SHADDA ABERCROMBIE V SALTER ARCHITECTS & MINISTER for PLANNING

Summary of Judgment

SHADDA ABERCROMBIE v SALTER ARCHITECTS & MINISTER FOR PLANNING

[2017] VSCA 74

28 March 2018

Salter Architects (‘Salter’) proposes to develop land at Mount Buller for the purpose of a multilevel residential building. Shadda Abercrombie (‘Abercrombie’) objected to the proposed permit in part on the basis that the proposed development was too high. The Victorian Civil and Administrative Tribunal (‘the Tribunal’) held that a development permit should be granted to Salter subject to conditions. Abercrombie appealed to the Supreme Court. The appeal was dismissed. Abercrombie sought leave to appeal from that decision to the Court of Appeal. Today the Court of Appeal (Chief Justice Ferguson, Justice Tate, and Justice Osborn) dismissed the appeal.

The relevantDesign and Development Overlay (‘DDO’) that applies to the development land sets out the height requirements which the development land ‘should’ meet. Under the DDO, a permit may be granted to construct a building that is not in accordance with the requirements in a schedule, unless the schedule ‘specifies otherwise’.

In the Court of Appeal, Abercrombie raised two questions of law:

(1)Did the Court make a mistakein construing the DDO control as not imposing a mandatory height limit?

(2)Did the Court make a mistakein concluding that the imposition by the Tribunal of a condition directed to the height of the building was not unreasonable?

The Court of Appeal dismissed the appeal.

In a joint judgment, Chief Justice Ferguson and Osborn JA considered the use of the word ‘should’ in the schedule rendered the requirements set out discretionary. They found that the trial judge was correct to conclude that an underlying discretion to vary the requirements of the schedule does not render meaningless the words which expressly state that a permit may be granted to vary minimum setbacks and site coverage. The discretionary power included in the schedule to vary the height of a roof structure or chimney cannot be read as ‘specifying otherwise’, and does not provide for roof structures and chimneys to be the only permissible extension above the height level of a building. They were also not persuaded that the stepping of the roof in accordance with the condition imposed by the Tribunal will result in any material adverse effect upon views from the applicant’s apartment.

Justice Tate accepted that the general discretionary powerto grant a permit is constrained but only with respect to the limits within which a permit can be granted for a chimney or roof structure to exceed the maximum building height. There is neither an express nor a necessary implication in the maximum building height requirement that denies the power to grant a permit to vary or exceed the height limit of a building or mandates that the power can only be exercised in a particular way except with respect to the construction of chimneys and roof structures.