Appellant v First Respondent

1 Each of the Mornington Peninsula Shire Council and TJBP Pty Ltd (the 'developer') appeals against the order of the Victorian Civil and Administrative Tribunal made on 20 December 2012[1] in respect of a permit for a 41 lot subdivision at 85 Elizabeth Avenue, Rosebud West. The Tribunal made an enforcement order pursuant to s 114 of the Planning and Environment Act 1987 (Vic) (the 'Planning Act') on the ground that the permit for the subdivision had expired by the time the permit was purportedly extended by the Council and made a declaration pursuant to s 124 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the 'VCAT Act') that the Council's certification of plans of subdivision on 9 March 2012 and 13 March 2012 was invalid.

(a) On 12 September 2003, at the direction of the Tribunal, the Council issued a permit for the subdivision of the subject land (the 'Permit').

(b) On 26 June 2006, Plan of Subdivision PS 433318C was certified by the Council (the '2006 Certification'). The same plan was re-certified on 27 September 2006.

(c) On 23 March 2007, the Tribunal amended the Permit to allow for a staged subdivision (the 'Permit Amendment').

(d) On 11 August 2011, the Council granted an extension of time for completion of the Permit (the 'Permit Extension').

(e) On 9 March 2012, a further plan of subdivision was certified for stage 1 of the subdivision and, on 13 March 2012, a plan of subdivision in respect of stage 2 of the subdivision was certified.

3 On 30 August 2012, Mr Cameron Brown sought an enforcement order, arguing, in substance, that there was no current planning permission for the subdivision when the Council granted the extension of time for the completion of the Permit and that the Permit Extension was void.

4 The events giving rise to the enforcement order application are helpfully represented in the following diagram prepared by the developer:

5 The Permit initially contained a condition (Condition 4), which provided that the Permit would expire if the Council had not certified the plan of subdivision within five years of the date of the issue of the Permit. The Permit Amendment replaced Condition 4 with a new condition (Condition 29), which provided:

Where the subdivision is to be developed in stages, the time specified for the commencement of the first stage is two years from the date of the amendment of this is (sic) permit. The time specified for the commencement of any subsequent stage is three years from the date of the amendment of this permit and the time specified for completion of each stage is two years from the date of its commencement. The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

6 The Tribunal identified the critical issue on the enforcement application to be whether Condition 29 of the Permit as amended 'was effective to govern the expiry of the approved (amended) subdivision'.[2] It held that Condition 29 governed the expiry of the Permit and that the Permit had already expired when the Permit Extension was granted, either because the subdivision was not commenced in time or because the subdivision was not completed in time.

7 In relation to the commencement of the subdivision, the Tribunal held that:

(a) The Permit Amendment substituted a new set of rights in place of the original rights and, as a result, the 2006 Certification could no longer be relied upon as representing the approved subdivision;[3] and

(b) The Permit Amendment had been acted upon and was relied upon by the developer as authorising the subdivision;[4]

(c) As a result, the developer was required to lodge a new plan for certification within two years of the Permit Amendment in order to commence the subdivision in accordance with Condition 29, or to apply for an extension of time by 23 June 2009.

8 In relation to the completion of the subdivision, the Tribunal held that:

(a) It is possible for a condition of a permit to provide a more limited time for the completion of a subdivision than is provided for by s 68(1) of the Planning Act or the provisions of the Subdivision Act 1988 (Vic) pertaining to certification;[5] and

(b) Specifically, s 68(1)(b) of the Planning Act provides that a permit will expire if 'the development or any stage is not completed within the time specified in the permit'[6];

(c) Condition 29 of the Permit required completion of the subdivision within two years of the date of the Permit Amendment, which did not occur.[7]

9 In each appeal, the grounds are the same. They are:

(1) The Tribunal erred in holding that as at 15 August 2011 (the date of the Permit Extension), the Permit had expired.

(2) The power of the Tribunal to make declarations under s 124 of the VCAT Act does not extend to the making of declarations concerning the validity of the certification of plans of subdivision undertaken pursuant to the Subdivision Act in the context of a proceeding commenced pursuant to s 114 of the Planning Act.

10 The relevant statutory framework comprises parts of both the Planning Act and the Subdivision Act. It is well established that the Planning Act and the Subdivision Act are 'cognate legislation' which 'must be read together'.[8] Each Act depends for its operation upon the other.[9]

11 Part 4 of the Planning Act concerns planning permits and s 68 governs their expiry. Section 68(1) provides:

(1) A permit for the development of land expires if -

(a) the development or any stage of it does not start within the time specified in the permit; or

(aa) the development requires the certification of a plan of subdivision or consolidation under the Subdivision Act and the plan is not certified within two years of the issue of the permit, unless the permit contains a different provision; or

(b) the development or any stage is not completed within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit or in the case of a subdivision or consolidation within five years of the certification of the plan of subdivision or consolidation under the Subdivision Act 1988.

12 Section 69 of the Planning Act allows a responsible authority to extend the time in which a permit operates. Section 69(1) provides that 'before the permit expires or within three months afterwards, the owner or occupier of the land to which it applies may ask the responsible authority for an extension of time'. Section 69(2) provides that the responsible authority may 'extend the time within which the use or development or any stage of it is to be started or the development or any stage of it is to be completed or within which a plan under the Subdivision Act is to be certified'.

13 Part 2 of the Subdivision Act is concerned with the certification of plans of subdivision.

14 Section 6 requires a municipal council to certify a plan of subdivision within the prescribed time provided that certain conditions are met. One such condition is that the plan of subdivision complies with the requirements of the Subdivision Act, the regulations, the applicable planning scheme and any planning permit issued in respect of that subdivision.[10]

15 Section 7 of the Subdivision Act provides:

The certification of a plan is valid for 5 years from the date of certification.

16 Section 13 provides that where a municipal council certifies a plan, 'the certification is conclusive evidence that the provisions of this Act relating to certification including any preliminary requirements, have been complied with, unless, before the plan is registered, an order is made under s 39(3) and served on the Registrar'.

17 Section 39(3) empowers the County Court to order that the registration of a certified plan be stopped in a number of circumstances, including where there has been a material misstatement or concealment of fact in the application for certification or a material breach of the Subdivision Act, the regulations, any other Act or regulations or the applicable planning scheme.

18 More generally, Part 6 of the Subdivision Act specifies a number of matters in respect of which applications may be made to the Tribunal, including an application in respect of a dispute arising under the Subdivision Act or the regulations promulgated under that Act,[11] an application in respect of a failure on the part of a municipal council or referral authority to certify or approve a relevant plan within the prescribed time periods[12] and an application for a declaration concerning any matter that could form the subject of an application to the Tribunal (other than an application under s 39).[13]

Ground 1: Had the Permit expired as at the date of the Permit Extension?

19 The Tribunal's decision to make the enforcement order was founded on the Permit having expired by the time that the Council purported to extend the Permit in August 2011. The expiry was held to have occurred either by reason of the subdivision not having been commenced in time or, alternatively, as a result of it not having been completed in time. The Tribunal relied on the operation of Condition 29 of the Permit (as amended) to so hold. Condition 29 purported to require commencement of stage 1 within two years from the Permit Amendment and completion of each stage within two years of its commencement.

20 The Permit was a permit for the development of land. Section 68(1) of the Planning Act specifies when a permit for the development of land expires.

21 Section 68(1)(aa) applies to subdivisional development and spells out when a permit for subdivision expires for want of commencement of the development by providing for expiry of the permit if the plan of subdivision is not certified within two years of the issue of the permit, unless the permit contains a different provision.

22 In the present case, Condition 4 of the Permit required the development to be commenced by certification of the plan of subdivision within five years. The plan of subdivision was certified within three years of the issue of the Permit, initially on 26 June 2006 and again on 27 September 2006. The development was therefore commenced by the 2006 Certification within the time specified in the Permit and in accordance with s 68(1)(aa).

23 The Tribunal correctly recognised that the 2006 Certification constituted commencement of the development under the Permit.[14] However, it erred in holding that the Permit Amendment had the effect that the 2006 Certification could no longer be relied upon as commencing the development.[15]

24 The statutory scheme does not contemplate that the certification of a plan of subdivision will be invalidated by the amendment of the permit for subdivision. This would be inconsistent with s 7 of the Subdivision Act, which gives the certification a five year life. Section 11 of the Subdivision Act contemplates that certified plans may need to be amended following certification and provides for the municipal council to re-certify an amended plan or certify a new plan upon application by the owner to amend. Section 11(8) provides that if a new plan is submitted for certification, the existing certified plan must be given to the council. Section 11(9) provides that the certification or re-certification does not extend the period specified in s 7. Notwithstanding the subsequent amendment of a certified plan, therefore, the five year period of validity under s 7 continues to run from the date of the initial certification.

25 Nothing in the Subdivision Act indicates that amending a permit for subdivision will invalidate an existing certification or otherwise deprive and existing certification of legal effect. To the contrary, s 11 provides for a variety of measures to be taken if plans of subdivision require amendment and specifies that the date of the initial certification continues to be the starting point for the period of validity in s 7.

26 Furthermore, the Planning Act makes provision for certified plans to be surrendered in certain circumstances, but not where there has been an amendment of the permit for subdivision. Division 3 of Part 4 of the Planning Act allows the Tribunal to amend or cancel a permit issued at its direction. Section 91(4) of the Planning Act provides that where a permit is cancelled by the Tribunal, any certified plan of subdivision must be surrendered to the responsible authority. There is no corresponding provision for the surrender of the original plan of subdivision upon amendment of the permit of subdivision.

27 In my view, having regard to the legislative scheme for the certification, amendment and surrender of plans of subdivision, the legislature did not intend the amendment of a permit for subdivision to invalidate an existing certification .

28 It follows that the 2006 Certification remained valid and effected the commencement of the development in accordance with the Permit, notwithstanding the Permit Amendment.

29 Section 68(1)(b) spells out when a permit for development will expire for want of completion of the development. It provides that a permit for the development of land expires if -

(b) the development or any stage is not completed within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit or in the case of a subdivision or consolidation within 5 years of the certification of the plan of subdivision or consolidation under the Subdivision Act 1988.

30 Section 68(1)(b) refers to the expiry of permits in three situations:

(a) where 'the development or any stage is not completed within the time specified in the permit';

(b) if no time is specified in the permit, where the development or any stage is not completed within two years after the issue of the permit;

(c) in the case of a subdivision or consolidation, where the development or any stage is not completed within five years of certification of the plan of subdivision (the 'third limb').

31 The question for the Tribunal was whether the third limb stood alone, so as to exclude the possibility that the Permit (or any conditions in the Permit) could cause the Permit to expire by reason of non-completion of the development. The Tribunal focussed on the words 'the development or any stage is not completed within the time specified in the permit' and held that the period for completion specified in the Permit would usurp the 'default provision' in s 68(1).

32 I have concluded that the Tribunal erred in so holding. In my view, the words in paragraph (b) 'the development or any stage is not completed within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit' have no application in the case of a permit for subdivision. The words 'or in the case of a subdivision or consolidation within five years of the certification of the plan of subdivision or consolidation under the Subdivision Act 1988' govern the expiry of a permit for want of completion of the development in the case of a subdivision. This is not a 'default provision', but the only provision for the expiry of a permit for subdivision.

33 The text of s 68(1) is careful to distinguish between development generally and subdivision specifically. Development in the form of subdivision is given separate attention both in s 68(1)(aa) and in the third limb. The third limb stands alone to govern the expiry of a permit for subdivision by providing that the permit will expire within five years of the certification of the plan of subdivision or consolidation under the Subdivision Act. Section 68(1)(b) therefore makes no provision for the permit to reduce or extend the period allowed for the completion of the subdivision.

34 This is consistent with ss 7 and 13 of the Subdivision Act, in that it establishes a uniform five year period for the completion of subdivisions. By ensuring such consistency, the third limb promotes the purposes of the Subdivision Act, which is intended to provide the framework for the subdivision and consolidation of land in Victoria.[16]

35 This construction is also supported by the history of s 68(1) of the Planning Act, which, when originally enacted, provided as follows:

(1) A permit for the development of land expires if -

(a) the development or any stage of it does not start within the time specified in the permit;

(b) the development or any stage of it is not completed within the time specified in the permit, or if no time is specified, within two years after the issue of the permit.

36 Paragraph (b) was subsequently amended to add the words 'or in the case of a subdivision or consolidation within 5 years of the certification of the plan of subdivision or consolidation under the Subdivision Act 1988' [17] In my view, this evinces the legislative intent to deal with the expiry of permits for subdivision separately and differently from permits for development generally.

37 The third limb of paragraph (b) makes no reference to the permit or the time for completion stipulated in the permit. The sole point of reference is the certification of the plan of subdivision.

38 Pursuant to s 68(1)(b), therefore, a permit for subdivision will expire five years after the certification of the plans of subdivision, providing of course that the certification itself has taken place within two years of the issue of the permit or such period as is specified in the permit. In this case, the 2006 Certification meant that the Permit remained alive until 26 June 2011.

39 The Tribunal found that the Permit Amendment resulted in a new set of controls governing the development of the subdivision in question. It noted that the Permit Amendment had been acted on and was relied upon as authorising the current subdivision and that the plans certified in 2006 no longer reflected the form of development.[18] That is as may be. However, whether the Permit had expired was to be determined by reference to s 68(1) of the Planning Act, which gave the conditions in the Permit relating to expiry limited work to do.

40 Whatever the amended Permit otherwise required or allowed, by reason of ss 68(1)(aa) and (b) of the Planning Act and as a consequence of the 2006 Certification, Condition 29 could not affect the currency of the Permit. It did not terminate the operation of the Permit on 23 June 2009; nor was it effective in terminating the operation of the Permit on 26 June 2008, even though the developer had not completed the subdivision within two years of the date upon which the plan of subdivision was certified.

41 The Tribunal misunderstood the effect of the 2006 Certification under the Subdivision Act and misconstrued s 68(1)(b) of the Planning Act. As a consequence, it erred when it held that the Permit had expired by the time that the extension application was made and the Permit Extension granted. It therefore erred when it made the enforcement order on the basis that the Permit had expired prior to the Permit Extension.

42 The intervener's submissions on this ground are not to the point. It is not a question of reviving an otherwise dead planning permit. The Permit was not 'dead' at any point in time. It was not dead despite the Permit Amendment and Condition 29, because the statutory framework for the expiry of permits provided otherwise.

44 The Tribunal's order must be set aside because it is based on a material error of law. This includes the declaration made by the Tribunal in respect of the certification of plans of subdivision on 9 March 2012 and 13 March 2012 following the Permit Extension.

45 It is therefore unnecessary to consider whether the Tribunal acted beyond power in making a declaration under s 124 of the VCAT Act in respect of the certification of plans of subdivision.

46 The developer's Notice of Appeal seeks an order setting aside the Tribunal's orders and an order under s 148(7) of the VCAT Act that the Tribunal proceeding (the enforcement application) be dismissed. In other words, the developer asks the Court to finally dispose of the enforcement application before the Tribunal rather than to remit the application to the Tribunal to be heard and determined anew according to law.

47 In Osland v Secretary to the Department of Justice,[19] the High Court of Australia stressed the limited nature of the power conferred by s 148(7)(b) of the VCAT Act, and warned against the Court using this power to make the essentially factual, evaluative and ministerial judgments that the legislature has given to the Tribunal to make.[20]

48 Having regard to the constraint identified in Osland, the developer submits that it is appropriate for the Court to exercise the power of the Tribunal where only one outcome could ensue, and that this is such a case. The developer contends that if the enforcement application were remitted to the Tribunal, the Tribunal would have no option but to dismiss it. This is because the basis for the enforcement order application was that the decision of the Council to extend the Permit in August 2011 was invalid (or at least did not have the affect of extending the Permit) and, as a consequence, the works carried out on the subject land were unlawful. That ground having fallen away, there is no other basis to grant the enforcement order, and so the proper course is for the Court to dismiss the application for enforcement order.

49 The Council does not actively oppose the position taken by the developer, but adopts a neutral position, and advises caution. It points out that in the course of the hearing before the Tribunal, evidence was led about environmental matters which may or may not have resulted in a variation of the grounds upon which the enforcement order was sought, and alluded to the possible receipt of evidence by the Tribunal about whether conditions in the Permit, assuming it was still alive, were being met. Because of the way that the Tribunal dealt with the matters before it, that is, by disposing of the application for an enforcement order on legal grounds, the Tribunal did not pursue these further matters.

50 I have reviewed the materials supporting the application for the enforcement order filed by Moreheads Lawyers on behalf of Mr Brown on 22 August 2012. Mr Brown sought orders that the developer immediately stop any use or development and not commence any use or development of the land. The contravention detailed in the enforcement application is said to have occurred under or by reason of s 69(1) of the Planning Act and Condition 29 of the Permit. The facts relied upon in the enforcement application are:

(b) in 2007, the Permit Amendment and the inclusion of Condition 29;

(c) in 2011, the application for the Permit Extension on the grounds of the unavailability of 'local fill material'; and

51 Mr Brown also relied on the fact that the subject land was under water and forms part of the Tootgarook Wetlands and that, as at August 2012, no work had commenced and the land remained under water. However, by the time the application came before the Tribunal, significant works had taken place, including 'substantial "de-watering" of the site via mechanical pumps'.[21] The Tribunal noted that the works carried out were at the developer's risk, since the validity of the Permit was under challenge.[22]

52 In this context, the Tribunal identified the enforcement application to be based on the allegation that there was 'no current planning permit authorising the subdivision of this land with associated works and that the currently certified plans of subdivision cannot be relied upon as authorising the subdivision.'[23] Alternatively, it was based on the allegation that 'the permission has expired by virtue of the subdivision not having been completed within the time specified in the permit'.[24]

53 These are issues upon which the Court has adjudicated in this appeal and they are not now amenable to a different determination by the Tribunal. The Tribunal would be bound to refuse the application for an enforcement order.

54 I note that the Tribunal heard some evidence about environmental impacts of the development. The enforcement order made by the Tribunal includes requirements for the removal of works and the preparation and implementation of a land management and revegetation plan if no planning permit is issued by a specified date. These are requirements that fall away if the Permit and the Permit Amendment is valid.

55 In my view, this is a case where, on remittal, the only decision that the Tribunal could come to as a matter of law would be to dismiss Mr Brown's application for an enforcement order.[25] In dismissing the Tribunal proceeding in these circumstances, the Court would not be making any factual, evaluative or ministerial judgments that the legislature has given to the Tribunal to make.

56 I am persuaded that, in the interests of facilitating the just, efficient, timely and cost-effective resolution of the dispute, the Court should exercise its power under s 148(7)(b) of the VCAT Act to dismiss the Tribunal proceeding.

57 In each of the appeals, the Court will order that the order of the Tribunal made on 20 December 2012 in Tribunal proceeding P2467/2012 be set aside and that the Tribunal proceeding be dismissed.

[2] Brown v Mornington Peninsula Shire Council & Ors [2012] VCAT 1938 [24] ('Reasons').

[8] Hand v Warrnambool City Council [2004] VCAT 19 [13].

[9] Melbourne Water Corporation v Domus Design Pty Ltd [2007] VSC 114 [86].

[16] Sections 1(a) and 5(1), Subdivision Act 1988 (Vic).

[17] Through amendments contained in the Subdivision Act. Paragraph (aa) was inserted in 1993, again with a view to making special and different provision for permits for subdivision.

[19] [2010] HCA 24; (2010) 241 CLR 320 ('Osland').

[20] Osland 332 (French CJ, Gummow and Bell JJ)

[25] XYZ v State Trustees Ltd [2006] VSC 444; (2006) 25 VAR 402.