scheme and Clause 2.0 and 4.1 of Schedule 1 to the Significant Landscape Overlay.

9. The Tribunal erred in law in that there was no evidence before it upon which it could find that the proposal was inconsistent with or unacceptable in terms of the matters contained in Clause 43.03-3 of the Planning Scheme and Clause 2.0 and 4.1 of Schedule 1 to the Significant Landscape Overlay.

10. The Tribunal erred in law in holding that the purpose of the Significant Landscape Overlay control extended to include conserving and enhancing the character of residential areas such as those that surround the subject land and to include maintaining the character of the low density areas and misdirected itself by considering what it described as "ground up" issues, including whether the building has been aligned in relation to the contours in a manner consistent with the character of development in the area with sufficient pervious surfaces remaining to be able to ensure an opportunity for vegetation and gardens consistent with the character of a "low density residential area where landscape predominates".

11. It was not open to the Tribunal as a matter of law to interpret and apply the Significant Landscape Overlay control as it did so as to amount to a prohibition of the construction of any building that would be visible within the subject significant landscape.

12. After finding that the degree of visual intrusion by the subject dwelling might not be great the Tribunal erred in law in taking into account that its grant would create an undesirable precedent as a reason for refusing the permit.

13. The Tribunal erred in law in using its inspection to gather and create evidence in the form of its own observations upon which it then proceeded to decide the issues before it.

14. The Tribunal erred in law in not informing the parties of the particular observations it made and the precise locations from which such observations were made on its inspection that it proposed to and did act upon in making its decision and thereafter not affording the parties an opportunity of addressing such matters before it made its decision.

15. The Tribunal erred in law in that there was no evidence before it upon which it could find "that this development, without Mr Vernon's landscaping, is visible for some distance throughout the valley, including from nearby streets and open space areas".

80. Under the Banyule Planning Scheme ("the planning scheme"), the subject land is zoned Residential 1, and is subject to a Significant Landscape Overlay ("SLO"). Under the residential zoning, a planning permit is not required for the building. The requirement for a permit derives solely from the provisions of clause 42.03-2, relating to the SLO, and clause 3.1 of Schedule 1 to clause 42.03 ("the schedule"). The relevant part of the land affected by the SLO is, speaking loosely, that part of the western slope of the wall of the Yarra Valley which lies between Burke Road and Banksia Street. The subject land is almost at the western limit of the land affected, and is situated on the ridge line which forms the boundary of the valley wall. The opposite slope of the valley wall lies partly in the City of Manningham and partly in the City of Boroondara, and is thus not subject to the planning scheme.

83. Clause 41 of the planning scheme deals with the operation of overlays. That clause provides that the provisions of an overlay apply in addition to the provisions of the zone and any other provision of the planning scheme, and requires the responsible authority to decide whether a proposal which is the subject of an application for a permit would produce acceptable outcomes in terms of the State Planning Policy Framework, the Local Planning Policy Framework, the purpose and decision guidelines of the overlay and any of the other decision guidelines in clause 65 of the planning scheme.

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To conserve and enhance the character of significant landscapes.

* A statement of the nature and key elements of the landscape.

* The landscape character objective to be achieved.

s if a schedule to this overlay specifically states that a permit is not required.

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* The statement of the nature and key elements of the landscape and the landscape character objective contained in a schedule to this overlay.

* The conservation and enhancement of the landscape values of the area.

* The impact of the proposed buildings and works on the landscape due to height, bulk, colour, general appearance or the need to remove vegetation.

* The extent to which the buildings and works are designed to enhance or promote the landscape character objectives of the area.

* The impact of buildings and works on significant views.

* Any other matters specified in a schedule to this overlay.

113. Schedule 1 to the Significant Landscape Overlay reads, so far as relevant:

1.0 Statement of nature and key elements of landscape

The areas covered by this overlay are part of, or are directly adjacent to, significant landscapes, which consist of substantial areas of open space, golf courses, wetlands, vegetation and other natural habitat along the Yarra River and lower reaches of the Plenty River. Such landscapes provide extensive views and an opportunity for a sense of remoteness in the valleys of the watercourse with only limited intrusion of built forms. Some areas consist of lower density housing where the landscape predominates.

* To protect areas along watercourses and their immediate environs from visual intrusion caused by the inappropriate siting or appearance of buildings and works.

* To encourage development in keeping with the character and appearance of the area.

* To protect and enhance the vista when viewed from the watercourse, its banks, nearby streets, adjoining public open space, or from prominent scenic view points within the watercourse environs.

* To retain and encourage additional screening of buildings adjacent to the watercourse and adjoining public open space.

* To encourage development consistent with any approved concept plan for the area.

* To protect and enhance a sense of remoteness in the valley of the watercourse.

* Any building which is to be used for a dwelling, or outbuilding normal to a dwelling, unless:

s the height of any part of a wall is more than 8 metres above the natural surface level of the ground directly below it; or

s any part of the building is more than 12 metres above the natural surface of the ground directly below that part.

* Any works (other than a tennis court) normal to a dwelling.

Before deciding on an application, the responsible authority must consider:

* The Middle Yarra Concept Plan - Burke Road to Watsons Creek, December 1993; the Lower Plenty River Concept Plan, October 1994; or any other approved concept plan, as relevant.

* Whether the location, bulk and appearance of the building or works will be in keeping with the character and appearance of the area.

* Whether the location, bulk, outline and appearance of the building or works will be in keeping with or enhance the vista when viewed from the watercourse, its banks, nearby streets, adjoining public open space, or from prominent scenic view points within the watercourse environs.

* The need to ensure adequate screening of buildings and works, for example:

s when viewed from the river or its banks, the outlines of buildings on ridgetops are totally screened;

s when viewed from within Metropolitan and State Park boundaries, at least half of each building and structure is screened.

* The need to encourage building design which is in keeping with the character of the area. This includes:

s ensuring that ridge lines on buildings are parallel with site contours on land with an average slope greater than 1 in 10;

s keeping the height of all buildings and structures to a minimum.

* The need for exterior building colours and materials to be non-reflective and blend with the natural colour of the surrounding environment. Preferred colours for roofs are dark, non-reflective grey, brown, olive green or black.

* The need for all excavation and fill slopes to be of a gradient less than 1 in 5, revegetated immediately following construction and maintained thereafter by the applicant.

* The need for a planting strip of at least 2 metres width to separate parallel retaining walls and be appropriately planted.

* The benefits of limiting retaining walls to not more than 1.5 metres above ground level.

* The benefits of requiring at least 50 percent of each site to comprise a pervious surface such as retained native vegetation, a garden or lawn and in addition roads and driveways to comprise a pervious surface such as gravel or toppings.

* If appropriate, the views of Parks Victoria, with those views to be sought using Section 52 of the Planning and Environment Act.

152. Clause 65 of the planning scheme, referred to in clause 41 and in the introduction to the decision guidelines in clause 42.03-3, reads:

Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.

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 [Planning and Environment Act 1987].

* 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.

* Factors likely to cause or contribute to land degradation, salinity or reduce water quality.

* Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site.

* The extent and character of native vegetation and the likelihood of its destruction.

* Whether native vegetation is to be or can be protected, planted or allowed to regenerate.

* The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.

171. Section 60(1) of the Planning and Environment Act 1987, referred to in clause 65, reads:

60. What matters must a responsible authority consider?

(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

186. The second Tribunal (hereafter "the Tribunal") found that the effect of clause 42.03-2, relating to the SLO, and clause 3.1 of the schedule was that a permit was required for the whole of the building, and not merely for those parts of the building above what they referred to as the "trigger heights" prescribed by clause 3.1 of the schedule.

189. Mr Hooper submitted that that finding was wrong. Because no permit was required for a single dwelling below the trigger heights, the planning scheme in effect approved the construction of any such dwelling, however much it might be inconsistent with the guidelines as to such matters as bulk, screening, ridgelines and relationship to the vista which the SLO was designed to protect. In effect, the planning scheme was saying that such a building did not cause a visual intrusion of a kind inconsistent with the purpose and objectives of the overlay. Thus there was no justification for considering such matters in the context of the present application, and all that needed to be considered was the effect of the building in so far as it exceeded the trigger heights. If the draftsman of the planning scheme had intended to control the intrusive effect of buildings on the significant landscape, a permit would have been required for all buildings, regardless of their height. It was discriminatory, unfair and illogical to control only buildings above a certain height, when the objective was related to the appearance of the whole area.

192. However, as a matter of logic I do not accept those submissions. The planning scheme, in clause 3.1 of the schedule, draws a line, defined by the trigger heights, and analogous to the boundary of a zone or overlay, between a dwelling which requires a permit and a dwelling which does not require a permit; no more and no less. There is often a perceived unfairness at such a boundary. The reasons for placing that line at the trigger heights are not explained, nor do they need to be explained. Like many planning enactments, clause 3.1 of the schedule involves a compromise between competing principles. The inferences sought to be drawn by Mr Hooper do not necessarily follow from the text of that provision, or from the nature of the area affected by the overlay [10]. I see no error in the finding of the Tribunal set out in [22] above.

195. In the submission of Mr Hooper, the Tribunal's finding ignored the situation referred to at [4] above. Whether or not the permit is granted, the building will remain, and will form part of the relevant landscape; the only issue is whether the wall heights and overall building height are to be reduced in accordance with the first order of the first Tribunal, or to be permitted to remain as they are, by the granting of a permit. As a matter of logic, that is a relevant consideration. However, as the Tribunal pointed out, none of the decision guidelines requires such a matter to be taken into account. The analogy with the boundary of a zone or overlay is relevant here.

198. The Tribunal considered the submissions put to it as to the purpose of the controls relevant to the SLO. It found that the primary objective of those controls was to maintain and enhance the broad extensive landscape and views of the Yarra valley, including the valley walls, when viewed from the river environs and other vantage points. It tacitly interpreted the expression "the area" in the controls as referring to that landscape. It also found that the mechanism for ensuring that the character of this significant landscape was conserved and enhanced, was by maintaining the character of the low density residential areas and the other places comprising the component parts of the landscape as described in clause 1 of the schedule. However, it emphasised that the assessment of that character was to be concerned only with such macro issues as height and siting in relation to vegetation and landform, and not with matters such as frontage setbacks and fence height.

201. Having reached that conclusion as to the purpose of the controls, the Tribunal, consistently with the decisions of this Court in National Trust and Shalit and Faine v Jackson Clement Burrows, assessed the proposal against those of the decision guidelines which it considered to be relevant to the achievement of that purpose. That approach is consistent with the requirement in clause 42.03-3 to consider "as appropriate" the guidelines listed in that clause, including "any other matters specified in a schedule to this overlay". The Tribunal, in effect, decided that the guidelines which it was appropriate for it to consider in determining the application before it were those which related to what they had found to be the purpose of the SLO.

204. In doing so, the Tribunal assessed the proposal against the fourth, fifth and tenth dot points in clause 4.1 of the schedule. It found (rejecting the evidence of Mr Vernon, a landscape architect) that adequate screening of the building had not been and could not be ensured; that the ridgeline of the building was not aligned parallel with the contours; that the height of the building had not been kept to a minimum; and that only 13.9 % of the site comprised a pervious surface.

207. Measuring the proposal against the purpose set out in clause 42.03 as "to conserve and enhance the character of significant landscapes", the Tribunal found that the building did neither of those things. It found on inspection that the building was visible for some distance throughout the valley, including from nearby streets and open space areas. Accepting that the building was but a minor component of the view, it nevertheless found its visibility to set an undesirable precedent. In this context, it took into account, without specifically enumerating them, the second to sixth dot points in clause 41.03-3, and the second to fourth dot points in clause 4.1 of the schedule, to all of which it had already referred. Further, it spent some time on consideration of the relevant provisions of the Middle Yarra Concept Plan, as required by the first dot point in clause 4.1 of the schedule.

210. Concluding that the building was not consistent with the purpose of the overlay, the Tribunal made the orders set out in [2] above. I find that the Tribunal exercised its discretion properly. It selected the criteria which in the judgment of the members were relevant to the objectives of the SLO, as it was required to do, and measured the application against those criteria. Considering the matter in the light of the authorities cited in [9] to [14] above, there is no ground on which the Court could find any vitiating error of law in the selection or use of those criteria.

213. Mr Hooper enumerated a number of aspects of the Tribunal's decision and of the material which was put before it, which, in his submission, indicated that the minds of the members were not fixed on the proper parameters of the discretion which they were exercising. As I have found that the Tribunal did exercise its discretion appropriately and according to law, it is not necessary for me to consider that submission.

216. Mr Hooper submitted that the Tribunal should have defined the "minimum" height referred to in the fifth dot point in clause 4.1 of the schedule. While the expression "kept to a minimum" is not helpful to a person proposing to construct a building, its interpretation is a matter of the discretion of the decision-maker, whether the responsible authority, or as in this case the Tribunal, taking into account all the relevant circumstances. It is not incumbent upon the decision-maker in a particular case to define "minimum" in absolute terms.

219. Mr Hooper submitted that the Tribunal had misdirected itself by treating the decision guidelines in the relevant provisions of the planning scheme as though they were prescriptive. However, the guidelines are there to be applied in accordance with the discretion conferred upon the decision-maker, [11] to be implemented in the light of the decision-maker's expertise and experience, as was done by the Tribunal in this case.

222. As to the visibility of the building, Mr Hooper submitted that the views stipulated in the overlay as warranting protection were the views from the river environs towards the slope of the valley wall, which was subject to the overlay. However, on my reading of the schedule, that is not necessarily the case; the views requiring protection may include views towards the river from the land subject to the overlay.

225. Mr Hooper submitted that it was not open to the Tribunal, acting reasonably, to have found as it did that the building "is visible for some distance throughout the valley, including from nearby streets and open space areas". In my view, that finding might have been less sweepingly expressed, although it is qualified by the statement that "we accept, given the `broad view' of the landscape, that [the building] is but a minor component.". Having said that, I accept that the finding is supported by the evidence, including the evidence as to the places from which the Tribunal was asked to view the building.

228. Mr Hooper further submitted that the manner of expression of the Tribunal's finding as to the visibility of the building suggested that the members of the Tribunal had made their own inspection unaccompanied by the parties, from view points that were not in evidence, and had not given the parties the opportunity to make submissions as to what they had seen. I do not draw that inference.

231. Mr Hooper submitted that the Tribunal erred in its finding that the SLO was directed towards the elimination of the kind of incremental change which would be encouraged by granting a permit for the building, and that the grant of a permit would create a "most undesirable precedent". He referred to Mornington Peninsula Shire Council v Savage [12] in which the Court said:

It cannot be right to refuse to make a decision which the decision maker considers to be right, on the ground that it is likely to be applied in later cases where to apply it might be thought to be wrong.

However, it is apparent that the Tribunal, on other grounds, did not consider that it would be right to grant the permit; the matter of incremental change was an additional ground to those on which it otherwise relied for its decision, and a legitimate ground in all the circumstances.

237. It will be apparent from the foregoing that none of the grounds in the Notice of Appeal succeeds; it is not necessary to deal with them seriatim. For the reasons given, the appeal will be dismissed. Counsel may wish to make submissions as to costs.

[2] (1971) 38 LGRA 6 at 18

[3] [1986] HCA 40; (1986) 162 CLR 24 at 40:

[5] [1979] HCA 20; (1979) 140 CLR 675 at 679-80

[6] (1980) 44 LGRA 65 at 67

[7] [1973] VicRp 1; (1973) VR 1 at 11

[8] [2002] VSC 528

[9] [1976] VicRp 60; [1976] VR 592

[10] see Michaelis Bayley v MMBW at [12] above

[11] see Spurling v Development Underwriting at [13] above

[12] [2002] VSC 399 at [26]