42
It is clear that the development authorised by the permit has been carried out. But does it follow that the permit itself is spent? We think not.
43
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).
44
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.[2] 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[3]. 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[4].
45
A case that departs from this principle was the decision of the tribunal in Bayside City Council v Sullivan[5], where an enforcement order was granted requiring an owner of a lot, created by a recent subdivision, to enter into a section 173 agreement. The permit for the subdivision was conditional upon such an agreement being entered into, but the then owner had persuaded the responsible authority to issue a statement of compliance in relation to the subdivision without the agreement being entered into. The decision in this case was clearly a just outcome; but as a matter of principle, as Mr Testro acknowledged, it goes against the grain of other cases.
46
Very recently the High Court of Australia has decided in Hillpalm Pty Ltd v Heaven's Door Pty Ltd[6] that a condition imposed upon a permit allowing the subdivision of land could not be enforced against a new owner of a lot created by the subdivision. The decision of the majority of the court did not specifically contend that the permit was "spent", but relied upon the nature of the condition in question; but the reasons of the majority are consistent with such a conclusion.[7]
47
It is not necessary to finally decide the matter in this case, but, like the President in Whelan v Baw Baw Shire Council[8], we tend to the view that once a subdivision is carried out, the permit allowing it, including any conditions, is spent. As the High Court observed in Hillpalm, if a council consent for a subdivision operates to create a continuing obligation, or a right in rem, that affects a later transferee of a lot in the subdivision, that would present 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. Our tentative view is that an obligation imposed upon a subdivider which had not found its way onto or attached to the title of a lot could not bind a new owner of the lot; as this would be inconsistent with section 42 of the Transfer of Land Act 1958.[9]
48
But when it comes to a permit authorising the construction of a building, considerations based upon the principle of indefeasibility of title are not relevant. Hence it is necessary, in such a case, to consider the nature of the permission and the form in which it was granted.[10]
49
In the present case, the permit allowed the development of the land with a building and provided that the development, as shown on endorsed plans, must not be altered without the written consent of the responsible authority. This form of permission contemplates the possibility that the development will be altered from that shown on the endorsed plans. It is arguable that the permit might be regarded as only contemplating the possibility of written consent being given if this occurred before the development commenced or, at least, before the development was completed. But common experience tells us that development is sometimes carried out in a manner different than that permitted, yet the differences are such that it is still reasonable to consent to them after the event. Why should a permit expressly allowing the possibility of consent being given for the alteration of the development be interpreted to as to exclude this reasonable possibility? Further, it is also commonplace that once development is carried out the owner may wish to effect minor changes to the development. Why should a permit expressly allowing the possibility of consent being given for the alteration of the development be interpreted so as to deny this possibility in every circumstance simply because the development has been carried out?
50
In our opinion, the decision of the tribunal in Mentone Mansions Pty Ltd v Kingston City Council[11] correctly sets out relevant principles in relation to the amendment of endorsed plans using an informal consent mechanism. Further, in our opinion, the principles outlined in that case can extend to circumstances where the permitted development has been completed.
51
Although the Mentone Mansions decision adopts a flexible approach, it acknowledges that there are significant limits upon the capacity to use an informal consent mechanism to effect changes to a development, whether the development is completed or not. First, as pointed out in Kitsone Pty Ltd v City of Doncaster and Templestowe[12] it is not possible to use a secondary consent mechanism to gain a primary planning permission. For example, if a permit has been granted for the use of land, it will not be possible to obtain a secondary consent under that permit to authorise a development of land which requires a permit. Second, it is clear from both Kitsone and from Mentone Mansions that a secondary consent cannot be used to transform the development or use for which the permit has been granted.
52
Mr Testro also contended that the wording of condition 1 did not create an opportunity for the occupier of the land to ask the responsible authority to alter the development as shown on the endorsed plans. This argument was based upon the language used in condition 1, which Mr Testro argued was really a limitation on the nature of the development which could be carried out. We do not agree with this submission. It is true that the condition limits the nature of the development to that shown on the endorsed plans. But, on a fair reading of the condition, it also allows the responsible authority to give its written consent to the development being altered from that shown on the endorsed plans. Such a reading is consistent with the practice in Victoria over the last 15 years or more. It also is a sensible practice, which introduces necessary flexibility into the planning process.
53
It may be true, as Mr Testro pointed out, that the result is a different one than would be the case if application was made under section 87 of the Act for an amendment of the permit itself. But we see no reason to introduce the limitation imposed upon that process by section 88 of the Act. Quite apart from the fact that section 88 can often unreasonably constrain the tribunal in achieving a just outcome, there is no logical reason why a permit in relation to the construction of a building could not be crafted so that some conditions of the permit continue to have some operation after the development is completed.