No.
6704 of
2004
- The plaintiff in this matter proposes to refurbish a tennis
court, and install and operate tennis court lighting at her home in
Toorak.
- By a decision of 31 May 2004 the Victorian Civil and
Administrative Tribunal ("the Tribunal") directed that a permit be granted
for
such refurbishment including the proposed lighting system subject to a number
of conditions.
- One of these conditions was that the court must not be used
between 9.30 p.m. and 7.30 a.m. The plaintiff contends that the
Tribunal
should have permitted use between 10.30 p.m. and 7.30 a.m.
in accordance with the standard stipulated by way of performance requirement
E6.3.2 of the Code of Practice - Private Tennis Court Development Revision 1
March 1999 ("the Code"). It is said the course followed
by the Tribunal is
vitiated by an error of law and that its decision is appellable pursuant to
s148 of the Victorian Civil and Administrative Tribunal Act
1998.
- In accordance with accepted practice the Tribunal has indicated
that it will abide by this Court's decision. Somewhat more unusually
Stonnington City Council has elected not to appear before the Court, presumably
because it does not support the proposed condition.
This situation has
deprived the Court of the assistance which it would usually expect to receive
from a responsible authority in
an appeal of this kind.
- Although it will be necessary to say more about the terms of
the relevant controls, it was accepted by Mr Wren of counsel for the
plaintiff
that the plaintiff required a permit for the proposed tennis court lighting
pursuant to two separate planning scheme controls.
- First, the plaintiff's land is governed by a Heritage Overlay
pursuant to cl.43.01 of the Stonnington Planning Scheme and a permit
was
required to construct a building and to construct or carry out works.[1]
- In the present case the Tribunal's decision records that there
was no dispute between the parties that "as the site is situated
at the rear of
the land there are no heritage concerns regarding the proposal."
- Secondly, a permit was required by cl.52.21 which governs the
construction, use and illumination of private tennis courts and has
the
following purpose:
"To ensure that tennis courts used in association with a dwelling
are sited and constructed to minimise the effects of the development
on nearby
properties.
To ensure that the use of tennis courts in association with a dwelling does not
cause unreasonable disturbance
to adjoining residents or adversely affect the
residential amenity of adjoining areas."
- The scope of the control is expressed as
follows:
"This clause applies to any private tennis court which is used in
association with a dwelling."
- The permit requirement under the clause is as
follows:
"A permit is not required to construct, use or illuminate a private
tennis court if the performance requirements specified in the
Code of Practice
- Private Tennis Court Development March 1999 are met.
A permit is required to construct, use or illuminate a
private tennis court on
land within:
* An Urban Floodway Zone, an Environmental Significance Overlay, a Heritage
Overlay, a Land
Subject To Inundation Overlay, a Rural Floodway Overlay, a
Significant Landscape Overlay.
* A Vegetation Protection Overlay if any
vegetation specified in a schedule to
the overlay is to be removed, destroyed or lopped."
- The second relevant permit requirement thus arises pursuant to
cl. 52.21 because the land is within a Heritage Overlay.
- The control is not without its peculiarities. First, the
permit requirement does not by its terms impose a general requirement
for a
permit to construct, use or illuminate a private tennis court if the
performance requirements specified in the code are not met. When the
controls constituting the predecessor to cl.52.21 were first implemented in
conjunction with the promulgation of the
Code by Amendment S48 to the then
State section of the Planning Scheme, it was an express purpose of the control
to "provide consistent requirements of
tennis courts in association with a
dwelling". In turn the control expressly provided:
"7-7.4 Permit Required
A permit is required to construct, use or illuminate a private tennis court if
any of the performance requirements
specified in the 'Code of Practice -
Private Tennis Court Development August 1996' are not met."[2]
The equivalent provision in the current scheme requires a
permit only with respect to land within a specified zone and specified
overlays.
- Surprisingly perhaps the circumstances in which the majority
of private tennis courts might be expected to be constructed (including
those
used in conjunction with a detached dwelling and governed by a standard
Residential 1 zone) will thus not fall within the permit
requirement triggered
by nominated controls. They will, however, have the benefit of a conditional
exemption in the circumstances
I will shortly specify.
- The second peculiarity inherent in cl. 52.21 is that it
does not make clear whether the exemption provided by the first paragraph
of
the permit requirement is intended to apply to the specific permit requirement
imposed in the second paragraph by reference to
a named zone and overlays.
Before turning directly to this question it is necessary to address the general
operation of the exemption.
- Clause 31 of the Planning Scheme introduces a set of
provisions pursuant to which land may be included in zones, within which uses
may be as of right (not requiring a permit), or permissible (requiring a
permit) or prohibited. The zone controls further incorporate
development
controls in specific circumstances. Thus cl.32.01-4 relevantly requires a
permit for the construction of two or more
dwellings on a lot in a Residential
1 zone. In this and other circumstances a permit might be required under the
zone controls for
the construction of a private tennis court used in
association with a dwelling but for the exemption contained in cl.52.21. The
exemption would remove the need for a permit pursuant to the zone controls if
the performance requirements are met. The specific
provision relating to
private tennis courts overrides the general zone requirements.
- Clause 41 of the Planning Scheme introduces a set of overlay
controls by stating:
"If an overlay is shown on the planning scheme map, the provisions
of the overlay apply in addition to the provisions of the zone
and any other
provision of this scheme."
- Having regard to these words, the specific provisions of the
exemption contained in cl.52.21 do not override the overlay controls.
Moreover
the overlay controls include the Heritage Overlay which expressly contemplates
an application for a permit for construction
of a tennis court may be made
under it, in that it provides for an exemption from notice and review by
cl.43.01-4.
- Clause 51 introduces a set of particular provisions (which
include cl.52.21 itself) as follows:
"The requirements of these particular provisions apply to the
specified categories of use and development and other matters in addition
to
any provisions which apply due to any other provision of this
scheme."
- Although these words are not entirely free from difficulty
when applied to an exemption, the better view is that the intention of
the
scheme is that all the particular provisions are to be applied cumulatively
that is "in addition to any provisions which apply
due to any other provision
of this scheme". It follows that the exemption does not preclude requirements
pursuant to other particular
provisions. These include cl.54 which
states:
"These provisions apply to an application to construct a building
or construct or carry out works associated with one dwelling on
a lot under the
provisions of:
* A Residential 1 Zone, a Residential 2 Zone, Mixed Use Zone or Township Zone.
* A Heritage Overlay
or Neighbourhood Character Overlay if the land is in a
Residential 1 Zone, Residential 2 Zone, Mixed Use Zone or Township
Zone."
- The consequences of the exemption with respect to provisions
of the scheme other than cl.52.21 itself accord generally with that
of the
precursor controls implemented by Amendment S48. Under these cl. 7-7.2
provided:
"... The provisions of this Clause prevail over any other
requirements in regional or local sections of the planning scheme. This
does
not apply where the land is identified in the planning scheme as:
* an area of heritage significance such as an urban conservation
area and a
permit is required to demolish or construct buildings or works;
* an area which is subject to flooding such as a Stream
and Floodway zone or
Floodway Management zone and a permit is required to construct buildings or
works;
* an area of environmental
significance (designated by overlay controls) and a
permit is required to remove vegetation;
* where site specific development controls
apply."
- This leads to the question of the relationship of the
exemption to the permit requirement imposed by cl.52.21 itself. Is the
requirement
for a permit to construct, use or illuminate a private tennis court
on land within the zone and overlays specified subject to the
exemption, so
that it only arises in the circumstances where there is non-compliance with the
performance requirements of the Code?
- Although the two paragraphs set out under the heading "permit
requirement" are capable of being so read, they are also capable of
being read
as standing separately with no intent that the permit requirement be subject to
the exemption. In my view the latter
is the preferable
construction.
* The stated purpose of the control discloses no intent to
"provide consistent requirements for tennis courts in association with
a
dwelling" as did the precursor control implemented by Amendment
S48.
* The effect of the exemption in the Urban Floodway Zone would be
to totally exempt from permit requirement tennis court construction
and use
which complied with the performance requirements of the Code despite the
potential of such construction and use to impact
directly upon the achievement
of the purposes of the zone by reason of issues not addressed in the
Code.
* The application of the exemption would result in a situation
where the environmental, heritage and safety sensitivities of land
affected by
the specified overlay controls and arising out of the use and illumination of a
private tennis court might not be addressed
because firstly, the relevant
overlay controls primarily regulate development alone and secondly, the
performance requirements of
the Code are formulated by reference to a standard
or average range of conditions only.
- In my view the maker of the Planning Scheme cannot be taken to
have intended these latter consequences.
- The relevant principle was stated by Gobbo J in Majik
Markets Pty Ltd v The City of Box Hill[3]
citing Sydney City Council v Ke-Su Investments Pty Ltd & Ors No. 2[4] per McLellan CJ and quoting with approval
Pearce's Statutory Interpretation in Australia:
"There are numerous cases that show that the courts approach the
interpretation of legislation by taking into account the consequences
of giving
a particular meaning to an Act. If injustice, inconvenience or absurdity will
result from adopting one interpretation
rather than another, the courts, as
could reasonably be expected, will follow the interpretation which avoids that
of debility."
- For the above reasons the requirement imposed pursuant to the
second paragraph of the permit requirement set out in cl.52.21 by
reference to
the Urban Floodway Zone and specified overlays (including the Heritage Overlay)
is imposed irrespective of whether the
performance requirements specified in
the Code are met.
- I turn now to the decision of the Tribunal. Because, as I
have said, it was common ground that the application did not give rise
to
heritage concerns, the dispute before the Tribunal turned on the proper
application of cl.52.21. There was no issue as to the
appropriateness of the
grant of a permit under the Heritage Overlay itself.
- The ultimate conclusion of the Tribunal was as
follows:
"I have therefore concluded that illumination of the tennis court
at 10 Landale Road should be permitted but that due to the amenity
concerns
raised by Council and the residents/objectors and the number of dwellings
immediately adjacent to the tennis court, it would
be unreasonable to allow the
hours to extend until 10.30 p.m. at night. A condition of the permit will
therefore provide that the
court lights must not be used between 9.30 p.m. and
7.30 a.m."
- The plaintiff contends that if no relevant heritage
consideration arises and the proposal complies with the performance
requirements
stated in the Code with respect to hours of use, it was not open
to the Tribunal to impose a further and more restrictive condition
as to hours.
In argument Mr Wren submitted that the Tribunal should have asked, why is the
discretion being exercised? If the reason
was because the land is subject to a
Heritage Overlay then the Tribunal should next have asked what impact would the
proposal have
on the purposes of the Heritage Overlay? The true issue for the
Tribunal was thus said to be assessment of what impact the proposal
would have
on the significance of the heritage place and not on residential amenity.
- In support of this argument, Mr Wren relied upon the well
accepted principle that a discretion cannot be exercised for a purpose
other
than that for which it is granted. There is no doubt as to the underlying
validity of the principle.
- There is, however, a threshold issue concerning the
characterisation of the relevant decision which requires clarification.
Section 61(1) of the Planning and Environment Act 1987
provides:
"(1) The responsible authority may decide -
(a) to grant a permit; or
(b) to grant a permit subject to conditions; or
(c) to refuse
to grant a permit on any ground it thinks fit."
- In turn s.80 relevantly provides:
"80. Appeals against conditions on permits
(1) An applicant for a permit may apply to the Tribunal for review of any
condition in
a permit which the responsible authority has issued or decided to
grant the person ..."
- Section 85(1)(e) provides:
"85. Determination of an appeal
(1) After hearing an application for review, the Tribunal may -
...
(e) direct that a permit must
or must not contain any specified condition; ...
"
- The plaintiff's case was put by reference to the line of
authority which constrains the purposes by reference to which a permit
may be
refused pursuant to specific provisions of the Planning Scheme despite the
broad terms in which general considerations affecting
such a decision are
stated both in the Act and the Planning Scheme. This principle which has
become known as the National Trust principle[5] was recently affirmed with respect to the current format of
planning scheme by Morris J in Victorian National Parks Association Inc
& Anor v Southern Grampians Shire Council & Ors[6]. Morris J concluded:
"The function of sections 60 and 84B of the Planning and
Environment Act is precisely the same as clause 65 of each planning scheme
in Victoria and, more significantly, is precisely the same as clause 5A
of the
Melbourne Metropolitan Planning Scheme at the time of the National Trust
case. In my opinion, just as it was proper to have regard to the matters
prescribed by clause 5A in the context of a control over
the height of
buildings, sections 60 and 84B must be applied in a particular application for
permit, or a particular application for review, in the context of the
discretion
then being exercised. But the scope of relevant considerations in
the exercise of a discretion under a planning scheme provision
is to be
ascertained by reference to the purpose for which the discretion has been
conferred, not by reference to the broad words
of clause 65 or sections 60 or
84B."[7]
- The current appeal is, however, concerned with the question of
whether a particular condition could properly be placed on the relevant
permit.
The relevant power of the responsible authority in this regard is stated in
s.62(2) of the Act:
"The responsible authority may include any other condition that it
thinks fit ..."
- It can be seen that this power is stated in broad terms and it
is the ambit of this power which governs the validity of the condition
in
issue.
- The test of the validity of a planning permit condition is
that which was propounded by Harris J in 271 William Street Pty Ltd v
City of Melbourne[8], namely: is the
condition reasonably capable of being related to the implementation of planning
policy when the scope of such policy
is ascertained from the relevant planning
legislation and the relevant planning scheme? As Ashley J held in
Crichton v Moorabbin[9] this test remains
the test under the Planning and Environment Act 1987.
- The principle relied on by the plaintiff constrains the
purposes by reference to which a permit may be refused pursuant to a particular
control. The principle governing the imposition of conditions potentially
amplifies the purpose relevant to the consequential power
to impose conditions
which arises upon a decision to grant a permit. It is the permissible purpose
of the exercise of this consequential
power which is here in
issue.
- In the 271 William Street case Harris J referred
to and applied the test stated by the High Court in Allen Commercial
Construction Pty Ltd v The Council of the Municipality of North Sydney[10] in the judgment of Walsh J at p.499 (with
whom Barwick CJ, Menzies and Windeyer JJ agreed):
"In accordance with a well recognised rule, section 40(1) (ie of
the North Sydney Planning Scheme Ordinance) ought to be understood
... not as
giving an unlimited discretion as to the conditions which may be imposed, but
as conferring a power to impose conditions
which are reasonably capable of
being regarded as related to the purpose for which the function of the
authority is being exercised
as ascertained from a consideration of the Scheme
and of the Act under which it is made. This purpose may be conveniently
described,
in accordance with the expression used by Lord Jenkins in Fawcett
Properties Ltd v Buckingham County Council (1961) AC 636 at p684, as being
'the implementation of planning policy', provided that it is borne in mind that
it is from the Act and from any
relevant provisions of the Ordinance, and not
from some preconceived general notion of what constitutes planning, that the
scope
of planning policy is to be ascertained."
- In 271 William Street itself the applicant sought to
challenge a condition requiring the provision of a splay corner intended by the
responsible authority
to accommodate pedestrian traffic on the corner of
William and Little Lonsdale Streets, Melbourne, in accordance with a Council
policy
seeking to facilitate pedestrian movement. The condition was held to be
a valid implementation of planning policy although the requirement
for the
splay was not generated by the use and development forming the subject of the
permit. The development simply provided an
occasion for the incidental
implementation of the policy.
- Harris J analysed the Town and Country Planning
Act 1961 and concluded at p.163:
"Thus, one subject matter which may be provided for in a planning
scheme is the restriction on and the regulation of the development
and the use
of land in an area in which land or buildings are to be used for specified
purposes. In my opinion, the language used
in CL 4 and the nature of its
subject matter lead to the conclusion that the restrictions and regulations
which the planning scheme
may contain, while they must be applied to particular
properties within the specified areas, do not necessarily have to be related
solely to the development or use of such particular properties. In my opinion,
CL 4 enables restrictions and regulations to be included
in a planning scheme
which are designed to implement some particular planning objective for the
whole of the area."
- His Honour next observed that the City Council's then proposed
planning scheme showed that it did intend to make specific provision
for the
policy within that scheme.
- The decision thus endorsed the imposition of an urban design
outcome affecting the area by way of a condition imposed upon particular
development in pursuance of a policy concerning the area.
- Likewise, in appropriate circumstances, a condition imposed on
a particular use may be said to implement planning policy in the
sense referred
to in 271 William Street. Thus in Crichton a condition directed
to ensuring the phasing out of a non-conforming use was held to be
valid.
- The question of whether a condition is reasonably capable of
being related to the implementation of planning policy in the relevant
sense
will remain a question of fact in each case.
- In the present case the planning policy which cl.52.21 itself
implements clearly extends to the considerations upon which the relevant
condition is founded.
- This is in part because each of the controls nominated in the
permit requirement (including the Heritage Overlay) operates as a
trigger
requiring a permit pursuant to 52.21. The effect of this trigger is to impose
a permit requirement with respect to use and
illumination of a private tennis
court whereas the overlay controls themselves, including the Heritage Overlay,
relevantly regulate
construction matters only. The purpose of the relevant
permit control is, however, not limited by reference to heritage considerations
or the other nominated controls. The permit control is contained within a set
of provisions having a broader purpose. This broader
purpose is reflected in
the statement of purpose within cl.52.21 relating to the effects of the
development on nearby properties,
and the effect of the use on adjoining
residents and the residential amenity of adjoining areas.
- Furthermore, the decision guidelines under cl.52.21 state as
follows:
"Before deciding on an application under this clause, in addition
to the decision guidelines in Clause 65, the responsible authority
must
consider the relevant objectives and considerations specified in the Code of
Practice - Private Tennis Court Development March
1999."
- The relevant objectives and considerations relating to hours
of use are set out under element 6.
"E6.1 Considerations
The construction and use of a tennis court must take into account the need to
respect the privacy of adjoining residents, particularly
in terms of
overlooking and noise.
Matters to be considered include:
* the height of the tennis court surface;
* the provision of
screening;
* the hours of play; and
* the use of mechanical equipment.
E 6.2 Objectives
To ensure that the tennis court and its use do not detract significantly from
the amenity of the surrounding area and do not cause
unreasonable detriment to
privacy.
To limit views into neighbouring secluded private open spaces and habitable
rooms."
- It is to be observed that it is to these considerations and
objectives that the decision maker is directed by the decision guidelines
in
cl.52.21 and not to the performance requirements.
- It is apparent that the Tribunal imposed the condition now
under challenge for purposes embraced by the statement of purposes within
52.21
and precisely for the purposes elaborated in the relevant considerations and
objectives of the Code namely to ensure that use
of the tennis court does not
detract significantly from the amenity of the surrounding area and does not
cause an unreasonable detriment
to privacy. It follows that the condition was
imposed for a purpose contemplated by cl.52.21 and directed towards the
implementation
of planning policy as ascertainable from the very terms of 52.21
itself.
- In the alternative to its primary submission it was ultimately
submitted on behalf of the plaintiff that it was not open to the
Tribunal to
form the view which it did of the facts of the case and in particular to
conclude that such a condition was appropriate
to achieve the purpose of the
relevant control.
- There is no basis for such a conclusion. It is apparent from
its decision that the Tribunal carefully addressed and considered
the
particular context of the tennis court in issue which has some specific
sensitivities because of adjoining multi unit residential
development. The
Code does not require that the performance requirements be deemed to achieve
the objectives of the Code in all
circumstances. Rather, the performance
requirements take effect pursuant to the planning scheme to relieve an
applicant in some
circumstances from the necessity of obtaining a permit. In
the circumstances of the specific controls which are specified as triggering
a
permit requirement however they will not have this effect.
Conclusion
- It follows that the condition in issue cannot be shown to be
invalid by reference to the accepted test for the validity of a planning
condition. More particularly the condition directly implements the policy
reflected in the stated purpose of the provisions containing
the permit control
and the objectives identified in the Code referred to in the decision
guidelines under the permit control. Likewise,
it cannot be shown that the
Tribunal's conclusion as to the appropriateness of the condition was not open
to it on the facts of the
case. Accordingly the appeal must be dismissed.
---
[1] Section 3 of the
Planning and Environment Act 1987 defines "building" to include "(a) a
structure and part of a building or structure; and (b) fences, walls,
out-buildings, service
installations and other appurtenances of a building ...
"
[2] The relevant provisions are conveniently set
out and discussed in the decision of Tribunal member A.P. Liston in Kevin
McNamara Pty Ltd v Shire of Mornington Peninsular and ors (1997) 18 AATR
175 at 178-9.
[3] (1988) 1 AATR 91 at 94
[4] (1983) 51 LGRA 186 at 205
[5] National Trust of Australia (Victoria) v
Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VicRp 60; [1976]
VR 592
[6] [2004] 16 VPR 98
[7] [42] p.108
[8] [1975] VicRp 15; [1975] VR 156 at 161-163
[9] [1992] VicRp 69; (1992) 8 AATR 172
[10] [1970] HCA 42; (1971) 123 CLR 490
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