Consideration and application of principles in the case of Benedetti v Moonee Valley City Council [2005] VSC 434 - ongoing effect of conditions in permits after development completed and land is sudivided

The issue in this case was whether planning permission was required by way of amendment of plans endorsed under a permit, which allowed construction of two dwellings, for buildings and works that would not otherwise now require a permit under the planning scheme. The permit had a condition, which provided that the development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

The Supreme Court held in Benedetti v Moonee Valley City Council [2005] VSC 434 that such a condition continues to have effect while the owner of the land takes the benefit of the permit. While the development is maintained, the conditional obligation not to modify the layout or the size of the buildings persists.

The Tribunal found that the condition did not cease to have effect simply because the land has been subdivided. If the land was a vacant lot, a new dwelling could be constructed without the need for a planning permit. Buildings and works of the type now in contention could, in those circumstances, be undertaken without the need for a planning permit. Indeed, the present dwelling on the lot could be demolished and a new dwelling constructed without the need for a permit. But the point of Benedetti is that when the existing building was constructed it required a permit. The permit contained condition 2, which provides that the development as shown on the endorsed plans must not be altered without the written consent of the responsible authority. The applicant has taken the benefit of this permit. Having done so, condition 2 will continue to have effect while the development allowed by the permit is maintained. This means that matters such as fences, landscaping and other elements of the development shown on the endorsed plans may not be changed without the consent of the responsible authority (or in this case, the Tribunal) even though they may not otherwise require a permit under the planning scheme.

Section 87A Planning and Environment Act 1987 - application to amend endorsed plans under a permit to retrospectively approve variations to buildings and works which depart from endorsed plans. Application of principles in Benedetti v Moonee Valley City Council [2005]VSC 434

Box v Moreland CC (Including Summary) (Red Dot) [2014] VCAT 246

1. The Tribunal rules that planning consent is required to change any aspects of the development shown on the plans endorsed pursuant to planning permit MPS/2008/829.
2. This proceeding is listed for hearing on 23 May 2014 at 2.15pm, before Member Deidun to consider on the merits whether the plans endorsed pursuant to planning permit MPS/2008/829 should be amended to include the changes set out in the notice pursuant to practice note PNPE9 of an amendment of an application dated 21 February 2014.

Mr Patrick Cauchi, town planner, of M Plan Planning Consultants

1. This proceeding is an application under section 87A of the Planning and Environment Act 1987 to amend plans endorsed pursuant to planning permit MPS/2008/829. The permit allows construction of two dwellings in a side by side arrangement. The plans endorsed pursuant to the permit depict the construction of a timber paling fence to a height of 1.8 metres. The applicant, who is the owner of one of those dwellings (No. 43A), has instead constructed the fence of colourbond material. In addition, the applicant has constructed a 2.0 metre high masonry fence within his property set back 150mm from the title boundary behind the colourbond fence.
2. The application was initially to approve retrospective amendments to the endorsed plans to match the fencing that has been constructed. However, at a hearing before Member Deidun on 16 December 2013, it became apparent that there were a number of other discrepancies between the built form and the endorsed plans.
3. The applicant has now given notice in accordance with VCAT's Practice Note PNPE9 - Amendment of Plans and Applications of an application to amend the plans forming part of the section 87A proceeding. The following are listed as the changes for which approval is sought:
   • Construction of a 2.0 metres high rendered fence to be setback 150mm from the rear title boundary;
   • A new stair case and an increase in the size of the deck area along the western side of the dwelling;
   • The inclusion of a roof area over the deck area adjoining family room;
   • The inclusion of a doorway access from the side setback along the western side of the dwelling;
   • The creation of an external doorway along the western elevation which leads to the basement;
   • An extension to the deck area in order to accommodate the staircase;
   • The inclusion of obscure glazing, in lieu of timber battens to screen the deck area;
   • Minor amendments included as part of the landscape plan.

1. However, before these changes are considered on their planning merits, the applicant has raised a question of law. The applicant submits that no permit is required for these buildings and works, because they are exempt under the Residential 1 Zone provisions of the Moreland Planning Scheme. The question of law is:

Whether a planning permit or planning consent is required for the building and works associated with a single dwelling on a site greater than 300 square metres.

1. At the practice day hearing on 31 January 2014, the Tribunal considered submissions from the applicant and the responsible authority on this question of law. During the course of the hearing, we asked the parties how they considered the case of Benedetti v Moonee Valley CC[1] impacted on their submissions. Further time was provided to the parties to make additional submissions on this point.

Is planning permission required for the buildings and works?

1. At all relevant times, the subject land has been included in a Residential 1 Zone with no overlays under the Moreland Planning Scheme.
2. At the time when the permit was granted, the land comprised a single lot with a total site area of 780 square metres. A permit was required for the construction of two or more dwellings on a lot pursuant to clause 32.01-4 of the planning scheme. No permit is required to use the land for the purpose of a dwelling.
3. The permit allowed construction of two attached double storey dwellings in accordance with the endorsed plans. Condition 2 provides:
   1. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
4. It is common ground that there have been modifications to the built form on the applicant's land at No 43A which are not shown on the endorsed plans.
5. Since the grant of the permit and construction of the two dwellings, the land has been subdivided and each dwelling is now on a separate title.[2] Each lot is approximately 390 square metres in area.
6. The applicant submits that no permit is required under the planning scheme to construct or extend one dwelling on a lot of over 300 square metres. In this respect, neither clause 32.01-4 is relevant because the circumstances have changed and there is no longer two or more dwellings on a single lot, and clause 32.01-3 is not relevant because a permit is only required to construct or extend one dwelling on a lot between 300 square metres and 500 square metres if specified in the schedule to this zone and the land is not so specified.
7. Notwithstanding the planning permit and condition 2 in particular, the applicant says that the development permit has "run its course" with the subdivision of the land. This is not to say that there are no controls over the future development of the land, but with respect to any future buildings and works on this site associated with the existing dwelling, those controls are within the building controls and the Fences Act.
8. The applicant suggested that conditions, which include ongoing obligations that were placed on the planning permit for development, are to a certain degree "ultra vires". The applicant submitted:

This contention was based on the presumption that where in the future a development, once constructed and subdivided, that the prospects of the planning controls are to no longer apply, placing conditions with ongoing obligations, particularly when the prospects of the site are to be afforded the right of not requiring a planning permit is ultra vires.

1. The type of conditions included in the permit are standard planning conditions found in numerous permits for the development of two or more dwellings on a lot. We are not persuaded that any tenable case can be made for declaring any of them to be invalid for reasons that were canvassed in the Supreme Court case of Benedetti v Moonee Valley City Council.
2. The real issue is whether a permit once issued for a development has an ongoing role and authority once the development is complete and even though circumstances may change so that under the planning scheme no permission is required for development that departs from the development as originally approved. This issue was the subject of the decision by Osborn J in Benedetti v Moonee Valley City Council.
3. In Benedetti's case, a permit was granted in 1994 for the construction of a residential dwelling that would exceed 6 metres in a Skyline Area in accordance with endorsed plans and subject to conditions, including:
   1. The layout of the site and the size of the proposed buildings and works as shown on the endorsed plan, shall not be altered or modified (whether or not in order to comply with any Statute, Statutory Rule or By-law or for any other reason) without the consent of the Responsible Authority.
   2. No new buildings or works shall be erected or constructed and no existing buildings shall be enlarged, rebuilt or extended (whether or not to comply with any Statute, Statutory Rule or By-law or for any other reason) without the consent of the Responsible Authority.
4. Condition 1 is very similar to condition 2 of the subject permit.
5. The reason why a permit was required in 1994 was that the property was the subject of a Skyline Area control pursuant to the then Essendon Planning Scheme. The control required a permit for buildings and works but not if they were not more than 6 metres above ground level. A similar control continued to apply under the Moonee Valley Planning Scheme.
6. The Benedettis proposed an extension to the dwelling that was not more than 6 metres above ground level. The Tribunal held that such building work would contravene conditions 1 and 2 of their permit. On appeal to the Supreme Court, the question was whether condition 1 had any ongoing operation after completion of the works permitted by the permit issued in 1994. With respect to condition 2, the question was whether it was beyond power because it regulates the land as a whole.
7. In Benedetti, Osborn J set out in detail the scheme established by provisions in the Planning and Environment Act 1987 for the grant of permits. In particular, he noted that development approval may be tied to a condition specifying a requirement for approved plans. In commenting on the purpose of condition 1, he said:

[27] A condition in the form of Condition 1 in the present case may be regarded as having two purposes. First, the condition has a restrictive function. It ties the proposed development to a permitted relationship between size and context. Secondly, it has a facilitative function enabling by way of proviso minor modifications of endorsed plans and consequently to the permitted development. The condition does not, however, merely provide for modification of the plans, it provides that the layout of the site and the size of the proposed buildings and works shown on the plan shall not be altered or modified without the consent of the responsible authority.[3]

1. In considering the contention that condition 1 is no longer of any operative effect but was spent upon the completion of the buildings and works the subject of the permit, His Honour held:

[31] In my view Condition 1 continues to have effect while the owner of the land takes the benefit of the permit. It will have no effect if the permitted development which includes an element over six metres is demolished, but while such development is maintained, the conditional obligation not to modify the layout or the size of the buildings persists.

[32] This conclusion is supported by four principal considerations:

(a) the statutory scheme governing expiry of permits contemplates that a development permit may continue to have effect after completion of the development;

(c) the long-standing understanding of such conditions; and

(d) the practical consequences of the alternative conclusion.

[33] The scheme of s.68 of the Act is that a development permit will expire if the development is not commenced within a certain time or completed by a certain time. The section does not provide that the permit expires upon completion of the development. The scheme of the Act does not preclude the possibility that a development may be subject to continuing conditions.

[34] The plain meaning of Condition 1 is that it is intended to operate prospectively and that it imposes an ongoing limitation upon the alteration or modification of the layout of the site and the size of the proposed buildings and works. In this regard it is directly comparable to Condition 5 which required the external materials and appearance of the building to be maintained.[4] Permit conditions are intended to be read sensibly and in a non-technical manner.[5] There is nothing in the language of Condition 1 to suggest that it was not intended to have an ongoing effect.

1. Osborn J made the point that if condition 1 was spent upon the completion of the development the physical context in which the building works were permitted could be radically altered immediately after they were completed.[6] He quoted with approval the comments of the Tribunal in the decision being appealed against:

It is quite common for conditions to regulate matters on a development site such as fences, landscaping, trees and the like which viewed in themselves and in the absence of the permitted development could be erected, demolished, altered or enlarged 'as of right'. Once one accepts as Cope's case requires that one must, that these conditions are not 'spent' on completion of the development, they operate as an indefinite constraint on what could otherwise be dealt with 'as of right' under the relevant Scheme. To hold otherwise would entail the view that items such as landscaping and so forth can be immediately reversed or demolished forthwith upon completion of the development a view of things which would reduce the planning permit process whether at the Responsible Authority level or the Tribunal level to a solemn farce.[7]

1. It is also relevant to refer to what Osborn J had to say about condition 2 as well. Although there is no directly similar condition in the subject permit to condition 2 in the Benedetti permit, nevertheless the Court was called upon to consider the submission that condition 2 could not regulate development otherwise permitted by the planning scheme. A similar situation arises in the present case where the buildings and works now proposed (and which in fact have been carried out) do not require a planning permit under the current planning controls. On this issue, Osborn J said:

[66] It is submitted on behalf of the appellant that Condition 2 cannot impose a greater degree of land use regulation than does the planning scheme control itself.[8] I do not accept this is so for reasons which also apply to Condition 1.

(a) The power to impose conditions is found in the Act and not in the planning scheme control.

(b) The Act imposes specific limitations upon inconsistency of conditions with specified controls such as regulations made under the Building Control Act 1993 but it does not so specify with respect to provisions concerning as of right development under a planning scheme.

(c) Planning schemes may impose cumulative controls. The fact that the primary zone controls do not constrain development does not preclude a more specific control in the form of a development overlay which does regulate development. The fact that some form of development does not require a permit under the overlay does not preclude further incidental regulation of such form of development pursuant to the conditions of a permit provided those conditions are otherwise valid in the sense I have already stated.

(d) The constraint imposed by Conditions 1 and 2 is voluntarily assumed by the landowner if, but only if, the landowner takes the benefit of the permit. A landowner may accept the condition or benefit of a permit or decline it. The permit conveys a form of net benefit and incidentally imposes a limitation. Thus the Tribunal was correct to observe:

"The effect of Condition 2 is to permit a development which could not be carried out as of right viz. No. 8 Angler Parade in its existing form subject to a conditional prohibition on any further development, even if that development could otherwise have been carried out as of right.

The permit must be read as a whole. It allows a substantial development on No. 8 but conditionally prohibits further development."[9]

In Lloyd v Robinson[10] Kitto, Menzies and Owen JJ said:

"If the Board has performed its statutory duty by giving approval to the subdivision subject only to conditions imposed in good faith and not with a view of achieving ends or objects extraneous to the purposes for which the discretion exists, the inescapable effect of the Act is that the landowner must decide for himself whether the right to subdivide will be bought too dearly at the price of complying with the conditions."[11] (Emphasis added)

(e) Permit conditions often regulate matters such as the preservation of landscaping and fences which are not the subject of direct planning control. In so doing, they enable resolution of urban design issues at a higher degree of detail than the planning scheme provisions would otherwise allow. In turn such conditions by better defining the terms of consent, facilitate outcomes which are potentially in the interest of the permit applicant, the responsible authority, persons directly affected by the proposed development and the public generally. The utility of such outcomes supports a broad construction of the power.

1. These reasons in Benedetti draw no distinction between conditions 1 and 2. We find that the same principles are applicable to the subject matter of condition 2 of the subject permit.
2. The applicant sought to draw a distinction between the situation in Benedetti, where similar controls continued to apply to the controls which gave rise to the need for a permit initially, and the present situation where the subsequent subdivision changed the planning status of the subject land at No. 43A Pleasant Street.
3. We are not persuaded that condition 2 of the subject permit ceases to have effect simply because the land has been subdivided. If No. 43A was a vacant lot, a new dwelling could be constructed on land without the need for a planning permit. Buildings and works of the type now in contention could, in those circumstances, be undertaken without the need for a planning permit. Indeed, the present dwelling on the lot could be demolished and a new dwelling constructed without the need for a permit. But the point of Benedetti is that when the existing building was constructed it required a permit. The permit contained condition 2, which provides that the development as shown on the endorsed plans must not be altered without the written consent of the responsible authority. The applicant has taken the benefit of this permit. Having done so, condition 2 will continue to have effect while the development allowed by the permit is maintained. This means that matters such as fences, landscaping and other elements of the development shown on the endorsed plans may not be changed without the consent of the responsible authority[12] even though they may not otherwise require a permit under the planning scheme.
4. The applicant's submissions that it would be an unreasonable and unfair proposition to expect the landholder to continue the burden of carrying out the requirements of planning permit conditions in a predicament where the planning scheme precludes a requirement for a planning permit for the use and development of the land for a dwelling on a site over 300 square metres, is not relevant. The Supreme Court in Benedetti has set out the law applicable to the ongoing validity of permit conditions such as condition 2. The Tribunal is bound by decisions of the Supreme Court and is therefore obliged to apply the principles set out in Benedetti.
5. Accordingly, our response to the question of law raised by the applicant is that planning consent is required for buildings and works which depart from the buildings and works shown on the plans currently endorsed under planning permit MPS2008/829.

[1] [2005] VSC 434

[2] The addresses of the two dwellings are 43A Pleasant Street and 43B Pleasant Street, Pascoe Vale.

[3] As the Tribunal observed in the present case with respect to a contention not pursued before this Court that the condition should be read as applicable only to amendments to the endorsed plans. "Had that been the meaning of the condition it would have been easy enough for whoever drafted it to direct the restriction to amendments to endorsed plans, however, the condition directs itself to 'the layout of the site and the size of the proposed buildings' as depicted on the endorsed plans." Benedetti v Moonee Valley City Council [2005] VCAT 2227 (2 August 2005) at [23]

[4] Condition 5 provides: "The materials, colours, decoration and/or finishes to be applied to the exterior of the buildings or works as described on the drawings or schedules endorsed to accompany this permit shall not be altered without the consent of the responsible authority."

[5] Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works [1972] VicRp 93; [1972] VR 781 at 796-797 per Pape J.

[6] [2005] VSC 434 at [36]

[7] Benedetti v Moonee Valley CC [2005] VCAT 2227 at [29]. The reference to Cope's case is a reference to the decision of the Tribunal in Cope v Hobsons Bay City Council (2004) 19 VPR 96.

[8] Ground 4 of the Notice of Appeal is: "The decision of the Tribunal should be set aside as the Tribunal determined that Condition 2 was valid where it wholly prohibited any use or development under the scheme (subject to conditional permission) contrary to the development of the land otherwise available as of right under the scheme."

[10] [1962] HCA 36; (1962) 107 CLR 142

[12] Or, in the present case because this is an application to amend the permit under section 87A of the Act, the Tribunal.