//
[2020] VSC 532
General information, not legal advice.
Supreme Court of Victoria
2020-08-26
Richards J
Original judgment source is linked above.
LOCAL GOVERNMENT - Council granted permit to vary easement - Plan of variation of easement registered on title - Application for leave to appeal from Victorian Civil and Administrative Tribunal's refusal of request to cancel permit, under s 87 Planning and Environment Act 1987 (Vic) - Whether Tribunal had power to cancel permit under s 88 Planning and Environment Act 1987 (Vic) - Permit related to 'any other development of land', within s 88(b) - Permit did not relate to the use of land, within s 88(c) - Whether permit spent - Development 'substantially completed' on registration of plan of variation of easement - Tribunal had no power to cancel permit - (Vic), , (1), , ; (Vic),
1 Skabal Pty Ltd is the registered proprietor of a commercial premises at 40-42 Whitehorse Road, Deepdene. Since 2011, the property has been leased to Bridgestone Australia Ltd and has been occupied by a Bridgestone franchise. Anthony and Yvonne Bonomo own the property next door at 44-48 Whitehorse Road.
2 40-42 Whitehorse Road has the benefit of a 3.66 metre wide carriageway easement over 44-48 Whitehorse Road, along the boundary between the two properties. Until recently, the easement ran along the entire length of the boundary, between Whitehorse Road and another right of way at the rear of both properties.
3 In November 2017, the Bonomos applied to the Boroondara City Council to vary the easement, by reducing its length from 42.67 metres to 16.46 metres, measured from the front of the property. They did so by applying for a planning permit under the Planning and Environment Act 1987 (Vic) (Planning Act). Under the Boroondara Planning Scheme, a permit is required before a person proceeds under s 23 of the Subdivision Act 1988 (Vic) to create, vary or remove an easement.
4 On 27 November 2017, the Council mailed notice of the permit application to persons it considered may be affected by the proposed variation. The list of persons to whom the notice was mailed included Skabal and the occupier of 40-42 Whitehorse Road. However, the notice did not come to the attention of anyone acting on behalf of Skabal, and so it did not object to the application.
5 The Council decided to grant the permit, and issued it on 5 January 2018. The plan of variation of easement certified by the Council was registered on the title of 44-48 Whitehorse Road on 14 February 2018.
6 Skabal was unaware of the variation until 15 May 2018, when its managing agent, Kevin Sheehan, received a letter from the Bonomos' solicitors. The letter asked that the tenants of 40-42 Whitehorse Road refrain from using the part of the carriageway easement that had been removed. Mr Sheehan began to make inquiries. A title search of 40-42 Whitehorse Road obtained on 18 May 2018 provided no explanation, as the variation had not yet been registered on that title. After further inquiries, Skabal's solicitors received a letter from the Council in late July 2018, explaining what had occurred.
7 In October 2018, Skabal requested the Victorian Civil and Administrative Tribunal, under s 87 of the Planning Act, to cancel the permit. The application was opposed by both the Council and the Bonomos. The Tribunal refused to cancel the permit, for reasons given on 5 August 2019.[1]
8 In this proceeding, Skabal seeks leave to appeal the Tribunal's order refusing its application. If leave is granted, and the appeal allowed, Skabal seeks an order setting aside the Tribunal's order, and either an order directing the Registrar of Titles to cancel the variation of the easement, or an order remitting the application to be heard and determined by a differently constituted Tribunal.
9 Mr and Mrs Bonomo advised the Court that they did not intend to participate in the proceeding and would abide any order of the Court.
10 Although this is essentially a private dispute between adjoining property owners, the Council took an active role in the proceeding. It accepted that it was obliged to act impartially in performing its functions as a responsible authority under the Planning Act, but submitted that it was proper for it to defend its decision in the Tribunal proceeding, and the decision of the Tribunal in this proceeding.[2] Skabal submitted that the Council should have limited its participation in both proceedings to making impartial submissions about its powers and procedures, the proper interpretation of the Planning Act, and the procedure it followed in granting the permit. This submission was made on the basis that it was important for the Council to maintain its impartiality, given that it might have to determine a further application for a permit to vary the easement. Skabal argued that the Council's active participation in both proceedings had damaged the perception of its impartiality as a decision-maker.
11 It is not necessary to resolve these controversies in order to decide this proceeding. I accept the Council's submission that the considerations underpinning the Hardiman principle[3] do not translate to review of a decision taken by a council in its capacity as a responsible authority under the Planning Act. However, a council has ongoing duties and functions in that capacity, and is obliged to discharge those duties and functions impartially. The appearance of partiality in council decision-making can undermine the legitimacy of a decision.[4] For that reason, a council should take care that its participation in a proceeding such as this one does not provide a basis on which future decisions might be impugned.
12 For the reasons that follow, the Tribunal was correct to conclude that it did not have power to cancel the permit under s 87 of the Planning Act. That power may only be exercised as provided in s 88. The permit did not relate to construction or works within s 88(a), or to the use of land within s 88(c). It related to 'any other development of land' within s 88(b) of the Planning Act. The 'development' to which the permit related was substantially carried out when the plan of variation of easement was registered on the title for 44-48 Whitehorse Road in February 2018. By the time Skabal requested the Tribunal to cancel the permit, the permit was spent and could no longer be cancelled under s 88(b). It is therefore not necessary to decide the other questions raised in the further amended notice of appeal, concerning the alternative bases on which the Tribunal refused Skabal's request. The proceeding must be dismissed.
13 Although the Tribunal did not have power to cancel the permit, it was open to Skabal to make its own application to the Council for a permit to vary the easement to reinstate it to its original length. That course remains open to Skabal. If any such application were to be made, the Council would be obliged to determine the application on its merits, impartially, and in light of the circumstances in which it granted the permit in 2018.
14 It is a peculiar feature of Victorian property law that the power to remove or vary an easement resides with the local council, in the exercise of its functions as the responsible authority under the Planning Act. This power can be exercised without the consent of the owner of land with the benefit of the easement.
15 A planning scheme under the Planning Act may, subject to s 6A, regulate or provide for the creation, variation or removal of easements or restrictions under s 23 of the Subdivision Act 1988 (Vic).[5] Relevantly here, s 6A(2) provides:
Subject to subsection (3), a planning scheme may require a permit to be obtained before a person proceeds under section 23, 24A or 36 of the Subdivision Act 1988.
16 Clause 52.02 of the Boroondara Planning Scheme includes such a requirement, as follows:
EASEMENTS, RESTRICTIONS AND RESERVES
Purpose
To enable the removal and variation of an easement or restrictions to enable a use or development that complies with the planning scheme after the interests of affected people are considered.
Permit requirement
A permit is required before a person proceeds:
In this clause, restriction has the same meaning as in the Subdivision Act 1988.
Decision guidelines
Before deciding on an application, in addition to the decision guidelines in clause 65, the responsible authority must consider the interests of affected people.
17 Section 23(1) of the Subdivision Act provides that if a planning permit authorises the creation, removal or variation of an easement, the owner of the land burdened by the easement must, in accordance with the permit and with the Planning Act, lodge a certified plan at the Office of Titles for registration. This does not require the consent of any other person who has an estate, interest or claim in the land.[6]
18 As the Tribunal commented in Focused Vision Pty Ltd v Nillumbik Shire Council,[7] the effect of these provisions is:
... to allow the planning system by permit to expunge proprietary rights ... by the purely administrative process of a planning permit. ... This represents a fairly radical departure in property law and one would have expected the result to be set out in clear and direct language rather than in the odd circular and obscure manner in which the result seems to be achieved here.
The obscurity of the mechanism for removal or variation of an easement is compounded by the fact that 'it is not part of the core function of the planning system to re-adjust ownership rights as between ... owners as distinct from regulate the use and development of land which they own'.[8]
19 Neither the Planning Act or the Boroondara Planning Scheme provide any guidance on the proper approach for the Council to adopt in determining whether to remove or vary an easement.[9] All that is required is that the Council consider the interests of affected persons.
20 The Tribunal has developed a 'need and detriment' test to guide its consideration of this kind of permit application. The test was discussed by Deputy President Gibson in Echuca Workers & Services Club Ltd v Campaspe Shire Council:[10]
In the case of KJ Barge and Associates v Prahran City Council & Anor,[11] the Administrative Appeals Tribunal said that whether or not it would grant a permit for the removal or variation of an easement should be determined by looking at the following questions:
(i) Does the current use or the current state or condition of the dominant and servient lands (tenements) indicate a need or requirement for the continued existence of the easement; and
(ii) Would the owners of the dominant land suffer any material detriment in the use and enjoyment of that land if the easement were removed or varied?
If the answer to either of these questions is in the affirmative then the Tribunal should not grant the Permit.
In Jordan & McMahon v Stonnington CC,[12] Senior Member Byard summarised those two propositions as "need and detriment". He endorsed them as tests but noted that they were not exhaustive. Even if the Barge questions indicate refusal, they may be outweighed by considerations indicating the grant of a permit. However, he also said:
[79] ... I do not think it is appropriate to lightly extinguish or modify an existing property right, or indeed any existing legal right. There needs to be a good reason for doing so. ...
21 The Deputy President considered that this approach provided the best guidance, together with the policy of the planning scheme to consider the interests of affected people.[13]
22 Section 47(1) of the Planning Act provides for applications for permits to be made to the responsible authority if 'a planning scheme requires a permit to be obtained for a use or development of land or in any of the circumstances mentioned in section 6A(2) or for any combination of use, development and any of those circumstances'.
23 Unless the responsible authority requires the applicant to give notice, the responsible authority must give notice of an application to the persons listed in s 52(1). Notice must be given to the owners and occupiers of lots adjoining the land to which the application applies.[14] Section 145 of the Planning Act governs how notice is to be given to those persons, relevantly:
(1) Unless this Act or the regulations authorise or require a notice or order to be given in any other way, every notice or order which this Act authorises or requires a planning authority or responsible authority to give to or serve on the owner or the occupier of any land must be addressed to the owner or to the occupier of the land and -
...
(a) if the residence of the owner or occupier is known to the authority, may be given to or served on the owner or occupier or left with an adult person apparently living there; or
(b) if the owner's residence is not known to the authority -
(i) may be served on the occupier of the land or left with an adult person apparently living there; or
(ii) if there is no occupier, may be put up on a conspicuous part of the land; or
(c) if the occupier's residence is not known to the authority, may be put up on a conspicuous part of the land.
(2) Unless this Act or the regulations authorise or require a notice or order to be given in any other way, a notice or order may also be served by post by prepaid letter addressed to the owner or occupier, and in proving service it is sufficient to prove that the notice or order was addressed to the usual or last-known place of residence or of business of the owner or occupier and was put into the post.
(3) A notice or order under this Act may be addressed by the description of "the owner" or "the occupier" of the land (naming it) in respect of which the notice is given, without further name or description.
24 If the responsible authority considers that the grant of the permit may cause detriment to any other persons, it must also give notice of the application to those persons.[15] This may be done by placing a sign on the land concerned, publishing a notice in newspapers generally circulating in the area, by giving the notice personally or sending it by post.[16]
25 Before deciding on an application for a permit, the responsible authority must consider the matters set out in s 60, including the relevant planning scheme, and all objections and other submissions it has received which have not been withdrawn.[17]
26 Division 2 of Part 4 provides for reviews by the Tribunal of a decision of a responsible authority on an application for a permit.
27 Division 3 of Part 4 of the Planning Act provides for the cancellation and amendment of permits by the Tribunal. Section 87 provides:
(1) The Tribunal may cancel or amend any permit if it considers that there has been -
(a) a material mis-statement or concealment of fact in relation to the application for the permit; or
(b) any substantial failure to comply with the conditions of the permit; or
(c) any material mistake in relation to the grant of the permit; or
(d) any material change of circumstances which has occurred since the grant of the permit; or
(e) any failure to give notice in accordance with this Act; or
(f) any failure to comply with section 55, 61(2) or 62(1).
(2) The Tribunal may amend any permit to comply with the building regulations made under the Building Act 1993 if a building permit cannot be obtained under that Act for the development for which the permit under this Act was issued because the development does not comply with those regulations.
(3) The Tribunal may cancel or amend a permit at the request of -
(a) the responsible authority; or
(b) any person under section 89; or
(c) a referral authority; or
(d) the owner or occupier of the land concerned; or
(e) any person who is entitled to use or develop the land concerned.
(4) Nothing in this Division affects the power of a responsible authority to amend a permit under Division 1A.
...
(7) The Tribunal must not cancel or amend a permit on a ground mentioned in subsection (1)(a), (c) or (f) unless there has been no application under Division 2 on that ground for review of the decision to grant the permit or of a condition of the permit.
28 Section 88 sets out the limits on the power to cancel or amend a permit:
The power to cancel or amend a permit under section 87 may be exercised -
(a) if the permit relates to the construction of buildings or the carrying out of other works, at any time before those operations have been completed; or
(b) if the permit relates to any other development of land, at any time before that development is substantially carried out; or
(c) at any time, if the permit relates to the use of land.
29 A request to the Tribunal to cancel or amend a permit must be made in accordance with s 89:
(1) Any person who objected or would have been entitled to object to the issue of a permit may ask the Tribunal to cancel or amend the permit if -
(a) the person believes that the person should have been given notice of the application for the permit and was not given that notice; or
(b) the person believes that the person has been adversely affected by -
(i) a material mis-statement or concealment of fact in relation to the application for the permit; or
(ii) any substantial failure to comply with the conditions of the permit; or
(iii) any material mistake in relation to the grant of the permit.
(2) The request must be made in writing in accordance with the regulations.
(3) The Tribunal may refuse to consider a request under this section or section 87 unless it is satisfied that the request has been made as soon as practicable after the person making it had notice of the facts relied upon in support of the request.
30 The persons entitled to be heard at the hearing of a request are set out in s 90(1). They include the responsible authority, the owner and occupier of the land concerned, and the person who asked for the cancellation or amendment of the permit. The Tribunal may also hear from any other person who appears to have a material interest in the outcome of the request.[18]
31 Section 90A provides that, in determining a request, the Tribunal must take into account the matters set out in s 84B(2), as if the request were an application for review, in addition to any other matters that the Tribunal can or must have regard to. Section 84B(2) directs attention to, relevantly, the relevant planning scheme,[19] and:[20]
... the extent to which persons residing or owning land in the vicinity of the land which is the subject of the application for review were able to and in fact did participate in the procedures required to be followed under this Act before the responsible authority could make a decision in respect of the application for a permit.
32 The determination that may be made by the Tribunal after hearing a request is governed by s 91:
(1) After hearing a request, the Tribunal may direct the responsible authority to cancel or amend the permit and to take any action required in relation to the permit.
(2) The responsible authority must comply with the directions of the Tribunal without delay.
(2A) If the Tribunal directs the responsible authority to amend a permit, the responsible authority must issue an amended permit to the owner of land to which the permit relates.
(3) The Tribunal must not direct a responsible authority to cancel or amend a permit on a request under section 89(1) unless it is satisfied that -
(a) in the case of a request under section 89(1)(a) the person -
(i) could not reasonably be expected to have been aware of the application for the permit in time to lodge an objection under Division 1; and
(ii) was substantially disadvantaged by the issue of the permit; and
(b) in the case of a request under section 89(1)(b), the person was substantially disadvantaged by the matter set out in the request; and
(c) it would be just and fair in the circumstances to do so.
(3A) The Tribunal must not direct a responsible authority to amend a permit if the amendment would authorise anything which would result in a breach of a registered restrictive covenant.
(4) If a cancelled permit relates to a subdivision or consolidation any plan certified under the Subdivision Act 1988 must be surrendered to the responsible authority.
(5) A permit which relates to a subdivision or consolidation cannot be cancelled if the plan of subdivision or consolidation has been registered under the Subdivision Act 1988.
33 The Bonomos' application to vary the easement was supported by a letter dated 14 September 2017 from Rob Signorini, a licensed surveyor with Farren Group. The letter described the easement and identified Skabal as the registered proprietor of 40-42 Whitehorse Road, and the beneficiary of the easement. It continued:
Existing situation
The easements E-1 and E-2 on TP457448Q (44-48 Whitehorse Road) are currently covered by concrete pavement running between Whitehorse Road and the concrete paved laneway at the rear (southern boundary) of No. 40-42, No. 44-48 and No. 50-52 Whitehorse Road.
I have made investigations of the Council's Road Register and the carriageway easements do not appear on the register as Roads nor have the carriageway easements been declared a public highway.
Investigations have also been made using "Dial Before you Dig" asset information and there does not appear to be any Yarra Valley Water assets or Council assets within the land affect. A site inspection has however revealed the existence of two private drainage and/or sewerage pits within the easement shown as E-1 on TP457448Q. This easement is not being affected by this application.
The property at 40-42 Whitehorse Road is currently occupied by a Bridgestone Select Tyre and Auto business which has vehicle access to the front of the premises via the northern (20 m approx.) section of the easement E-2. The business has access to the laneway on the rear southern boundary via a door at the back of the premises. These premises do not use or require the southern 20.11 m of the easement E-2.
How the Variation of Easement will impact on affected people
It is deemed that the variation of the easement will have no adverse impacts on the owner or tenants of 40-42 Whitehorse Road. The Southern 20.11 m section of the easement E-2 is not required by the owners or tenants for carriageway purposes and as a result is deemed redundant for this purpose. Vehicle access to the front of the property will be maintained and pedestrian access at the rear of the premises will not be affected. Vehicle access to the rear of the premises will remain available via the laneway leading from Barnsbury Road.
Justification for Easement Variation
Justification for the easement variation is made based on the fact that none of the beneficiaries use or require that part of the easement E-2 south of E-1 for carriageway purposes.
The variation as proposed will enable an improved use of the land at 44-48 Whitehorse Road, Deepdene.
34 The Council sent out notice of the application on 27 November 2017. A notice addressed to Skabal was sent by pre-paid post to 35 Prospect Hill Road, Camberwell. This is the address for Skabal that appears on the certificate of title for 40-42 Whitehorse Road. The council officer who sent out the notices gave evidence that the address was extracted from the Council's Property and Services (rates) database. The Council also sent notice of the application to 'The Occupier' of 40-42 Whitehorse Road, by pre-paid post sent to that address. Neither notice was returned to sender.
35 Unfortunately, neither notice came to Skabal's attention. The owners of Skabal, Judith and Robert White, sold 35 Prospect Hill Road, Camberwell in 1992. A current ASIC extract for Skabal shows that its registered office has, since December 2016, been KPMG's office at 727 Collins Street, Docklands. It appears that Skabal did not advise either the Registrar of Titles or the Council of its current company address.
36 Since at least 2010, the Council had sent rates notices and some other correspondence addressed to Skabal to the post office box of its managing agent, Kevin Sheehan Property. However, the Council maintains a separate database for rates notices, which was not consulted by the council officer who prepared the notices of the Bonomos' permit application. To compound matters, the operators of the Bridgestone franchise did not recall seeing the notice addressed to The Occupier, and did not refer it to Skabal.
37 On 3 January 2018, a Council planning officer recommended that a planning permit be granted for the variation of the easement, subject to conditions and endorsed plans. Her reasons for supporting the application were:
38 This recommendation was approved by the Council's delegate on 5 January 2018, and the Council then issued planning permit number PP17/01215. The permit allowed variation of the carriageway easement in accordance with the endorsed plan of variation.
39 In February 2018, the Bonomos' solicitors lodged an application to register the variation of easement with the Registrar of Titles. The plan of variation was registered on the title for 44-48 Whitehorse Road on 14 February 2018. It was not registered on the title for 40-42 Whitehorse Road until some months later.
40 On 26 October 2018, Skabal requested the Tribunal to cancel the permit, under s 87 of the Planning Act.
41 The Tribunal refused Skabal's application, on several grounds. The senior member noted that the Planning Act imposed a number of preconditions that Skabal had to satisfy before the Tribunal could even contemplate whether the permit should be cancelled. The matters that the Tribunal was required to consider were identified as:[21]
42 In relation to the first question, the Tribunal noted:[22]
The Tribunal must firstly consider whether the request for cancellation falls under one of the provisions of section 88. If the permit allows a use of land, then the Tribunal has power to consider cancelling such a permit at any time. However, sections 88(a) and (b) of the PE Act refer to construction of buildings, carrying out of works or other forms of development and if they have been completed at the time of the request, then the Tribunal has no power to cancel a permit and that is the end of the request.
43 The competing submissions as to the application of s 88 of the Planning Act were then set out. The Council and the Bonomos submitted that the permit was for 'any other development of land' under s 88(b), and that, because the variation of the easement had been registered on the title, the development had been substantially carried out and the Council had no power to cancel the permit. Skabal submitted that the permit was for a use of the land, and could be cancelled at any time.
44 The Tribunal concluded that the permit was for the development of the land:[23]
The extract from Hansard of the second reading speech for the Bill that became the Subdivision (Amendment) Act 1989 sheds light on the change to delete the amendment introducing the creation, variation or removal of easements into the definition of development:
Amendment No. 52 deletes the proposal in the principal Act to extend the definition of 'development' in the Planning and Environment Act to cover easements, restrictions and encumbrances.
This change is in line with amendments made to the principal Act in the Legislative Council. This amendment also amends the Planning and Environment Act to ensure that planning schemes, where appropriate, can provide for the creation, variation or removal of easements and restrictions. This combined effect of these changes is to ensure that planning permits do not have to be obtained for easements under most planning schemes and to place the onus on the planning authorities to specify, by amending their planning scheme, those circumstances in which they feel a permit should be required for an easement.
These minor corrections ensure that a council's consent is obtained before any instrument that removes a carriageway is registered at the Titles Office.
'Development' is defined in section 3 of the PE Act to include:
(a) the construction or exterior alteration or exterior decoration of a building; and
(b) the demolition or removal of a building or works; and
(c) the construction of carrying out of works; and
(d) the subdivision or consolidation of land, including buildings or airspace; and
(e) the construction or putting up for display of signs or hoardings.
This is not an exclusive definition. Whilst it includes certain developments, it does not exclude other forms of development not listed.
As with a 'subdivision' an easement relates to a dealing with land. There is not necessarily anything seen on the land when it is subdivided, or when an easement is placed over the land. Rather, in both circumstances they are defined on a specific title to the land.
As stated in Pitt v Surf Coast SC:
As 'land' is defined to include "(c) any estate, interest, easement, servitude, privilege or right in or over land" there is an ability to imply that development includes a variation to an easement.
In Pitt the Tribunal found that as the limb that related to a variation to an easement was removed from a plan of subdivision that was sent to the Titles Office, the Tribunal retained jurisdiction to exercise its powers under sections 87-91 of the PE Act. In other words, there had been no registration of the variation of the easement at the Titles office.
In this case as with other developments, the permitted variation allowed the commencement of an application to the Titles Office. What has been permitted under the permit was completed once the variation was registered at the Titles Office. The permit approval then ceases to have any continuing effect.
It is of interest to note that section 91(5) of the PE Act indicates that if a permit relates to a subdivision or consolidation, the permit cannot be cancelled if the plan of subdivision or consolidation has been registered under the Subdivision Act 1988.
The permit relating to the variation of an easement is required under clause 52.02 of the Boroondara Planning Scheme to enable a variation to be carried out under section 23 of the Subdivision Act 1988. In this respect I consider section 91(5) of the PE Act provides guidance that if something is carried out under the Subdivision Act 1988, then once it has been registered, as in this case, the permit cannot be cancelled.
Whilst the Pitt decision did not consider the legislative changes and can be distinguished as it involved subdivision, its conclusions that the variation of the easement could be considered, as at that stage of the development, the variation had not formed part of the subdivision and was therefore not registered on the title, is in my view, similar to a variation of an easement being 'development'.
The permit allowing the variation of the easement is now spent. What was permitted under the permit has now been registered on the relevant title. There is nothing further that can occur under the permit. Two conditions were contained in the permit. One indicating there could be no change to the endorsed plans and an expiry time for the variation permitted under the permit to be carried out. Plans were endorsed which allowed for the application to be made to the Titles office under section 23 of the Subdivision Act 1988. The expiry condition is not relevant as what was permitted has occurred. It therefore ceases to have any effect.
As stated in Cope v Hobsons Bay CC:
A planning permit which authorises the development of land may or may not have continuing relevance after the development has been carried out. The answer depends on both the nature of the development and the form of the permit (including the conditions in the permit).
A variation to an easement is for the purposes of section 88(b) of the PE Act 'any other form of development' which has been completed with the registration on the title to the land.
45 As a result, the Tribunal determined that it did not have jurisdiction to hear Skabal's request to cancel the permit.[24]
46 Although it was not necessary to her decision, the senior member went on to consider the remaining issues. In relation to notice, she was satisfied that the Council gave notice to both Skabal at its last known place of business and to the occupier of 40-42 Whitehorse Road, in accordance with the requirements of the Planning Act:[25]
Even if the council only relied upon the address of the owner as shown on the Certificate of Title, this address was 35 Prospect Hill Road, Camberwell, Vic 3124. For the purposes of section 145(2) of the PE Act this was the 'last-known place of business'.
However, she accepted that Skabal did not receive the notice, and that it had standing under s 89.
47 As to s 89(3) of the Planning Act, the Tribunal found that Skabal was made aware of the variation on 15 May 2018, and lodged its request with the Tribunal some five months after it had notice of the facts relied upon. The Tribunal considered that was an unreasonable amount of time, and that the request was not made as soon as practicable.[26]
48 The Tribunal rejected Skabal's submission that there had been a material mistake in relation to the grant of the permit, focusing on Skabal's claim that the variation detrimentally affected the rear access to its property:[27]
I am unable to conclude there has been any detrimental impact due to the reduction of the easement in the ability of Bridgestone to access the side and rear of its building. Under clause 52.02 the interests of affected people are required to be considered. I agree with the council that this consideration requires an assessment of the current state or condition of the property benefiting from the easement and in the current circumstances, in my view there is no detrimental impact Bridgestone being able to access all entries into its building.
I am unable to conclude there was any material mistake in the granting of the permit. The council clearly having considered the likely impacts on the benefiting property reached a considered view.
49 For the same reasons, the senior member said that she was 'unable to conclude that it would be just and fair in the circumstances to cancel the permit'.[28]
For the above reasons the variation of an easement is a form of development. Once the variation has occurred and it has been registered on the relevant Certificate of Title, the Tribunal has no power to consider cancellation of the permit.
I am unaware of any provision of any particular enabling enactment that would provide me with jurisdiction to order the Registrar of Titles to cancel the variation of the easement on the relevant Certificate of Title.
Did the permit relate to 'any other development of land'?
51 The notice of appeal raised a number of questions about the Tribunal's conclusion that it did not have jurisdiction to determine the request under s 88 of the Planning Act. Skabal contended that the Tribunal had jurisdiction, because the permit related to 'the use of the land' under s 88(c), which could be cancelled at any time. The submission was that the Tribunal was wrong to conclude that the permit related to 'any other development of land' under s 88(b), and so could only be cancelled before the development had been substantially carried out.
52 Skabal submitted that the variation of an easement was not a development of land. It referred first to the definition of 'development' in s 3 of the Planning Act:
development includes -
(a) the construction or exterior alteration or exterior decoration of a building; and
(b) the demolition or removal of a building or works; and
(c) the construction or carrying out of works; and
(d) the subdivision or consolidation of land, including buildings or airspace; and
(e) the placing or relocation of a building or works on land; and
(f) the construction or putting up for display of signs or hoardings;
It submitted that, having regard to the definition, the plain meaning of 'development' was either something physical associated with the land (paragraphs (a), (b), (c), (e) and (f) of the definition), or the subdivision or consolidation of the land (paragraph (d)).
53 This interpretation was supported by the legislative history of the definition of 'development' in the Planning Act. In 1988, the definition was amended by the Subdivision Act,[30] which inserted a new paragraph (da), as follows:
the creation, variation or removal of an easement, restriction or encumbrance;
Before this amendment took effect, however, it was deleted by s 19(w) of the Subdivision (Amendment) Act 1989 (Vic). Skabal submitted that this was a clear indication that the legislature did not intend 'development' to include the variation of an easement. This legislative history was not considered by the Tribunal in Pitt v Surf Coast Shire Council,[31] in which the Tribunal cancelled a permit to vary an easement on the basis that a 'development' includes a variation of easement.
54 Skabal argued that the permit related to the use of land, within the meaning of s 88(c), even if it was not for the use of land. It drew attention to the fact that the Bonomos sought to vary the easement in order to 'enable an improved use of the land at 44-48 Whitehorse Road'.
55 The Council submitted that the Tribunal was correct to conclude that the permit related to 'other development of land' within s 88(b). It argued that the legislative history relied on by Skabal was inconclusive, and did not alter the inclusive nature of the definition of 'development', or the fact that the word is used in the active sense in the Planning Act.[32] The definition of development encompasses changes affecting the title to land, defined in the Planning Act to include 'any estate, interest, easement, servitude, privilege or right in or over land'.[33] The Council relied on the Tribunal's decision in Pitt as support for this characterisation.
57 At the hearing of the appeal, I raised with counsel the possibility that the permit did not relate to either the development or the use of land, but was instead a permit to remove or vary an easement - being one of 'the circumstances mentioned in section 6A(2)'.[36] Skabal embraced that possibility, as an alternative reason why s 88 did not apply to its application to cancel the permit. The Council maintained its position that the permit related to the development of land. Further, it submitted that the effect of s 88 was that the Tribunal could only cancel or amend a permit in the circumstances set out in (a) to (c) - and not otherwise. It followed that, if the permit was not related to the development or the use of the land, the Tribunal had no power to cancel it.
58 The Planning Act is unhelpfully messy on the question of whether a request to cancel a permit to vary an easement is within the limits of the Tribunal's powers set by s 88. Perhaps because the mechanism for removing and varying easements is 'not part of the core function of the planning system',[37] it sits awkwardly within the overall scheme of the Planning Act. I have concluded that the better view is that a permit for the variation of an easement relates to 'any other development of land'. My reasons for reaching that conclusion are:
(a) Section 88 sets out only three circumstances in which the power to cancel or amend a permit may be exercised. Unless one of paragraphs (a), (b) or (c) applies, the Tribunal has no power to cancel or amend the permit.
(b) The provisions of Pt 4, Div 3 of the Planning Act are 'designed to provide a remedy for parties who were denied rights they were supposed to have'.[38] As a remedial provision, s 88 should be interpreted beneficially, 'so as to give the fullest relief which the fair meaning of its language will allow'.[39] It 'should not receive so strict and narrow an interpretation as to defeat the remedy intended to be given'.[40] In particular, s 88 should if possible be interpreted to mean that the Tribunal has power to cancel or vary a permit to remove or vary an easement.
(c) A permit to remove or vary an easement plainly does not fall within s 88(a), which concerns a permit relating to the construction of buildings or the carrying out of other works.
(d) I cannot accept that a permit to remove or vary an easement is a permit relating to the use of the relevant land, within s 88(c). It is not a permit for the use of land for some purpose,[41] but a permit that authorises an alteration of proprietary interests in land. That is so, regardless of an individual applicant's purpose in seeking to vary an easement.
(e) That means that, unless a permit to remove or vary an easement is a permit that relates to 'any other development of land', within s 88(b), the Tribunal would have no power to cancel or amend such a permit. A person whose property interests had been affected by the grant of the permit would have no recourse to the Tribunal under Pt 4, Div 3.
(f) While the definition of 'development' in s 3 of the Planning Act does not specifically refer to the removal or variation of an easement, it is an inclusive definition. The definition of 'land' includes 'any estate, interest, easement, servitude, privilege or right in or over land'.[42] It follows that 'any other development of land' in s 88(b) is capable of including an alteration of proprietary interests such as the removal or variation of an easement.
(g) There are some indications that 'development' bears a narrower meaning. The legislative history relied on by Skabal suggests that Parliament intended to omit easements from the definition of 'development'. Further, the language of s 47(1) distinguishes between the use of land, the development of land, and 'any of the circumstances mentioned in section 6A(2)'.[43]
(h) Neither of those indications is conclusive. It appears from the second reading speech for the Subdivision (Amendment) Act 1989, extracted in the Tribunal's reasons,[44] that the guiding legislative purpose was to ensure that the Planning Act did not require planning permits for all easements, but to leave it to councils to specify the circumstances in which a permit is required for an easement. No intention was expressed to limit the Tribunal's jurisdiction under Pt 4, Div 3. The phrase 'any of the circumstances mentioned in section 6A(2)' adds clarity in s 47(1), but does not exclude those circumstances from relating to the development of land in s 88.
(i) The broader meaning of 'any other development of land' in s 88(b) is to be preferred. It realises the remedial effect of Pt 4, Div 3 in relation to permits to remove or vary an easement.[45] It also gives effect to the presumption that, where a provision is capable of more than one meaning, the meaning to be preferred is that which least interferes with private property rights.[46]
59 For those reasons, the Tribunal was correct to conclude that the permit related to the development of land, within s 88(b) of the Planning Act.
60 Next, Skabal challenged the Tribunal's conclusion that it did not have power to cancel the permit, because the development had been substantially carried out. It pointed out that s 91(5) of the Planning Act expressly provides that a permit that relates to a subdivision or consolidation cannot be cancelled if the plan of subdivision or consolidation has been registered, but is silent about the effect of registering a plan of variation of easement. It argued that the Tribunal should have concluded that there was no analogy between a subdivision or consolidation, and a variation to an easement, and should have concluded that registration of the plan of variation did not prevent cancellation of the permit.
61 The Council submitted that, having regard to the nature of the permission granted, the permit was wholly spent upon registration of the plan of variation of easement, and had no continuing legal effect after that time. On the basis that the permit related to 'any other development of land', upon registration of the plan the development was 'substantially carried out' for the purposes of s 88(b), and so the Tribunal had no power to cancel the permit. Regardless of how the permit was characterised, there was nothing that the Tribunal could cancel.
62 I accept the Council's submission that, once the plan of variation of easement had been registered on the titles, the permit was spent and the development it allowed was substantially carried out.
63 The question of whether a planning permit is spent arises most commonly in proceedings to enforce a condition of a permit. Manderson v Wright[47] was such a proceeding, involving a dispute between neighbours about native vegetation conditions on a permit to subdivide. Emerton J surveyed the relevant authorities:[48]
In Hillpalm Pty Ltd v Heavens Door Pty Ltd,[49] the High Court of Australia held that a condition imposed in a permit for the subdivision of land could not be enforced against a new owner of a lot created by the subdivision. If council consent for a subdivision operated to create a continuing obligation or a right in rem, and that right affected a later transferee of a lot in the subdivision, there would be a fundamental question about how the creation of such an obligation or right would be consistent with the effective operation of a system of Torrens title.[50]
In Cope v Hobsons Bay City Council,[51] Morris J, as President of the Victorian Civil and Administrative Tribunal, had to consider whether a planning permit was spent following the completion of the development authorised by the permit. His Honour observed that a planning permit that authorises the development of land may or may not have continuing relevance after the development has been carried out. The answer depends on both the nature of the development and the form of the permit (including the conditions in the permit). His Honour said:[52]
In the case of a permit (or, for that matter, a planning scheme provision) allowing the subdivision of land, it has generally been accepted in Victoria that once the subdivision has been effected and new titles have issued, the permit (or planning scheme provision) is no longer relevant; and any condition which purports to have an independent operation after this time is invalid.
Thus, a responsible authority has not been able to enforce a condition imposed upon a subdivision by a planning scheme provision requiring acoustic protection to new dwellings once the subdivision had been carried out: see City of Whittlesea v Jala Pty Ltd.[53] Similarly, a condition imposed upon a subdivision permit requiring the provision of building envelopes has been conceded to be of no independent force or effect after the subdivision has been carried out: Kruska v Whittlesea City Council.[54]
The President observed that the decision in Hillpalm was consistent with the principle that once the subdivision has been effected and new titles have been issued, the planning permit for the subdivision is no longer relevant. He expressed the "tentative view" that if an obligation imposed upon a subdivider had not found its way into or become attached to the title of a lot, it could not bind the new owner of the lot, for this would be inconsistent with s 42 of the Transfer of Land Act 1958 (Vic).
64 Her Honour agreed that, 'as a general rule, a planning permit for a subdivision will be spent once the plan of subdivision has been registered and new titles have issued'.[55]
65 More recently, in Khan v VCAT,[56] the Court of Appeal accepted the general rule that 'once subdivision has been effected and new titles issued, the permit ... is no longer relevant and of no continuing independent force or effect'.[57] The rule is not absolute, and each case will depend on the permit issued, and any conditions imposed, in the context of the Subdivision Act.[58] All of the conditions that Mr Khan sought to enforce against the developer were spent on registration of the plan of subdivision, and he could not obtain any relief under s 114 of the Planning Act.
66 These authorities concern permits to subdivide land, as distinct from a permit to remove or vary an easement. Although they are not directly on point, they focus attention on the legal effect of the permit, and the 'fundamental question' of the 'effective operation of a system of Torrens Title'.[59]
67 The permit granted by the Council in this case simply allowed variation of the easement, in accordance with the endorsed plan of variation of easement. The permit was expressed to expire if the plan of variation of easement was not certified within two years of the issue date of the permit, or if the plan was not registered within five years of the date of certification.
68 The permit must be read in the context of the Subdivision Act. Section 23(1) of that Act provides:
If a planning scheme or permit regulates or authorises the creation, removal or variation of an easement or restriction, the owner of the land burdened or to be burdened by the easement or restriction must, in accordance with the planning scheme or permit and with the Planning and Environment Act 1987, lodge a certified plan at the Office of Titles for registration.
69 Section 24 of the Subdivision Act provides, relevantly:
What is the effect of registration?
(1) The registration of a plan takes effect when the Registrar records that the plan has been registered.
(2) Upon registration -
...
(d) any easement, restriction or other right is created, varied or removed as specified in the plan; and
...
(f) the registered plan replaces or modifies any previous registered plan; and
(g) if it is a plan referred to in section 23 ..., the registered plan amends any previous registered plan in the ways indicated in that later registered plan.
...
(5) The Registrar must make any amendments to any registered plan or to the Register under the Transfer of Land Act 1958 that are necessary because of the operation of this Act.
...
70 Further context is provided by the Transfer of Land Act 1958 (Vic), under which a folio of the Register is conclusive evidence that the person named in the folio as the proprietor has the estate or interest in the land described in folio.[60] The estate or interest of a registered proprietor of land is held subject to those encumbrances recorded on the relevant folio of the Register, but 'absolutely free from all other encumbrances whatsoever'.[61] The majority in Hillpalm emphasised the indefeasibility of title under the Torrens system, and rejected the proposition that a title described in the Register could be held subject to unregistered permit conditions.[62]
71 In accordance with the permit granted by the Council, the certified plan was registered on 14 February 2018, when it was recorded on the title for 44-48 Whitehorse Road. It was not immediately recorded on the title for 40-42 Whitehorse Road, but this had occurred before Skabal made its request to the Tribunal in October 2018. By that time, the registered interests of the Bonomos and Skabal in the land subject to the easement had been amended in the Register, as contemplated by the permit. The Tribunal had no power to cancel the permit under s 88(b) of the Planning Act, because the 'development' allowed by the permit had been substantially - indeed fully - carried out.
72 The correctness of the Tribunal's conclusion that the permit was spent can be tested by considering whether certiorari would have been available to quash the permit, had Skabal instead sought judicial review of the Council's decision to grant the permit. I do not think it would. As the High Court explained in Wingfoot Australia Partners Pty Ltd v Kocak:[63]
The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an "apparent legal effect".[64] An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable.
Here, the legal effect of the permit was spent once the plan of variation of easement was registered on the titles. From the time that occurred, there was nothing that could have been quashed by an order in the nature of certiorari. Nor could the Tribunal have cancelled the permit.
73 Unfortunately for Skabal, the plan of variation of easement had been registered on the Bonomos' title before Skabal became aware that the permit had been issued. It was registered on the title to 40-42 Whitehorse Road soon afterwards. In those circumstances, the only course that was open to Skabal was to make its own application to the Council for a permit to vary the easement to reinstate it to its original length. That course remains open.
74 If such an application were to be made, Council would be obliged to determine it on its merits, impartially, and having regard to the circumstances in which the easement was varied in 2018. Relevant matters for the Council to consider would include:
(a) Skabal was unaware of the Bonomos' application, in part because the Council did not send notice of the application to the address to which it had, for many years, sent rates notices and other correspondence. While the Council technically complied with the notice requirements of s 145 of the Planning Act, it failed to bring the application to Skabal's notice before expunging its proprietary interest in part of the easement. The notice regime in s 145 may be better suited to the core function of the planning system than it is to adjusting private ownership rights.[65]
(b) The 'need and detriment' test developed by the Tribunal to guide consideration of an application for a permit to vary an easement was not applied by the Council officer who assessed the application.[66]
(c) The permit was granted in the absence of any demonstrated need for the variation sought. Mr and Mrs Bonomo sought the variation to enable an 'improved use' of their land that was not specified in their application.[67]
(d) The permit was granted in reliance on assertions made by the Bonomos' surveyor that 'the variation of the easement will have no adverse impacts on the owner or tenants of 40-42 Whitehorse Road' and that 'none of the beneficiaries use or require that part of the easement E-2 south of E-1 for carriageway purposes'.[68] The accuracy of those assertions was doubtful, in light of the evidence called by Skabal during the Tribunal hearing.
(e) The permit was granted without having heard from either the owner or the occupier of 40-42 Whitehorse Road about the detriment of varying the easement, including the effect on the quality of rear access and on the value of the property.
75 The Council's decision on any such application would be subject to review by the Tribunal under Pt 4, Div 2 of the Planning Act.
76 Since I have concluded that the Tribunal did not have power to cancel the permit, it is not necessary to determine the other questions raised in Skabal's notice of appeal. The appeal must be dismissed.
77 I will make orders granting Skabal leave to appeal, but dismissing the appeal. I will hear the parties on the question of the costs of the proceeding.
[1] Skabal Pty Ltd v Boroondara CC [2019] VCAT 1160 (Reasons).
[2] Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (2008) 19 VR 432, [29]-[39]; cf R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35-36.
[4] See, for example, Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135.
[5] Planning and Environment Act 1987 (Vic) (Planning Act), s 6(2)(g). A 'restriction' means 'a restrictive covenant or a restriction which can be registered, or recorded in the Register under the Transfer of Land Act 1958': Planning Act, s 6A(1); Subdivision Act 1988 (Vic), s 3(1) - definition of 'restriction'.
[7] [2003] VCAT 1393 (Focused Vision), [40].
[9] This lack of guidance was also the subject of comment by the Tribunal in Focused Vision, [53].
[10] [2009] VCAT 1633, [25]-[26] (Echuca Workers Club).
[12] [2004] VCAT 2008, [41]-[81].
[14] Unless the responsible authority is satisfied that the grant of the permit would not cause material detriment to any person: Planning Act, s 52(1)(a).
[23] Reasons, [19]-[31] (citations omitted).
[30] Subdivision Act (as enacted), Sch 2, item 29.
[31] [2000] VCAT 1664, [38]-[40].
[32] APN Outdoor (Trading) Pty Ltd v Melbourne City Council [2012] VSC 8; (2012) 187 LGERA 231, [50].
[33] Planning Act, s 3 - definition of 'land'.
[34] Section 3 defines 'use', in relation to land, to include 'use or proposed use for the purpose for which the land has been or is being or may be developed'.
[38] Hall v City of Doncaster and Templestowe (1992) 10 AATR 68, 89.
[39] Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156, 164 (Gibbs CJ, Mason, Wilson and Dawson JJ), citing Bull v Attorney-General (NSW) (1913) 17 CLR 379, 384 (Isaacs J).
[40] Hall v City of Doncaster and Templestowe, 89.
[41] See generally APN Outdoor, [57]-[64] (citations omitted).
[42] Planning Act, s 3 - definition of 'land'.
[43] See also Planning Act, ss 68(3A), 81(1).
[45] Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156, 164 (Gibbs CJ, Mason, Wilson and Dawson JJ).
[46] R&R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; (2009) 237 CLR 603, [43]-[44] (French CJ).
[47] (2016) 222 LGERA 1 (Manderson v Wright).
[48] Manderson v Wright, [22]-[24].
[49] [2004] HCA 59; (2004) 220 CLR 472 (Hillpalm).
[51] [2004] VCAT 2487; (2004) 140 LGERA 391 (Cope).
[56] (2018) 235 LGERA 91 (Khan).
[59] Hillpalm, [51] (McHugh A-CJ, Hayne and Heydon JJ).
[60] Transfer of Land Act 1958 (Vic), s 41.
[61] Transfer of Land Act, s 42(1). The indefeasibility of a registered proprietor's title is subject to the limited exceptions identified in s 42.
[62] Hillpalm, [51]-[55] (McHugh A-CJ, Hayne and Heydon JJ).
[63] [2013] HCA 43; (2013) 252 CLR 480, [25].
[64] Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149, 159.
Skabal Pty Ltd
Boroondara City Council [2020] VSC 532
(2008) 19 VR 432
(1980) 144 CLR 13
(2015) 255 CLR 135
(2012) 187 LGERA 231
(1986) 160 CLR 156
(1913) 17 CLR 379
(2009) 237 CLR 603
(2016) 222 LGERA 1
(2004) 220 CLR 472
(2004) 140 LGERA 391
(2018) 235 LGERA 91
(2013) 252 CLR 480
(1996) 185 CLR 149