VPELA YPG MASTER CLASS CLASSIC VCAT CASES

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1 VPELA YPG MASTER CLASS CLASSIC VCAT CASES 11 SEPTEMBER 2013 HELEN GIBSON DEPUTY PRESIDENT, PLANNING AND ENVIRONMENT LIST WHAT IS A CLASSIC VCAT CASE? 1 In agreeing to speak this evening, I have been given virtual carte blanche to speak about any cases that I have found to be particularly interesting, noteworthy or challenging to decide, particularly if they consider issues that seem to appear before the Tribunal time and time again. 2 Given the number of cases that VCAT hears and determines each year, that doesn t really help me to narrow the scope of my presentation very much. I therefore sought guidance from other VCAT members about what sort of cases they felt I should focus on and they were more helpful, although still suggesting more material than I can possibly do justice to in the limited time available. 3 I have therefore excluded classic cases dealing with specialised areas of law or practice, such as existing use rights 1, extension of permits 2, the ambit of secondary consent 3, or the rights of third parties where there is an exemption from third party notice and review rights 4. 4 Rather, in compiling my list of classic VCAT cases, I have focussed on basic decision-making and bread-and-butter propositions that any member or professional person appearing before the Tribunal in the Planning and Environment List should be aware of. There are numerous examples of decisions, which are good examples of the application of principles, but my selection of classic cases invariably contain an analysis or pithy summation of a planning principle that resonates with members and to which they keep referring. 5 I have confined my choice of cases to two main categories as follows: The ambit of discretion, which includes the National Trust principle, the concept of acceptable outcomes, the relationship of the planning and environmental regimes and repeat appeals; and Neighbourhood character and amenity. 1 Fosters Group Ltd v Mornington Peninsula SC (includes Summary) (Red Dot) [2010] VCAT 104; Wellington & Ors v Surfcoast SC (includes Summary) (Red Dot) [2011] VCAT Kantor v Murrindindi SC [1997] 18 AATR Westpoint Corporation Pty Ltd v Moreland SC [2005] VCAT West Valentine Pty Ltd v Stonnington CC [2005] VCAT 224 Victorian Civil and Administrative Tribunal (VCAT) 55 King Street Melbourne VIC 3000 Website GPO Box 5408 Melbourne VIC 3001 Ausdoc DX Melbourne

2 AMBIT OF DISCRETION The National Trust principle 6 The very first question anyone applying for a permit or considering a permit application or application for review should address is: Why is a permit required? You should check all relevant planning scheme provisions, including the zone, overlays, particular provisions in clause 52, general provisions, exemptions and prohibitions, and make a list of every permit trigger. Having done that, you then need to consider what factors are relevant to the exercise of discretion under each permit trigger. 7 It is a fundamental principle that a planning discretion may only be exercised for the purpose for which the control is conferred and not for other purposes This is known as the National Trust principle after the case National Trust (Vic) v T & G Mutual Life Association Ltd 5. 8 In the National Trust case, the relevant planning control governed building height. The National Trust endeavoured to rely on a general provision of the planning scheme akin to what is now clause to protect a heritage building from demolition. The Supreme Court said it could not do this because: The discretion conferred by CL24(4) is one conferred for the purpose of controlling the height of buildings. In that connection it is proper to have regard to what is prescribed by CL5A. But to use that discretion for the purpose of endeavouring to ensure the conservation of an historic building and to regulate the orderly and proper planning of the area in which it is situate and the amenity of the neighbourhood, in other respects than with regard to the height of the building, is to endeavour to achieve ends outside the purpose for which the power is conferred and to intrude into the exercise of the discretion matters which are extraneous to it. The responsible authority could not properly refuse the permit under the Planning Scheme on such considerations and could not properly have regard to them in determining whether to grant a permit or not. 9 The application of the National Trust principle is often encountered in situations where a permit is required under the Heritage Overlay but objectors wish to oppose a development on grounds relating to amenity, such as overlooking, overshadowing, visual bulk or the like. Unless the grounds are related to the heritage significance of the place or one of the decision guidelines having regard to the purpose of the control, they will not be relevant. 6 Acceptable outcomes 10 Nevertheless, like many aspects of planning, whilst the principle is easy enough to articulate, the correct application of the principle can be more complex, especially in situations where there is more than one permit trigger. The 5 (1976) VR For example, see Hermann v Port Phillip CC & Ors [2011] VCAT For examples of the application of the National Trust principle in cases involving other planning controls, see Victorian National Parks Association Inc v Iluka Resources Limited [2004] VCAT 20 and Great Southern Property Managers v Colac Otway SC [2006] VCAT 706 VPELA YPG Master Class Classic VCAT Cases Page 2 of 11

3 University of Melbourne v Minister for Planning 7 is a classic VCAT case, which illustrates this proposition and the concept of acceptable outcomes. 11 The proposal to establish the Peter Doherty Institute for Infection and Immunity on the corner of Elizabeth and Grattan Streets, Melbourne, to be funded by the Commonwealth Government to the tune of $90 million, required demolition of the heritage building on the site the former Ampol House, which was a C graded building of local heritage significance. Architecturally, the building was notable principally for its dramatic glazed circular corner tower, housing Melbourne s tallest concrete spiral stair. 12 The proposal triggered the need for various permits under the planning scheme. The decision to grant a permit for demolition and for the use and development of a research and development centre and education centre was one that involved an application of the principles of integrated decision-making. Integrated decision-making requires that planning decisions should balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations Thus, whilst a proposal to grant a permit for demolition under the Heritage Overlay requires consideration of heritage related issues under the National Trust principle, such consideration does not deprive the responsible authority (or the Tribunal) of a discretion to grant a permit when, on balance and having regard to the other permissions needed and the totality of the policy framework, a permit for demolition would be an acceptable outcome. 14 The Tribunal in The University of Melbourne case explored in some detail the need to balance conflicting policy objectives when exercising discretion in such circumstances 9. Whilst I encourage you to read the decision in full, I will quote from it because the decision includes comments by Osborn J in the Supreme Court case of Rozen v Macedon Ranges SC 10 about the meaning of acceptable outcomes within the meaning of clause 65 of all planning schemes. [76] Clause 65 commences with the following statement: 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. [77] The Supreme Court has recently considered the meaning of acceptable outcomes within the terms of clause 65 in Rozen v Macedon Ranges SC 11. After referring to the provisions of what is now clause and clause 65, Osborn J said: 7 [2011] VCAT Clause SPPF 9 at paras [71] [84] 10 [2010] vsc [2010] VSC At the time of the Rozen decision, the provisions equivalent to clause were included in clause of the SPPF contained in all Victorian Planning Schemes. VPELA YPG Master Class Classic VCAT Cases Page 3 of 11

4 [171] The test of acceptable outcomes stated in the clause is informed by the notions of net community benefit and sustainable development. An outcome may be acceptable despite some negative characteristics. An outcome may be acceptable because on balance it results in net community benefit despite achieving some only of potentially relevant planning objectives and impeding or running contrary to the achievement of others. [172] The weight to be given to the various considerations which may be relevant on the one hand, and to particular facts bearing on those considerations on the other hand, is not fixed by the planning scheme but is essentially a matter for the decision maker. 13 [173] Furthermore, the potential complexity of issues raised by a particular application renders the question of what would be the optimal form of development for use in a particular case fundamentally difficult of resolution and one on which different minds might reasonably differ. [174] In Knox City Council v Tulcany Pty Ltd, I observed: The planning scheme does not require an ideal outcome as a prerequisite to a permit. If it did, very few, if any, permits for development would ever be granted and there would be difficult differences of opinion as to whether the outcomes were in fact ideal. The Tribunal is entitled to grant a permit where it is satisfied that the permit will result in a reasonably acceptable outcome having regard to the matters relevant to its decision under the planning controls. 14 [175] For these reasons I accept the appellants submission that the test which the Planning Scheme requires to be applied is one of acceptable and not ideal outcomes. [176] The question in the present case is whether the Tribunal s reasons read in context demonstrate that it has failed to apply the correct test. The underlying task of the Tribunal is after all to reach the correct or preferable decision on the material before it. 15 [177] In this sense the preferable outcome is not to be equated with the ideal outcome. [78] As the Supreme Court observed, the test of acceptable outcomes is informed by the notions of net community benefit and sustainable development. An outcome may be acceptable despite some negative characteristics. In the present case, we have concluded that, on balance, development of the Peter Doherty Institute will result in a net community benefit despite the negative outcome resulting from the loss of the former Ampol House. [79] We have earlier referred to the strong policy support for establishment of the Peter Doherty Institute on the subject land as part of the Parkville Precinct, the public health benefits that will flow from establishment of the institute and the contribution it will make to the economic development of Melbourne and its competitive advantages. We consider these are all important and substantial community benefits. [80] We accept that retention of heritage assets is also a community benefit. The physical character of cities and the contribution which places of heritage 13 [Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1985) 162 CLR 24, 41] 14 (2004) 18 VPR 229, [Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (2008) 19 VR 422, 433; McDonald v Guardianship and Administration Board [1993)] 1 VR 521, 528 VPELA YPG Master Class Classic VCAT Cases Page 4 of 11

5 significance make to that character is another contributing factor in the way in which cities compete with one another. [81] Yet cities must be regarded as palimpsets: they must be capable of growth and adaptation to meet new needs. Over times [sic] the buildings of one era will invariably require replacement or adaptation to meet these needs. It is important to conserve and enhance buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value. 16 However, when a conflict arises between this objective and other objectives, and a choice must be made between them, the Tribunal must balance those conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. [82] In the present case, we conclude that a greater community benefit for present and future generations will ensue from the establishment of the Peter Doherty Institute than from retention of the former Ampol House. The demolition of this building will be a loss and will be a negative consequence. However, it will not be anywhere near so great a loss as the community would suffer if the Peter Doherty Institute did not proceed. The former Ampol House is of local significance under the planning scheme. Its loss will be felt locally. But given the scale of risks posed by the emergence of infectious diseases that we have no capacity to combat, the loss of the Peter Doherty Institute for Infection and Immunity would be a loss for the community at a national and international scale. [83] For the reasons we have given earlier, we consider that the design of the proposed new building will meet the needs of the Institute and retain sufficient flexibility to be adaptable for future alternative uses. Its five star rating for a laboratory building represents a sustainable development. It is also a building of high architectural merit and its height is appropriate in its context. [84] We therefore conclude that a permit should be granted for demolition of the former Ampol House and for the use and development of the Peter Doherty Institute. Relationship of planning regime and environmental regime 15 The concept of integrated decision-making embodied in The University of Melbourne case is illustrative of Victoria s highly sophisticated, policy based planning system. The integration of the planning system with other legislative systems, and the ambit of discretion that is consequently available when considering a planning permit, was the subject of another classic case, SITA Australia Pty Ltd and PWM (Lyndhurst) Pty Ltd v Greater Dandenong CC The SITA case concerned the Lyndhurst facility, one of only two landfills in Victoria licensed by the EPA to accept prescribed industrial waste. It had been operating for the past 16 years accepting putrescible waste and prescribed industrial waste pursuant to two planning permits issued in 1990 and In 2006, the Tribunal, in a proceeding instituted by the Greater Dandenong City Council, declared that the materials permitted to be deposited by the EPA licence were hazardous wastes in the natural and ordinary meaning of the words, and 16 See the objectives of Planning in Victoria section 4(1) of the Planning and Environment Act 1987 and clause Melbourne Planning Scheme. 17 [2007] VCAT 156 VPELA YPG Master Class Classic VCAT Cases Page 5 of 11

6 as such were prohibited from being deposited at the Lyndhurst facility by virtue of condition 11 in the two permits. The effect of this declaration was to render unlawful those aspects of the current operation of the Lyndhurst facility relating to the disposal of prescribed industrial waste pursuant to the licence. 17 In an application under section 87 of the Planning and Environment Act 1987, the Tribunal decided that the two permits should be amended to remove these conditions. 18 The SITA case is important because of its consideration of the relationaship between the planning and environmental regimes found in the Planning and Environment Act 1987 and the Environment Protection Act The Tribunal found that: [21] The EPA is a repository of expertise that enables it to undertake expert scientific and engineering scrutiny of proposals to ensure that all reasonable steps are taken to reduce risks to human health and the environment to acceptable levels. 18 The EPA possesses a level of expertise that is not possessed by planning and responsible authorities. [22] In general terms, the EPA is the pre-eminent, expert authority within the state on all matters concerning the control of pollution and protection of the environment. In our view, its assessment of matters related to these issues ought be accepted as authoritative and in preference to other assessments or opinions in the absence of an established process whereby competing assessments or opinions can be tested and a binding determination made. The same approach should be adopted with respect to official EPA policies and guidelines. It is not appropriate for the Tribunal (or others) to look behind these documents to challenge or discount their content. They should be accepted and applied by the Tribunal whatever shortcomings individuals may consider they have. This is a matter of good public policy in addition to it being a legislative requirement The Tribunal went on to consider whether planning permits and EPA licences should cover the same matters, and whether the planning and environmental regimes were interlocking or independent regimes. On this latter point the Tribunal held that: [42] from a public policy perspective the two systems should be interlocking, that there should be consistency between them and that the EPA should be regarded as the pre-eminent authority in the state when it comes to matters regarding the control of pollution and protection of the environment. Nevertheless, in law the planning and environmental systems are independent in terms of enforcement, and the need for and operation of permits, licences and works approvals. [47] We agree that as a matter of good practice and sensible policy conflict between planning permits and EPA licences should be avoided. Further, we have indicated that as a matter of general principle, detailed regulation of the 18 We are aware that the EPA consists only of one person, the Chairman. However, in the present context where we refer to the EPA we are referring to the organisation. 19 For example, see section 84B(2)(e) of the Planning and Environment Act 1987, and various provisions of the State Planning Policy Framework in planning schemes such as clauses , and VPELA YPG Master Class Classic VCAT Cases Page 6 of 11

7 technical aspects of use or development allowed under a planning permit should be left to the EPA licence. However, we consider it is wrong in law to say that an EPA licence takes precedence over a planning permit in the event of a discrepancy between them. Each must be complied with. 20 The findings by the Tribunal in the SITA case on these issues have guided numerous later decisions under both the Planning and Environment Act 1987 and the Environment Protection Act 1970, in particular the types of conditions that should be included in a planning permit. 20 Repeat appeals 21 Finally, under the heading of ambit of discretion, I will refer to what are termed repeat appeals. They are cases where there has been a previous similar permit application for the same land. 22 I have selected as my classic VCAT case on this subject, the decision in Sprut Pty Ltd v Stonnington CC 21. The details of the case are not particularly relevant. Suffice to say the site had earlier been refused a planning permit for a four-storey development and the current application was for another four-storey development. All parties were of the view that this planning application should be considered in line with the usual principles applied to repeat appeals. The Tribunal commenced its consideration by setting out those principles as they are found in Amoco Australia Limited v City of Berwick 22, itself a classic case. [12] In the seminal case of Amoco Australia Limited v City of Berwick 23, the Planning Appeals Board (a predecessor of the Tribunal) had stated: and later: Although the Board believes that it should deal with this appeal on its merits it also holds that, in determining the appeal, it should pay regard to the previous decision of the Board and give great weight to that decision. Public policy demands that there be some end to litigation. If applicants were to repeatedly come before the Board, perhaps seeking to exhaust the patience of the Board or even in an attempt to pick and choose a suitable division of the Board to hear the appeal, then it would be to the detriment of the appeals system. Moreover repeated appeals would impose unnecessary costs on respondent parties including, in some cases, psychological costs. One can imagine a case where a developer wears down both a Responsible Authority and objectors by repeatedly making fresh applications. This ought to be discouraged. the Board believes that an applicant can make repeated applications for a permit and repeated appeals to this Board. However in determining any subsequent appeal the Board should take the earlier determination into account and give it great weight. Generally speaking the earlier decision should not be reversed 20 For example, see All Vet Waste Pty Ltd v Golden Plains SC [2011] VCAT 758; Grosvenor Lodge Pty Ltd v Mornington Peninsula SC & Ors [2010] VCAT 1006; Transpacific Waste Management Pty Ltd v Kingston CC & Ors [2012] VCAT [2012] VCAT (1983) 1 PABR (1983) 1 PABR 166 at 169 per (the then) Senior Member Morris VPELA YPG Master Class Classic VCAT Cases Page 7 of 11

8 unless the applicant can show a change in circumstances which warrant a different view. [13] In reaching its view in Amoco, the Board cited with approval the following passage from the decision of Watkins v MMBW 24: We should also state that as a matter of principle the Tribunal should act with great caution when considering whether a previous decision should be reversed. A change in circumstances warranting a different view must be positively shown otherwise the reversal of earlier decisions would introduce such a state of inconsistency into the appeals system that chaos could occur with unsuccessful parties applying and appealing time after time. 23 The Tribunal in Sprut approved the following summary of relevant factors to consider when reviewing an application that is similar to a proposal that has been the subject of previous Tribunal findings 25 (sometimes known as the Reichert principles ): significant changes in the application itself; changes in the circumstances of the land and its surrounds; changes in planning policy; and/or changes in the interpretation of the facts or law relevant to the Tribunal s consideration. 24 However, it cautioned against an over-zealous application of these principles for two reasons: [16] First, the classic repeat appeals should be distinguished from what has sometimes been described as correcting repeat appeals 26 - that is, where the Tribunal has refused an earlier application but indicated a modified form of development or changes that might be acceptable, and the repeat appeal comprises a genuine attempt to address those issues and [18] Secondly, irrespective of whether the repeat appeal is in the nature of a classic or correcting repeat appeal, the role of the Tribunal is not to determine whether the proposal before it would have satisfied the earlier (and perhaps differently constituted) Tribunal, nor to summarily determine the matter solely by reference to the Reichert principles. This is a sometimes misunderstood notion. As Amoco itself indicated, the role of the Tribunal is to still consider the new application before it on its merits but, in doing so, to give great weight to the Tribunal s decision on the earlier application having regard to the usual principles that have evolved for this purpose Sprut is a classic VCAT case not just because of its analysis of the principles applicable to repeat appeals, but also because of its careful application of those principles to the case before it. The decision is worth reading for this aspect as well. 24 (1977) 9 VPA 184 at Outlined in decisions such as Reichert v Banyule City Council (1996) VICCAT See Reid v Nillumbik SC (No 3) [2011] VCAT 925 per Senior Member Byard 27 See also Lemansen Pty Ltd v Boroondara CC [2012] VCAT 266 at [30]-33] per Member Deidun VPELA YPG Master Class Classic VCAT Cases Page 8 of 11

9 NEIGHBOURHOOD CHARACTER 26 I will now consider a selection of classic VCAT cases that are relevant to the substance of so many cases, which the Tribunal is called upon to decide neighbourhood character. 27 The policy requirement to respect neighbourhood character appears in various places in the SPPF and LPPF of planning schemes. In Elcheikh v Banyule CC 28, the Tribunal was considering a contemporary style of architectural development in a street characterised by ornamental gardens, single driveways, recessed building forms, and a pattern of pitched roof forms and post-war design elements. The member admitted to liking the design, but that is not the point. As he said: [73] Ultimately I have to decide, in accordance with numerous references in the planning scheme whether the proposed development respects the neighbourhood character [74] I accept that respect does not mean replicate, mimic or repeat and it could result in a quite different design. I have said in other applications that I think that respect requires a building to be a comfortable companion to the other assets that are characteristic of the area. These assets might be buildings, they might be public realm features or they might be vegetation. Respect in a building context typically is achieved by incorporating elements which complement built form features in the area such as style, height, setbacks, materials, colours. Other elements are more intangible such as rhythm, spacing, recessive elements and public realm. 28 The Tribunal went on to form the view that the proposed building did not respect the character of the area. The building was too dominant, too different, too obvious and too much of a statement. As a consequence, it had an overbearing and alien presence in the street and the area. 29 Many members have found the concept of a building being a comfortable companion to the other assets that are characteristic of the area to be a good guide in evaluating whether something respects neighbourhood character. 30 As a counterpoint to the comfortable companion case about neighbourhood character policy, there is the background hum case, which is another classic VCAT case concerning neighbourhood character. This is the case with the unwieldy name of NJJJKT Pty Ltd v Whitehorse CC In this case the Tribunal comments on three themes within metropolitan policy which require change in urban environments to accommodate demographic changes including population growth. They are urban consolidation, housing diversity, and affordability. In commenting on these themes, the Tribunal said: [12] Informed participants in the planning approval process recognise that strategies in relation to urban consolidation, diversity and affordability are equally important to strategies in relation to neighbourhood character. However, it is my concern that because neighbourhood character is inherently site specific and local in its application then neighbourhood character considerations dominate the debate about particular projects while 28 [2010] VCAT [2008] VCAT 1410 VPELA YPG Master Class Classic VCAT Cases Page 9 of 11

10 consolidation diversity and affordability are reduced to a background hum in our thinking. [14] I think there needs to be a greater emphasis on the importance of metropolitan policies in relation to urban consolidation, housing diversity, and affordability. I do not say that neighbourhood character is of less importance, rather I say that in each decision consolidation diversity and affordability need to be at the forefront of our thinking, and not merely a background hum. 32 The expression of these sentiments in the background hum case echoes another classic VCAT case, Rowcliffe Pty Ltd v Stonnington CC 30. It too was concerned with the need to balance metropolitan policy objectives of urban consolidation with the retention/enhancement of neighbourhood character. The case concerned a development of seven buildings containing 177 dwellings on a large site with three street frontages in Malvern. In its assessment of the proposal, the Tribunal commented with respect to height and scale that: AMENITY [54] If mere visibility becomes the test across metropolitan Melbourne, then it will be virtually impossible to construct buildings above the prevailing scale. This, in turn, would render it impossible to achieve the clearly stated urban consolidation objectives expressed in the Planning Scheme, objectives which Clause 11 requires us to give effect to. The Tribunal rejects the notion that, because some of the buildings would be visible above the existing built form, they are therefore unacceptable. Rather, the test is whether the proposal is complementary to the surrounding area, and of a scale that can be assimilated without unreasonably disturbing the surrounding built environment. 33 There is one last classic VCAT case I wish to mention concerning amenity at the interface between two zones and residential amenity expectations. The case is Buckerfield Architects v Boroondarra CC 31. As you may gather, it concerned a proposal to construct a three storey office building in a commercial zone at the interface with a residential zone. The Tribunal had this to say regarding the design of the development: [19] in an interface situation such as this there are competing objectives on either side of the residential / commercial divide and a proper planning outcome is one which balances those competing objectives taking into account all of the opportunities and constraints of the site and its neighbours. Inevitably compromises will have to be made to reach an acceptable outcome which satisfies those competing objectives. The commercial site cannot ignore that they have a residential abuttal; nor can a residential property expect the sort of residential amenity one would anticipate in an area wholly zoned for residential purposes. [20] I approach the task therefore of the interface issue not with a view to achieving a perfect residential amenity outcome; nor a perfect commercial outcome. If it were that simple I could favour one over the other and (say) allow a box like office building on the boundary with extensive windows as might be found in a wholly commercial area. Or I could favour a one storey 30 [2004] VCAT [2004] VCAT 659 VPELA YPG Master Class Classic VCAT Cases Page 10 of 11

11 CONCLUSION commercial building well offset from the boundary with a forest as a buffer in deference to residential amenity. Rather, I must look for a balance which satisfies the "reasonable expectations" of all parties. 34 You may have noticed in this brief overview of classic cases that several themes consistently emerge the balancing process involved between sometimes competing policy objectives, the focus on acceptable outcomes versus ideal outcomes, and the need for integrated decision-making in the interests of net community benefit and sustainable development for the benefit of present and future generations. 35 Classic cases can guide decision-making but they are no substitute for a careful consideration of the issues and individual merits arising from each application that the Tribunal must decide. Nevertheless, I trust that you will find them useful, just as Tribunal members do, in undertaking or appreciating this balancing process. VPELA YPG Master Class Classic VCAT Cases Page 11 of 11