Couper v South Gippsland SC (includes Summary) (Red Dot) [2009] VCAT 1204

1. Pursuant to section 74 of the Victorian Civil and Administrative Tribunal Act 1998, leave is given to the applicant to withdraw the application and the application is withdrawn accordingly.

Mr Gary Chisholm, town planner, of Beveridge Williams & Co Pty Ltd

Use and development of a dwelling on a lot less than 40 hectares.

Section 82 of the Planning and Environment Act 1987

Environmental Significance Overlay (ESO5 - Areas Susceptible to Erosion)

Clause 35.07-1 (Use for dwelling on a lot less than 40 ha)

1. This case involves the interpretation of Amendment C48 to the South Gippsland Planning Scheme and what effect it may have on this application for review. Amendment C48 was a Ministerial planning scheme amendment gazetted on 29 May 2009. According to the Minister's "Reasons for decision to exercise power of intervention under section 20(4) of the Planning and Environment Act 1987"[1]:

[13] Amendment C48 to the South Gippsland Planning Scheme is an intervention that stops permits being granted for dwellings and further subdivision subject to minimum lot sizes to protect rural land in South Gippsland...

1. Changes made to the planning scheme by Amendment C48 are to amend the Schedule to Clause 52.03 (Specific Sites and Exclusions) and the Schedule to Clause 81.01 (Documents incorporated in this scheme) to include an Incorporated Document titled "Shire of South Gippsland Incorporated Document, 2009 - Rural Areas".
2. According to the explanatory report for the amendment:

The amendment prevents permits being granted for dwellings and to create a small lot for an existing dwelling in the Farming Zone.

1. Under the provisions of the Farming Zone in the South Gippsland Planning Scheme, dwelling is a section 1 (permit not required) use provided the lot is at least 40 hectares. A permit is required for use and development if this condition is not met.[2]
2. In the present case, a permit application has been made for use and development of a dwelling on a lot less than 40 hectares.

1. Clause 52.03 of the planning scheme deals with Specific Sites and Exclusions. It provides that land identified in the schedule to the clause may be used or developed in accordance with the specific controls contained in the incorporated document corresponding to that land. The specific controls may:
   • allow the land to be used or developed in a manner that would otherwise be prohibited or restricted;
   • prohibit or restrict the use or development of the land beyond the controls that may otherwise apply;
   • exclude any other control.
2. The schedule to clause 52.03 now includes all land in the Farming Zone and the incorporated document corresponding to that land is the "Shire of South Gippsland Incorporated Document, 2009 - Rural Areas". This incorporated document provides that:

A permit may not be granted to use land for a dwelling under Section 2 of the Table of uses to Clause 35.07-1.

A permit may not be granted to create a smaller lot for an existing dwelling under Clause 35.07-3.

1. The effect of Amendment C48 is to introduce a specific control that prohibits or restricts the use or development of land in the Farming Zone beyond the controls that otherwise apply by virtue of the zone provisions in clause 35.07. In the case of use of land as a dwelling, the incorporated document provides that a permit may not be granted to use land for a dwelling under section 2 of the table of uses to clause 35.07-1. This means that now a permit may not be granted to use land for a dwelling on a lot less than 40 hectares. The question in the present case is whether a permit may be issued, as distinct from being granted.
2. The situation in the present case differs from circumstances in other cases where I have been called upon to interpret the effect the Amendment C48.[3] Previous cases I have dealt with involved applications for review under either section 77 or 79 of the Planning and Environment Act 1987 against the refusal or failure of the responsible authority to make a decision to grant a permit. In the present case, at its ordinary meeting of 18 March 2009 South Gippsland Shire Council determined to issue a notice of decision to grant a planning permit for the use and development of a dwelling on the subject land. The notice of decision was dated and posted on 26 March 2009. This application for review was lodged by an objector, Mr Neil Couper, on 16 April 2009 pursuant to section 82 of the Planning and Environment Act 1987. This was prior to the Minister for Planning introducing Amendment C48 on 29 May 2009.
3. On 1 July 2009 the applicant/objector, Mr Couper, applied to the Tribunal to withdraw his application for review. The Tribunal refused to give leave to withdraw the application and referred it to this practice day hearing on the basis that:

The effect of the withdrawal would be to leave standing the council's notice of decision and result in the issue of a permit in accordance with the notice of decision. The Tribunal needs to be satisfied that this outcome would be lawful having regard to amendment C48. ...

1. If I was faced with having to make a decision about this application for review now, I would be obliged to refuse to grant the permit. However, the applicant/objector no longer wishes to contest the application for review and wishes to withdraw it. The effect of a withdrawal of an application is to leave standing the decision made by the council, which in the present case is to grant a permit.[4] In these circumstances, the Tribunal is not required to make a decision about whether to grant a permit.
2. Pursuant to section 51(5) of the Victorian Civil & Administrative Tribunal Act 1998:

(5) If an applicant does not appear (personally or by representative) at the hearing of a proceeding for review of a decision, the Tribunal must confirm the decision.

1. I note that this provision requires the Tribunal to "confirm" the decision. This is different terminology to that used in other sub-sections of section 51. For example, section 51(2) provides that in determining a proceeding for review of a decision the Tribunal may, by order -

(c) set aside the decision under review and make another decision in substitution for it; or

(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

1. Thus, if I refused to give the applicant/objector leave to withdraw his application for review and he then failed to appear at the hearing, the outcome would be that the Tribunal would be obliged to confirm the council's decision to grant a permit. In this case, the Tribunal would not be making its own decision. It would not be determining the proceeding for review of the decision by affirming the decision under review. Rather, it would be undertaking an administrative act directed by the legislation to confirm the decision of the council.
2. In the case of Bass Coast SC v Christian Brethren Trust[5] I dealt with a similar situation in the context of an application for declaration.
3. In the Christian Brethren case, the responsible authority issued a notice of decision to grant a permit. There was an objector's application for review which was withdrawn. On the day leave was granted by the Tribunal to withdraw the application for review, the planning scheme was amended so that the use became prohibited.
4. I held that the council could issue the permit notwithstanding the change in zoning of the land. The pivotal step was the decision to grant a permit in May 2006. At that time, there was no legal impediment to the grant of a permit. Once a decision to grant a permit is made under section 61 of the Planning and Environment Act 1987, a responsible authority is obliged to issue the permit unless there are objectors. If there are objectors, the responsible authority must not issue the permit to the applicant unless there is no application for review to the Tribunal by an objector or, if an application for review is made, until the application is determined by the Tribunal or withdrawn.[6] Where the application for review was withdrawn, the result was that there was now no impediment to the issue of the permit.
5. The issue of a permit is an administrative action that implements a decision. The decision to grant a permit and the issue of the permit are separate actions. The relevant law is the law that applied at the time the decision to grant the permit was made. Following withdrawal of the application for review, no further decision was required to be made. Rather, the decision made by the council is the basis upon which the permit must be issued pursuant to section 64(3)(b) of the Planning and Environment Act 1987. The amendment to the planning scheme did not affect the validity of this decision to grant the permit for several reasons based on section 28(2) of the Interpretation of Legislation Act 1984 and section 50(1) of the Victoria Civil and Administrative Act 1998.[7]
6. If the application for review had not been withdrawn and the Tribunal was called upon to make its own decision about whether or not to grant a permit, the situation would be different. In that circumstance, the pivotal decision would be the decision by the Tribunal and it would be required to make a decision in accordance with the planning scheme as at the date of determination of the application for review in accordance with the principle established in Ungar v City of Malvern.[8]
7. I cannot compel the applicant/objector to attend the hearing and contest the application for review. If I refuse leave to withdraw his application and he fails to attend the hearing, the Tribunal would be obliged to confirm the council's decision under section 51(5) Victorian Civil & Administrative Tribunal Act 1998. It therefore seems pointless to refuse leave - the outcome will be the same in any event.
8. Whilst this may result in the issue of a permit, which could not now be lawfully granted pursuant to the provisions of Amendment C48, the particular circumstances of this case mean there is a window created whereby this permit must now be issued. The situation is effectively the same as if no application for review had ever been lodged under section 82 of the Planning and Environment Act 1987 and the council had proceeded to issue the permit in accordance with the notice of decision prior to Amendment C48 coming into effect.
9. I therefore conclude in the present case that I should give leave to the applicant/objector to withdraw his application for review. This means that the council will now need to issue the permit in accordance with the conditions set out in the Notice of Decision dated 26 March 2009.

[1] In accordance with the Ministerial Powers of Intervention in Planning and Heritage Matters Practice Note, the Minister for Planning has agreed to make publicly available written reasons for each decision; and provide a report to Parliament at least every 12 months detailing the nature of each intervention. These "Reasons" are made pursuant to this Practice Note.

[2] Section 2 clause 35.07-1 and clause 35.07-4 South Gippsland Planning Scheme

[3] For example, Daniel Williams v South Gippsland Shire Council VCAT Reference No. P620/2009

[4] This must be compared to an application for review under section 77 and 79 where the effect of a withdrawal is to leave standing the council's decision to refuse to grant a permit. (A failure is a deemed refusal - see section 4(2)(d) Victorian Civil & Administrative Tribunal Act 1998.)

[5] [2006] VCAT 1958

[6] See section 64(3) of the Planning and Environment Act 1987

[7] [2006] VCAT 1958 at [7]- [10]

[8] [1979] VicRp 25; [1979] VR 259; (1979) 44 LGRA 393