Ms Louise Hicks of counsel, instructed by Novatsis and Alexander

Both proceedings involve planning permit No D/309/2016 issued on 23 December 2016 for land at 111 Royal Parade, Reservoir Vic 3073. The permit allows:

A medium density housing development comprised of the construction of a two (2) storey dwelling to the side of the existing dwelling, in accordance with the endorsed plans.

Application P764/2018 - application under section 149B of the Planning and Environment Act 1987 for declarations.

Application P769/2018 - application under section 87 of the Planning and Environment Act 1987 to amend a permit.

111 Royal Parade, Reservoir is an irregular, triangular allotment of land located on the north side of Royal Parade, Reservoir. At the time the permit was issued, it was occupied by an existing weatherboard dwelling. The permit allowed development of an additional two storey dwelling plus attached ancillary garage and landscaping. The overall size of the allotment was 578m2.

A subsequent permit for a two lot subdivision was issued and the land has been subdivided into two lots. Lot 1 on PS 808469R contains the existing dwelling. It is now known as 111 Royal Parade, Reservoir and is owned by the applicants, Samuel Alexander Cross and Lucy Elizabeth Buckeridge.

Lot 2 on PS 808469R is now known as 113 Royal Parade, Reservoir and is owned by the respondent, HighBuild Pty Ltd.

1. These proceedings have been brought by the applicants, Lucy Buckeridge and Sam Cross, pursuant to section 87 of the Planning and Environment Act 1987 to amend planning permit D/309/2016 (the permit) and section 149B of the Planning and Environment Act 1987 for declarations in respect of the effect of the two lot plan of subdivision on the permit.
2. The respondent, HighBuild Pty Ltd (HighBuild), applied for and was granted the permit in 2016 for construction of a two storey dwelling beside the existing dwelling on the land.
3. The circumstances giving rise to these proceedings relate to the fact that the endorsed plans under the permit do not show two existing habitable room windows on the north-east side of the existing dwelling located 1 metre away from the two storey wall on the boundary of the new dwelling. The applicants say that the failure to show the two habitable room windows on the plans endorsed under the permit constitutes a material misstatement or concealment of fact in relation to the application for the permit or a material mistake in relation to the grant of the permit, which are grounds for amending the permit under section 87(1) of the Act.
4. The applicants also complain that the eaves of the new dwelling overhang their land because of the wall being built on the boundary.
5. They seek to have the permit amended to show the existing windows on the endorsed plans and to set back the wall of the new dwelling from the boundary.

1. Application P769/2018 was originally made to cancel the permit. The applicants now seek to amend the permit as follows:
   1. The plans endorsed under the permit be deleted.
   2. Further sub-conditions (g) and (h) be added to permit condition 1, to read:

(g) The addition of three north-east facing windows - one to each bedroom and one to the bathroom - in the existing dwelling at 111 Royal Parade, in accordance with existing conditions.

(h) The south-west boundary wall of the new dwelling set back a minimum of 2.2m from the boundary.

1. At the commencement of the hearing, the responsible authority submitted that if the application to amend the permit is successful, a further amendment would be required to condition 1, which is currently expressed as requiring amended plans to be submitted "Before the development starts" to reflect the fact that the development has already commenced.

1. The applicants seek the following declarations:
   • Planning permit D/309/2016 cannot have been lawfully acted on at any time after the registration of PS808469R on 12 August 2017; or
   • In the alternative, that the development allowed by planning permit D/309/2016 cannot be lawfully undertaken on what is now Lot 2 of PS808469R at any time after the registration of PS808469R on 12 August 2017.

1. The two bedrooms in the existing dwelling on the subject land each contain two existing windows. There is a window in each bedroom facing north east. There is also a second window in each bedroom. In the front bedroom this faces south east. It faces Royal Parade and is located under the front verandah of the dwelling. The second window in the rear bedroom faces north west.
2. Appendix A shows the existing conditions regarding the bedroom windows and their relationship to the wall on the title boundary of the second dwelling[1].
3. The plans that were submitted to the responsible authority with the permit application did not show the existing windows facing north east to the two bedrooms or the bathroom. Appendix B represents the ground floor plan of the permit application plans that was publicly advertised and which was considered by the responsible authority when it determined to grant the permit.
4. It is quite clear from this plan that there are no windows facing north east in either of the bedrooms or the bathroom.
5. There was no separate existing conditions plan submitted with the permit application. However, there was included in the neighbourhood and site description notes accompanying the application some photographs of the existing conditions, one of which shows one of the existing bedroom windows. There is no explicit reference in any of the material to the fact that the existing bedroom and bathroom windows will need to be removed in order to reflect the permit application plans.
6. In the council officer's assessment of the application there was no specific reference to the removal of existing windows in the existing dwelling. The assessment is based on the plans accompanying the application, which show no windows facing the second dwelling. The officer's clause 55 compliance summary notes as follows with respect to north facing windows:

There are no north-facing windows within 3.0 metres of the common boundary with the subject site.

1. With respect to daylight to existing windows, which would include the existing bedroom windows that will remain in situ, the clause 55 compliance summary states as follows:

Sufficient setbacks exist to allow adequate daylight

1. A Notice of Decision to Grant a Permit was issued on 21 November 2016. The permit was issued on 23 December 2016.
2. On 24 January 2017, a contract of sale for the existing weatherboard dwelling to the applicants was signed. The contract of sale included special conditions, a copy of the ground floor plan of the development plans, planning permit, plan of proposed subdivision (HighBuild was waiting for the council to approve the plan of subdivision at this point in time), and section 173 agreement. The floor plan shows no windows along the north-east side of the two bedrooms or bathroom. It shows the proposed garage wall for the new dwelling on the boundary between lots 1 and 2.
3. On 23 February 2017, the applicants took possession of the existing dwelling under a licence agreement with HighBuild.
4. A section 173 agreement was registered on title to the subject land on 8 June 2017. The plan of subdivision was registered and new titles issued for lots 1 and 2, each of which included the section 173 agreement, on 12 August 2017. On 31 August 2017, there was settlement of the contract of sale for lot 1, now being 111 Royal Parade, Reservoir, to the applicants.
5. Plans were endorsed under the permit in February 2017 and were amended in May 2017. However, with respect to the windows in the existing dwelling there was no change.
6. On 4 January 2018, construction of the wall on the boundary between lots 1 and 2 (111 and 113 Royal Parade) commenced.
7. In February 2018, the applicants became concerned about the height of the wall being constructed on the boundary, its effect on light into their bedroom and the eaves projecting over their property. They had various communications with the council regarding what they considered to be a breach of the permit.
8. On 22 February 2018, council issued HighBuild with a breach to planning permit notice for failure to develop in accordance with the endorsed plans at 111 and 113 Royal Parade, Reservoir. The notice states as follows:

It has been brought to the attention of Council that the subject land, 111 and 113 Royal Pde, Reservoir has not been developed in accordance with the Endorsed Plans.

The Endorsed Plans which form Planning Permit D/309/2016/A depict the existing home (now known as 111 Royal Pde) without windows on the north east elevation. It has been confirmed that 111 Royal Pde has been sold and the -pre-existing windows on the north east elevation have not been removed. Despite this, the development of the adjoining lot (now known as 113 Royal Pde) has continued. At present, the south west facing garage wall of the new dwelling is one metre from two habitable room windows at the existing home.

Additionally, the Endorsed Ground Floor, First Floor and Landscape Plans depict the existing home without eaves on the north-east side of the dwelling. It is apparent that these eaves have not been removed.

1. Several other breaches were also identified. The notice provided HighBuild with two options:
   1. Develop the land (both dwellings) in accordance with the Endorsed Plans.
   2. Within 28 days, lodge an application to amend your Planning Permit.
2. HighBuild has lodged an application to amend the permit to show retention of the existing windows as depicted in Appendix A. Construction of the new dwelling by HighBuild has recommenced and the new dwelling is nearing completion.
3. The applicants issued these proceedings on 27 April 2018.
4. At a practice day hearing on 4 May 2018, I refused to make a stop order pursuant to section 93 of the Planning and Environment Act 1987 in respect of the application to cancel or amend the permit.

1. An application to cancel or amend a permit under Part IV Division 3 of the Planning and Environment Act 1987 can only be made by certain specified persons and on certain ground as set out in section 87. The Tribunal's discretion to cancel or amend a permit is subject to a number of constraints as to timing - section 88 and section 89(3). In exercising its discretion, the Tribunal must take into account the matters set out in section 84B(2) as if the request were an application for review - section 90A. However, the need for the Tribunal to be satisfied about matters set out in section 91(3), in particular section 91(3)(c) that it would be just and fair in the circumstances to do so, are not relevant because they only apply to an application under section 89 and this is an application under section 87.
2. I will now consider application P769/2018 in light of these provisions.

1. Section 87(3) provides that:

(3) The Tribunal may cancel or amend a permit at the request of -

(b) any person under section 89; or

(d) the owner or occupier of the land concerned; or

(e) any person who is entitled to use or develop the land concerned.

1. The applicants are not persons under section 89 of the Act because at the time the permit application was made they were not persons who objected or would have been entitled to object to the issue of the permit.
2. Nevertheless, whilst they were not the owner or occupier of the land concerned at the time the permit application was made, they are now the owner and occupier of part of the land concerned. Accordingly, I find that they are entitled to make an application as the owner or occupier of the land concerned pursuant to section 87(3)(d) of the Act.

Are there grounds for amendment of the permit?

1. Section 87(1) provides that:
   1. What are the grounds for cancellation or amendment of permits?

(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).

1. The applicants rely upon sub-sections (a) - a material misstatement or concealment of fact in relation to the application for the permit - and (c) - any material mistake in relation to the grant of the permit.
2. They also rely upon sub-sections (b) - any substantial failure to comply with the conditions of the permit - and (d) - any material change of circumstances which has occurred since the grant of the permit. However, these grounds under (b) and (d) depend upon the Tribunal making declarations in application P764/2018. For the reasons set out in connection with this application, I have refused to make the declarations sought. Consequently, I will not further consider grounds under sub-sections 87(1)(b) or (d) in the context of application P769/2018. Rather, I will focus on sub-sections 87(1)(a) and (c).

1. Underpinning the grounds, which the applicants rely upon, is the fact that the plans submitted with the permit application depicted blank walls along the entire north-east elevation of the existing dwelling.
2. It is not in dispute that:
   • The plans submitted with the application do not depict what are in fact the existing conditions, both now and at the time the application was made. Those existing conditions are that each of the two bedrooms in the existing dwelling had, and still have, a north-east facing window at 1 metre distance from the boundary where the permit allows the construction of a new 6.4 metre high solid brick wall with overhanging eaves.
   • The council assessed the permit application on the understanding that there would be no habitable room windows facing that wall.
3. The applicants submit that the omission of the windows in the application plans was a material misstatement of fact in relation to the application for the permit because it misstated the existing conditions of the existing dwelling. Further, the misstatement of existing conditions resulted in a material mistake in relation to the grant of the permit because the council assessed the application and granted a permit on the incorrect understanding that there would be no habitable room windows facing the new wall, and therefore without undertaking the assessment that it was required to make in respect of amenity impacts to the existing dwelling.
4. The council takes the view that the permit application ought to be construed as an application that included works to fill in the existing windows, and that the council's assessment of the application ought to be construed as an assessment made on the understanding that those windows will be filled in and that to do so was an appropriate outcome.
5. However, the applicants submit that because there is nothing in the permit application documents that mentions any proposed works of any kind to the existing dwelling, there no basis upon which the council officer assessing the application could possibly have construed the application as being an application which included works to fill in the existing windows.

1. I am not satisfied that the applicants have established there are grounds to amend the permit on the basis of a material misstatement or concealment of fact in relation to the application for the permit or any material mistake in relation to the grant of the permit for the following reasons.
2. At the time the permit application was made, HighBuild was the owner of the whole site. Even though there were existing windows in the north-east wall of the existing dwelling, it would have been open to HighBuild to remove those windows at any stage without requiring a planning permit to do so. It was open to HighBuild to remove those windows because each bedroom had alternative windows as a source of daylight, which were in fact assessed by the council officer as meeting both the standard and objective for B19 in clause 55.04-3.
3. The council's assessment of the north-facing windows objective B20 in clause 55.04-4 was correct in terms of it not applying because there were no north facing habitable room windows shown on the plans that would remain existing. If those windows had been shown to remain existing, then standard B20 could not have been met.
4. Thus, it was not unreasonable for HighBuild to propose removal of the north facing habitable room windows from the bedrooms in order to ensure compliance with standard B20 in circumstances where compliance with standard B19 could be met by means of daylight from the existing bedroom windows to be retained facing north-west and south-east respectively.
5. I find that the application plans show exactly what was intended, which was that there were to be no windows facing north-east in either of the two bedrooms or the bathroom.
6. There is no requirement in the Act, regulations or planning scheme that mandates an existing conditions plan of all development on the land to accompany a permit application. An application must be accompanied by a neighbourhood and site description, and a design response pursuant to clause 55.01. The application contained a neighbourhood and site description that the council assessed to be satisfactory. It included photographs of the existing dwelling, including one showing one of the bedroom windows in contention. However, it is not a requirement of clause 55.01-1 to include an existing conditions plan of all aspects of existing buildings on the site. It is enough to show the location of existing buildings on the site, which was done in this case.
7. As events have transpired, it may have been desirable if a notation had been made on the plans that existing windows were to be removed. But, in the circumstances, I do not consider there was any obligation on HighBuild, as the permit applicant, to provide a plan of existing conditions showing existing windows that were intended to be removed. I do not consider that what was shown on the plans constituted a misstatement or concealment of fact. Even if it could be construed that there was a misstatement of fact relating to the fact that there was no notation on the plans that existing windows were to be removed, I do not consider it was a material misstatement in terms that its omission or inclusion would have made any difference to the responsible authority's assessment or its decision to grant a permit. Nor would it have had any effect on the interests of potential third party objectors, given the siting of the existing dwelling and the existing windows, and Highbuild's ownership at the time of the whole of the land comprising 111 Royal Parade.
8. I therefore find that there was no material misstatement or concealment of fact in relation to the application for the permit within the meaning of section 87(1)(a).
9. The plans accompanying the permit application, which showed no north-east facing windows in the existing dwelling, were the plans intended to be relied upon in the grant of a permit. They were the plans assessed by the council. The council did not assess the application on an incorrect understanding that there would be no north-east facing habitable room windows. This understanding was correct because the windows were intended to be removed. I find that there was no material mistake in relation to the council's assessment of these plans. Therefore, I find there has not been any ground made out under section 87(1)(c) in terms of a material mistake in relation to the grant of the permit
10. Any failure by HighBuild to communicate adequately with the applicants about the need to fill in or remove the existing windows in order to comply with the permit and the endorsed plans does not affect my findings regarding the grant of the permit. The applicants purchased their land subsequent to the grant of the permit and in knowledge of it.
11. HighBuild provided the applicants with a copy of the permit and the ground floor plan, which does not show any north-east facing windows in the bedrooms or bathroom of the existing dwelling. The applicants say that the quality of reproduction of the plan provided to them makes the plan difficult to read in this respect and the plan they were provided with is not as clear as the endorsed plans under the permit are.
12. I agree that the quality of the plan provided to the applicants is not as clear as the actual endorsed plan, but nevertheless, to a trained eye, it would still have been apparent that there were no existing windows shown in the two bedrooms or the bathroom.
13. The problem is that the applicants were not as diligent has they should have been in their investigation of what was proposed to be constructed under the permit.
14. Ms Buckeridge made an inquiry with the council before signing the contract, but was told by the council officer that the plans under the permit were not available to view "at that time". Indeed, the plans were not endorsed under the permit until after the Contract of Sale was entered. The applicants were provided with a copy of the permit before entering the contract and it is important to note that the permit is expressed to be "in accordance with the endorsed plans". In my view, a prudent purchaser would have taken steps to view the endorsed plans when they become available. However, the applicants did not take any further steps to acquaint themselves with the details of the endorsed plans until after they settled the contract of sale and construction of the second dwelling was well advanced. Rather, they made a series of assumptions about what they imagined the effect of the new development would be upon their existing dwelling. As it has turned out, those assumptions were wrong because they misinterpreted the plan they were provided with at the time of entering the Contract of Sale and they took no further steps to acquaint themselves with the details of the full set of plans endorsed under the permit.
15. I also note that when Lot 1 of Plan of Subdivision 808469R was transferred to the applicants, it was subject to a section 173 agreement. Relevantly, the agreement provides that except with council's prior written consent, the owner may only develop the subject land in accordance with the development permit[2]; and must not, upon completing the development in accordance with the development permit, alter or extend or otherwise change the development.
16. This section 173 agreement binds the applicants just as much as HighBuild. Under its terms, they must comply with the development permit unless it is amended. This includes compliance with the endorsed plans, which do not include the existing windows.
17. The applicants' obligations under the section 173 agreement, which attaches to the land, is another reason why prudent purchasers would have familiarised themselves with the permit as a whole, including the endorsed plans, before completing the purchase.
18. It therefore follows that I am not satisfied there are any grounds under section 87(1)(a) or (c) for cancelling or amending the permit with respect to the windows.
19. I have not dealt with the applicants' concerns regarding eaves from the second dwelling overhanging the boundary of their property. The eaves have always been shown on the endorsed plans as being where they have been built. Again, the failure of the applicants to appreciate this fact is a consequence of their failure to properly acquaint themselves with the details of the endorsed plans prior to completing their purchase of Lot 1. I am also satisfied that this situation falls within the ambit of section 12(2) of the Subdivision Act 1988. Relevantly, this provides as follows:
    1. Plan must show easements and other rights

(iv) any land on a plan if the plan specifies that this subsection applies to the land;

(b) for the benefit of each lot and any common property -

if the easement or right is necessary for the reasonable use and enjoyment of the lot or the common property and is consistent with the reasonable use and enjoyment of the other lots and the common property.

Section 12(2) of the Subdivision Act 1988 applies to all the land in this plan.

1. There were various arguments put by the applicants that it would be futile for HighBuild to attempt to construct the second dwelling with eaves overhanging their land because they will never consent to access being given for this purpose.
2. I do not need to rule upon their submissions on this point. Issues relating to overhanging eaves and the operation of section 12(2) of the Subdivision Act 1988 may eventually need to be determined, but not in the context of this particular proceeding relating to amendment of the permit.

Has the request been made as soon as practicable?

1. Section 89(3) of the Act provides as follows:
   1. Request for cancellation or amendment

(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.

1. Both the council and HighBuild argued that the applicants had not made their requests as soon as practicable after they had notice of the facts relied upon in support of their request and I ought to refuse to consider the request under section 89(3).
2. Section 89(3) is discretionary. In the circumstances of this case, I decline to exercise any discretion under section 89(3). I consider it is preferable to consider the request on its merits, which I have done. In doing so, I have found that there are no grounds under section 87(1) to justify amendment of the permit. Therefore, further consideration of section 89(3) is not required.

1. Section 90A provides as follows with respect to an application to cancel or amend a permit:

90A Matters which Tribunal must take into account

(1) In determining a request, the Tribunal must take into account the matters set out in section 84B(2) as if the request were an application for review.

(2) The matters set out in section 84B(2) are in addition to any other matters which the Tribunal can properly take account of or have regard to or is required to take account of or have regard to in determining a request.

1. I interpret this as requiring the Tribunal to consider the overall merits or appropriateness of the permit in the context of the matters set out in section 84B(2) when exercising its discretion whether to cancel or amend a permit. These include the planning scheme[3] and the objectives of planning in Victoria[4].
2. Having considered the matters set out in section 84B(2), it is my view that the permit can be supported on its merits under the planning scheme for the reasons set out in the planning officer's report dated 21 November 2016. I consider that the proposed amendment to set back the south-west wall of the new dwelling 2.2m from the boundary would not deliver a good planning outcome in the overall context of the planning scheme's policies and objectives. The setback would require substantial demolition of the new dwelling and significant modification to its layout, size and use of the land comprising lot 2. These changes would result in a less efficient and productive use of land in an area where modest infill medium density residential development is encouraged.
3. I have also had regard to section 84B(2)(h), which provides that in determining an application for review, the Tribunal:

(h) must (where appropriate) have regard to any agreement made pursuant to section 173 affecting the land the subject of the application for review;

1. The section 173 agreement was required as a condition of the permit for the two lot plan of subdivision. It currently applies to both lots created by the subdivision.
2. In considering this proceeding to amend the permit as though it were an application for review, I am required to have regard to the section 173 agreement affecting the land. As previously noted, the agreement provides that except with council's prior written consent, the owner may only develop the subject land in accordance with the development permit[5]. It binds both the applicants and HighBuild because each are owners of land to which the agreement applies. The applicants have bought their land subject to this agreement and consequently they are subject to the permit and its endorsed plans. Whilst the applicants may not have fully appreciated what those endorsed plans entailed, they are nevertheless bound by them unless the council consents to their amendment. There is currently an application by HighBuild to amend the plans under the permit. However, that is a separate proceeding to this application. So far as this application is concerned, the existence of the section 173 agreement supports retention of the permit in its current form.

1. For the reasons I have given, I am not satisfied that the applicants have established grounds under section 87(1) to justify amendment of the permit. Nor do I consider that the proposed amendment could be supported on its merits even if grounds were made out.
2. The applicants have made it clear that they do not wish to have the existing windows in their bedrooms and bathroom removed as shown in the endorsed plans under the permit. Nevertheless, they have objected to the application by HighBuild under section 72 of the Act to amend the permit by amending the endorsed plans to show retention of the existing windows.
3. In light of my decision not to amend the permit as requested and not to require the south-west boundary wall of the new dwelling to be set back a minimum of 2.2 metres from the boundary, the applicants will now need to consider their options. The new dwelling on Lot 2 will be completed in accordance with the endorsed plans, which includes a two storey wall on the boundary. A separate decision will need to be made by the responsible authority about whether to amend the permit as applied for by HighBuild. This may or may not result in a further proceeding before this Tribunal to review the responsible authority's decision. However, that is a matter for the future and I should not attempt to pre-empt the outcome of this section 72 application to amend the permit in the context of this application, which has been made under section 87.

1. The applicants seek declarations under section 149B of the Act upon the following basis:

• the existing dwelling located upon what is now Lot 1; and
• the second dwelling to be constructed principally upon what is now Lot 2 but with eaves projecting over the boundary on what is now Lot 1.

The officer report and approval documentation clearly relate to the entirety of the subject land (now comprised of Lots 1 and 2), which at that time:

• was a single lot on title;
• had the street address 111 Royal Parade, Reservoir; and
• contained both an existing dwelling and the location of the proposed second dwelling.

The respondent did not act on the permit and complete construction of the proposed second dwelling before registering the subdivision.

The respondent's voluntary action in registering the subdivision and extinguishing the title for the subject land had the effect that:

• the underlying land to which the permit relates no longer exists as a planning unit; and
• the permit did not, as a matter of law, 'transfer' to either of the newly created lots; or
• in the alternative, if the permit does relate to land that now exists as a planning unit, that land is confined to Lot 1 (being the only land now fitting the description in the permit of '111 Royal Parade, Reservoir Vic 3073').

In either event, as a consequence of the registration of the subdivision it is not possible to construct a dwelling on Lot 2 in compliance with the permit.

1. The applicants rely upon the same principle that they say was set out and applied by the Tribunal in the decisions of Brewster v South Gippsland SC[6], Kerrchris v South Gippsland SC[7] and Jefferis v South Gippsland SC[8].
2. In my view, I do not consider that these cases establish a general principle that if a permit is granted for development of land and the land is then subdivided before the development allowed by the permit is completed, this automatically means that the development allowed under the permit can no longer proceed because the underlying land to which the permit relates no longer exists as a planning unit. Rather, I consider that each case must be considered on its own facts and circumstances.
3. In the case of Brewster, a permit for a dwelling was issued for Crown Allotment 19C Parish of Koorooman. It was then proposed to resubdivide Crown Allotment 19C and Crown Allotment 19D into two differently configured lots. The Tribunal's decision in Brewster was that the permit for a dwelling on Crown Allotment 19C would not automatically transfer to one of the newly created lots. This is because Crown Allotment 19C for which the permit was granted would no longer exist and it would not be possible to construct the dwelling on a lot of the particular size, configuration and characteristics of Crown Allotment 19C once the subdivision occurred.
4. The facts in Brewster are distinguishable from the current situation where the permit was granted for the whole of the land at 111 Royal Parade, and where the subdivision that has occurred is subdivision of this land only and takes account of the development allowed by the permit. The subdivision does not include additional land as was the case in Brewster.
5. Similar circumstances to Brewster occurred in Kerrchris, although the facts there were far more complicated. However, like Brewster, essentially the land for which a permit (permit 2) for a dwelling was issued was specifically defined as being CA48A. A subdivision of land including CA48A plus other land occurred so that CA48A no longer existed as a separate entity. The Tribunal held that following the extinguishment of CA48A by registration of the plan of subdivision, the permit for a dwelling on CA48A could no longer be acted upon. The Tribunal held that because CA48A no longer existed as a planning unit, it was not possible to construct a dwelling on this parcel of land in compliance with the permit. The only way in which a dwelling could be constructed was if the permit was amended or a new permit was granted.[9] Like Brewster, the subdivision involved more land than just CA48A.
6. Finally, in Jefferis the land for which a permit for a dwelling was issued was described as Lot 1 of TP229820V. At the time the permit was issued Lot 1 of TP229820V comprised around 1.6 hectares of land in two parts (an eastern and western part) which were separated by a public road. Subsequent to the permit being issued, the applicant in Jefferis successfully applied to the Registrar of Titles for the land to be split into two separate land titles. This was able to occur under particular legislative provisions which allow for land in one title to be divided into separate land titles without any subdivision permit being issued in certain circumstances.
7. The new land titles continued to use the same Title Plan 229820V to describe the land to which they related. Lot 1 of TP229820V was the western part of the original site and Lot 2 of TP229820V was the eastern part of the original site.
8. The applicant in Jefferis applied to amend the permit so that it only related to Lot 2 on TP229820V. The issues were whether the land to which the permit relates had been mistakenly described in the permit, and, if not, whether it was appropriate to amend the land to which the permit relates. The Tribunal held that the land had not been mistakenly described in the permit and that it was the whole of the land to which the permit applied. It also refused to amend the permit so that it now applied to the smaller part of the land comprised of Lot 2 of TP229820V. This decision was based on the planning merits of the proposal. The Tribunal found that it was not appropriate to reduce the size of the land that could be used for a dwelling because it would be contrary to the purpose of the Farming Zone and was something that the policies of the scheme sought to avoid[10].
9. Whilst the total subdivision that occurred in Jefferis was different to that which occurred in Brewster and Kerrchris, the common principle in each of these cases is that interpretation of a permit, which allows development, will depend upon the facts and circumstances of each case to decide:
   • what the planning unit for which the development allowed by the permit was intended to be; and
   • whether any subsequent subdivision has destroyed that planning unit and resulted in a situation where the development allowed by the permit cannot be carried out in accordance with the permit.
10. The common factor in Brewster, Kerrchris and Jefferis was that subsequent subdivision[11] had resulted in the planning unit on which the development was intended to occur being obliterated so that it was no longer possible to undertake the development in accordance with the permit.

Can the permit in the present case still be complied with?

1. The situation is different in the present case. The development permit in question allows construction of a two storey dwelling to the side of the existing dwelling in accordance with the endorsed plans. The subsequent subdivision created a separate lot for the new dwelling and one for the existing dwelling. However, the creation of a new lot for the new dwelling did not prevent construction of the new dwelling in accordance with the planning permit. The planning unit intended to be occupied by the new dwelling under the endorsed plans of the permit and the planning unit intended to be occupied by the existing dwelling accord with the two lots created by the subdivision. There is no disparity between the land for which the permit for development was granted and the land that was subdivided, unlike the situations in Brewster, Kerrchris and Jefferis.
2. It is not uncommon for a permit to be issued for development, which clearly contemplates future subdivision to create separate lots for the dwellings or other buildings permitted by the development permit. Nor is it uncommon for the land to be subdivided before the development is completed. To make a finding that in such circumstances the subdivision means that the development cannot proceed because the underlying land to which the development permit relates no longer exists as a planning unit would throw the development industry and accepted development practices into chaos.
3. In every case, the question will be whether the subdivision involving the creation of separate lots and separate certificates of title affects the ability for the development to proceed in accordance with the permissions granted by the permit and the conditions of the permit. If the subdivision does not affect the ability to undertake the development in accordance with the permit, then the development under the permit may proceed in accordance with the provisions of the permit notwithstanding the subdivision. However, if the subdivision affects the ability to undertake the development allowed by the permit or the ability to comply with conditions of the permit, as was the case in Brewster, Kerrchris and Jefferis, then the situation may well be that development under the permit cannot proceed. Because development cannot be undertaken in compliance with the permit, it would require an amendment to the permit or a new permit before the development could proceed.
4. However, that is not the situation in the present case. In the present case, the development may proceed in accordance with the conditions in the permit notwithstanding the subdivision.
5. Accordingly, I will not make the declarations sought by the applicants.

[1] This plan forms part of an application under section 72 of the Planning and Environment Act 1987, which has been lodged by HighBuild to amend the endorsed plans under the permit to reflect the existing conditions.

The plan also shows a window to the bathroom facing north east. This window is not shown on the endorsed plans under the permit either, but it is proposed to be retained in the amendment to the permit now being sought by HighBuild.

[2] Development permit means planning permit No D/309/2016, as amended from time to time, issued on 23 December 2016, authorising the development of the subject land in accordance with plans endorsed by council.

[3] Section 84B(2)(a)

[4] Section 84B(2)(b)

[5] Development permit means planning permit No D/309/2016, as amended from time to time, issued on 23 December 2016, authorising the development of the subject land in accordance with plans endorsed by council.

[6] [2009] VCAT 2113

[7] [2011] VCAT 688

[8] [2017] VCAT 1428

[9] [2011] VCAT 688 at [37]

[10] [2017] VCAT 1427 at [40]

[11] or effective subdivision, in the case of Jefferis,