Victorian Civil and Administrative Tribunal|2012-12-20

For the reasons above, I have reached the conclusion that the permit for subdivision of the subject land expired on 23 March 2009 since a new plan of subdivision was not certified within two years of the date of the amended permit. Alternatively, the permit expired since the subdivision was not completed within two years of the date of its commencement. This accords with submissions made on behalf of the objector applicant and I regard it as the correct and preferable decision on the facts before me.
I accept that the outcome I have reached will be challenging for the land owner and purchasers of any lots, especially in circumstances where the developer had liaised with the responsible authority and obtained confirmation from it that the subdivision was current and lawful. I have therefore made express allowance for 'fresh' permission for the subdivision to be sought by the developer and the remedial orders are intended to only take effect once the outcome of that process is known.

[1] Relative to planning permit No. P02/1197 issued at the direction of the Tribunal and subsequently amended at the direction of the Tribunal.

[2] Mr Scally's submission refers to some fill being placed on the land in January 2012 with more substantial works from July 2012 onwards. He advised that at the date of this hearing the filling works were 80% complete and the drainage works were 30% complete. Sewage had been fully installed.

[3] Its application for interim enforcement order was subsequently withdrawn and provision has been made for an enforcement order to be considered at a later date.

[4] Referencing paragraphs 72-81 of Mr Galvin's submission on his behalf.

[5] Brimin Gem Pty Ltd v Mornington Peninsula SC [2003] VCAT 1189.

[6] Brimin Gem Pty Ltd v Mornington Peninsula SC [2007] VCAT 435.

[7] Although it is not consequential on the facts before me, I would regard the logical expiry date on this analysis as 26 June 2011 since the re-certification could not have operated to extend the date for completion under the legislation. It is clear from section 11 of the Subdivision Act 1988 that the act of re-certification of a plan of subdivision does not operate to extend the five year currency of the plan of subdivision under the Subdivision Act 1988

[9] Notwithstanding the fact that the plan that was certified depicted a staged subdivision because arguably this was not strictly in accordance with the permission granted.

[10] On my reading of the legislation, sections 62 and 68 of the Planning and Environment Act 1987 further support this.

[11] For example, Harvey v Mutsaers & Manningham CC [2012] VSCA 69, a decision of Justices Nettle, Redlich and Hansen JJA.

[12] At my own initiative. I consider that the fact that I would entertain such a course of action was reasonably within the contemplation of the parties, even though the express possibility of such a declaration was not raised by me at the hearing.

[13] With the exclusion of the works addressed in the more recent application for enforcement order lodged by the council in P3313/2012. That matter is currently adjourned to an administrative mention in January 2013, with leave granted to amend the application made under section 114 of the Planning and Environment Act 1987 beforehand.

Brown v Mornington Peninsula SC & Ors [2012] VCAT 1938 (20 December 2012)

Brown v Mornington Peninsula SC & Ors [2012] VCAT 1938

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Cases Cited (1)

Brown v Mornington Peninsula SC & Ors [2012] VCAT 1938 (20 December 2012)