On 10 March 2015, the Victorian Court of Appeal handed down its long awaited judgment in Boroondara City Council v 1045 Burke Road Pty Ltd & Ors[1]

Aspects of the judgment are likely to significantly affect the manner in which ‘single trigger’ permit applications are considered and determined. There is, indeed, a serious question as to whether and, if so, how the principle in the National Trust case is to apply to such applications under the current legislation and Victoria Planning Provisions (VPP) planning schemes.

The Facts

The respondent land owner applied to the Council for a planning permit to demolish an existing dwelling and construct a four-storey building comprising 33 dwellings. Planning permission was required under the Heritage Overlay to demolish the dwelling and to construct the development.  Permissions were also required to construct the development under the residential zoning, under clause 52.34 to reduce the bicycle spaces requirement and under clause 52.29 to alter access to a Road Zone.

The application ultimately finished up at the Tribunal as a review of Council’s decision to refuse the permit. In setting aside Council’s decision and directing that a planning permit be issued, the Tribunal included the following reasons:

Ultimately, we consider that the building has a level of significance such that demolition is not justified in terms of purely heritage considerations. Nevertheless, demolition might be justified when the loss of a representative example of a type of building is balanced against other objectives sought by the planning scheme. The key issue we must determine is how that balance is struck in this instance. We discuss this issue under a later heading. [2]

It was this aspect of the reasons which was challenged by Council, first in the Supreme Court and then the Court of Appeal.

The key questions

The Court of Appeal was presented with two key questions for determination. They are reproduced in paragraph 115 of His Honour Mr Justice Garde’s judgment as:

The first question is in substance:

Where:

(a) a person proposes to demolish a building on land covered by a Heritage Overlay in the [Scheme];

(b) the person needs a planning permit to demolish those buildings only by reason of the Heritage Overlay; and

(c) other aspects of the proposal (such as the construction of new buildings) also require planning permission –

should the discretion to allow (or refuse) the demolition of the heritage building be exercised first and only by reference to considerations beyond those relating to heritage conservation policy?

The second question is:

Where there are multiple triggers for a planning permit for a proposal, may a permit be granted for that proposal only if there is a favourable decision or outcome (being the grant of a permit either with or without conditions) in respect of each permit trigger?

Council argued that the answer to each question was “yes”. In so doing, the Council contended that where a planning permit was required only by reason of a heritage overlay (i.e. the demolition of the existing dwelling), the decision-maker should not have regard to considerations beyond heritage conservation policy. In so contending, the Council relied on the principle espoused in National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd (National Trust principle).

Garde JA summarised the Council’s argument with respect to the National Trust principle as follows:

Senior Counsel for Boroondara relied on the principle that a decision maker may only exercise a discretion for the purpose for which it was conferred. This he described in the planning context as the ‘National Trust principle’. He contended that where there was a requirement for a permit under a planning control imposed for a specific purpose, a decision-maker cannot exercise the discretion to grant or refuse to grant a permit to regulate an aspect of the proposed development that is unrelated to the specific purpose. He contended that in exercising that discretion, the decision-maker may only consider matters that directly relate to the purpose of the control or that the scheme requires to be taken into account. Other matters constituted irrelevant considerations. He contended that when considering the isolated question whether the grant a permit to demolish a heritage building, the decision-maker was confined to considering heritage-related matters, and must not have regard to matters such as urban consolidation, housing diversity, sustainable development and urban design. He did not content that heritage considerations had paramountcy under the Act or the Scheme over other considerations.

The judgment

All three Justices (Warren CJ, Santamaria JA and Garde JA) answered “yes” to the second question.  They each agreed that where an application for multiple planning permissions is made, each one of the permissions must be regarded as achieving the required level of acceptability in order for a permit to be granted. So that if, for example, the decision-maker was to determine that the demolition of the dwelling under the Heritage Overlay was not acceptable (in planning terms) no permit should be granted even if the decision-maker was satisfied that the other permissions (construction, access to road zone, waiver of bicycle spaces etc.) achieved the required level of acceptability.

Nonetheless, in dismissing the appeal, all three Justices ruled that the answer to the first question was “no” – thereby supporting the judgment of the Supreme Court and the decision of the Tribunal on the so-called issue of ‘integrated decision making’.

The Justices approached the first question differently but each effectively determined that the Tribunal was correct at law in applying an integrated decision-making approach to the demolition of the dwelling.

As Chief Justice Warren expressed  it:

Put another way, the overall proposal is taken into account in the consideration of each permit requirement triggered by the proposal, and also as a final check before the project permit is granted. The individual permit requirements that are triggered are not to be considered in isolation or sequentially; instead each must be considered with regard for the other triggered permit requirements and the overall proposal. [3]

And specifically with respect to the Tribunal’s determination:

In this case, such a difficulty did not arise.  Although the Tribunal would have refused to grant a demolition permit sought in isolation on the basis of heritage considerations, in the context of the overall development proposal it considers that demolition was justified. It follows that the Tribunal was satisfied that a demolition permit would be granted in that context. Since it was also so satisfied in respect of the other triggered permit requirements, it was possible for the Tribunal also to be satisfied that it should grant the overall permit that the respondents sought. Every permit requirement ‘box’ was ‘ticked’. But had there been a ‘cross’ on demolition, it would not have been open to the Tribunal to grant a permit for the overall development, given that it would entail the demolition of Arden. [4]

It is however the approach adopted by Garde JA which has the most significant implication – particularly with respect to whether and, if so, how the National Trust Principle continues to apply under the current legislation and the VPP planning schemes.

Justice Garde’s judgment

His Honour commenced his judgment by comprehensively describing the statutory and planning scheme framework under which planning decisions are made. He noted in particular that the decision guidelines in the Heritage Overlay includes a requirement to consider the State and local planning policy framework and to also consider clause 65 of the planning scheme which, in turn, requires a consideration of s60 of the Planning and Environment Act (Act).

His Honour then referred the Tribunal’s reliance on the decision of Deputy President Gibson in University of Melbourne v Minister for Planning [5] as the “definitive statement of the Tribunal’s current practice” with respect to the factors a decision-maker is bound to consider:

We endorse the proposition articulated in Harding that even where what is proposed is the demolition of a building which is the sole basis for a site specific Heritage Overlay, the decision must have regard to the full ambit of planning controls and planning policy applying to the site.

His Honour later turned to the National Trust principle, which he described in the following terms:

The National Trust Case stands for the principle that a discretion cannot be exercised for a purpose other than that for which it is granted. This principle continues to have underlying validity. However, identification of the purposes for which the discretion is granted is undertaken by reference to the Act and the Scheme and not by reference to preconception or speculation as to what those purposes must be.

In indicating that the principle had underlying validity, His Honour referred to the Tribunal and Supreme Court cases of Stogdale[6]White Ash[7] and Shalit[8], all of which were decided post the VPP planning schemes.

His Honour then said the following:

In one respect, I disagree with the reasons of the Tribunal where it stated that:

It is clear that when the Heritage Overlay is the only permit trigger, then the Tribunal’s discretion is confined to heritage considerations.

The Tribunal understood that if there was a single decision to be made under the Heritage Overlay, the Tribunal was confined to heritage considerations. It believed that it was only when a proposal involved multiple permit applications, that a wider range of planning considerations could be taken into account when deciding whether a permit should issue under the Heritage Overlay.

The correct statement of the position is that in deciding whether a permit should be issued under the Heritage Overlay control, the decision-maker is required to take into account all of the considerations directed by the Act and the Scheme to be taken into account for an application under that control. These are not confined to heritage considerations as is apparent from ss4, 60 and 84B of the Act, and cls 15, 20, 21, 22, 43 and 65 of the Scheme. 

There is no difference between the relevant considerations which apply under the Act and the Scheme when a decision-maker is considering an application for a permit under the Heritage Overlay alone, or when the application for a permit under the Heritage Overlay is sought as one of a number of permit applications that need to be made in respect of a particular proposal.  In the latter situation, there may be multiple planning controls contained in the scheme each of which requires a permit to be obtained. The considerations relevant to each planning control will vary as directed by the Act and the Scheme. However, the considerations relevant to making a decision under the Heritage Overlay control will be the same regardless of whether that control is considered alone, or as one of multiple planning controls.

And further:

The decision guidelines for the Heritage Overlay control found in cl 43.01-4 incorporate the decision guidelines in cl 65 of the Scheme. As I have said, the decision guidelines in cl65 include considerations such as:

  • The matters set out in s60 of the Act.
  • The SPPF and the LPPF, including the Municipal Strategic Statement and local planning policies.
  • The purpose of the zone, overlay and other provision.
  • Any matter required to be considered in the zone, overlay or other provision.
  • The orderly planning of the area.
  • The effect on the amenity of the area.
  • The proximity of the land to any public land.

In reaching its decision, the Tribunal did take into account considerations extending beyond strictly heritage considerations. Those considerations included the architecture of the proposed building, neighbourhood character policy, development on main roads, the physical and strategic context, and the interfaces of the site.

All of these considerations were relevant considerations in an application under the Heritage Overlay having regard to the provisions of the Act and the Scheme. So too are considerations such as urban consolidation, housing diversity, sustainable development and urban design. The weight to be given to these considerations is fundamentally for the decision-maker and not for the Court to determine.

In addition to considerations relevant under the Heritage Overlay control and under cl65, there is also the considerations made relevant by the Act, including the objectives of planning, and of the planning framework under s4(1) and (2) and the considerations listed in ss60 and 84B.

The implication of Justice Garde’s judgment

It is difficult to reconcile the above passages with a continuation of the National Trust principle, especially given the emphatic manner in which His Honour denounced the Tribunal’s approach to the Heritage Overlay considerations.

It brings into question the approach the Tribunal and the courts have to date taken with respect to ‘single-trigger’ permit applications. This includes the strongly expressed views of the then President of the Tribunal in Victorian National Parks Association Inc v Iluka Resources Ltd [9] where the then President said:

The National Trust principle has a valuable role to play in the administration of planning in Victoria.  Indeed, current planning schemes, which are based on the Victorian Planning Provisions, are predicated upon the application of the National Trust principle. These schemes contain many provisions which require a permit to be obtained in specific circumstances, which are designed to regulate use or development in those specific circumstances. For example, there are specific controls in relation to the construction of buildings in wildfire areas, in areas prone to erosion, in areas susceptible to flooding and in areas susceptible to land salinity. Similarly there are provisions in relation to the height of buildings, access on to main roads and the removal of native vegetation. Sometimes these specific controls are part of an overlay provision; sometimes they are the result of specific clauses of the scheme.  If, upon an application for a permit under one of the specific provisions, the decision maker was required to consider the full panoply of planning considerations set out in section 60 and 84B of the Planning and Environment Act and in clause 65 of each planning scheme, planning decision making would grind to a standstill.

His Honour appears to address the apparent difficulties this may create for decision-makers by adding that the weight to be given to non-heritage considerations is a matter for the decision-maker.  Presumably, the decision-maker can (or is required) to discount the weight of such matters on a case-by-case basis.

Otherwise, the criteria for the weighting of considerations is not explained in the judgment.

The concern is how His Honour’s judgment will be applied with respect to other single-trigger permit applications.

By extension, and given the heritage consideration policies at clause 15 of the VPP planning schemes, are decision-makers now required to consider heritage conservation policies for developments not governed by a Heritage Overlay? Presumably, yes.

Virtually every zone and overlay control requires a decision-maker to consider the State and local planning policy framework, clause 65 of the VPP planning scheme and s60 of the Act. The social and economic impacts of a proposal must be considered.

Remembering that in Shalit v Jackson Clement Burrow Architecture Pty Ltd (a post Planning and Environment Act and VPP planning scheme decision) the Supreme Court concluded that a provision which required a permit to be obtained to construct works on land affected by a Land Subject to Inundation Overlay was only to be exercised having regard to flooding matters and did not extend to issues such as maintaining views.

It calls into question decisions of the Tribunal including the legal opinion expressed by Deputy President Gibson inHermann v Port Phillip CC & Ors, where the Deputy President said the following:

It is a well accepted tenet of planning law 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.  The principle that the discretion of a decision maker should only be exercised in accordance with the purpose for which that discretion has been conferred is known as the National Trust principle. 

In the context of the present case, the only need for a planning permit arises under the Heritage Overlay.  The operation of the National Trust principle would mean that only matters relevant to heritage arising under clause 43.01 of the planning scheme would be relevant when exercising a discretion whether to grant the permit or not.  Those aspects of the State and Local Planning Policy Frameworks and the decision guidelines in clause 65 called up by the decision guidelines set out in clause 43.01-4 are limited to heritage related matters and must be applied only for the purpose for which the control has been conferred under clause 43.01.  They would not extend to a consideration of matters that may arise under other provisions of the planning scheme where the purpose of the control may be to protect residential amenity or neighbourhood character or for other purposes. 

… I find that there is no opportunity to consider the proposal’s impact by way of overshadowing, privacy and visual bulk on the general amenity of adjoining properties beyond the ambit of heritage considerations.  The same applies to the general matters set out in clause 65.  They too are only relevant to the extent they relate to the purpose of the control. [10]

The above reasoning appears to fly in the face of the Deputy President’s approach in the University of Melbourne case and Garde JA’s approach. As recently as February 2014, the Tribunal was applying the Hermann decision to reject any consideration of non-heritage matters (see Gray v Yarra CC [2014] VCAT 326).

The impact of the Court of Appeal’s judgment is real and potentially profound. We can only wait and see how councils, planning advocates, the Tribunal and Planning Panels will respond.