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[2005] VCAT 2700
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2005-12-19
Original judgment source is linked above.
VCAT REFERENCE NOS. P1980/2005, P2385/2005 & P2388/2005
Declarations pursuant to sections 149A and 149B Planning and Environment Act 1987 - Cancellation of permit pursuant to section 87 - Validity of interpretation of schedule to the Environmental Rural Zone in Glenelg Planning Scheme - Determination of boundaries pursuant to clause 61.05 - Weight to be given to public policy and personal circumstances
1 In application P2385/2005, pursuant to sections 149A and 149B of the Planning and Environment Act 1987 I make the following declarations:
a
The area referred to in the schedule to the Environmental Rural Zone in the Glenelg Planning Scheme as having a minimum subdivision area of 40 hectares is the land generally west of Kennedys Road; generally south of Bridgewater Lakes Road and the continuation of this road east of Lower Cape Bridgewater via Knights and Parkers Road, Bridgewater Road and Malings Road to the intersection of Sheoke Road; and generally west of Sheoke Road.
b
The subject land known as 329 Cape Nelson Road, Portland is within the area defined in the schedule to the Environmental Rural Zone as being the Cape Bridgewater - Bridgewater Lakes area. A minimum subdivision lot size of 40 hectares applies to the subject land.
c
Subdivision of the subject land at 329 Cape Nelson Road, Portland into five lots is prohibited by clause 35.02-4 of the Glenelg Planning Scheme.
d
The grant of planning permit TP145/04 was prohibited by the Glenelg Planning Scheme.
e
The responsible authority is not bound by the decision of the certificate issuing authority dated 21 October 2003 in relation to the determination of a boundary between the two minimum subdivision areas referred to in the schedule to the Environmental Rural Zone pursuant to clause 61.06 of the Glenelg Planning Scheme.
f
The purported determination of boundaries pursuant to clause 61.06 dated 21 October 2003 is invalid.
2 In application P2388/2005, pursuant to section 87 of the Planning and Environment Act 1987, the Tribunal cancels planning permit No. TP145/04 (amended) issued on 30 July 2004 by the responsible authority in respect of the subject land.
3 The responsible authority is directed to cancel planning permit No TP145/04 (amended) and give notice under section 92 of the Planning and Environment Act 1987.
4 In application P1980/2005, the decision of the responsible authority is affirmed. The Tribunal directs that a statement of compliance in respect of plan of subdivision 529598J must not be issued and the plan of subdivision must not be certified.
5 No order as to costs.
Mr David O'Brien of counsel, instructed by Stringer Clarke. He called as witnesses:
• Bernie Wilder, town planner
• Hildegard Egan
1 There are three applications before the Tribunal in this matter.
2 The first (P1980/2005) is an application by Hildegard Egan pursuant to section 40 of the Subdivision Act 1988 against the decision of Glenelg Shire Council to refuse to issue a statement of compliance in relation to plan of subdivision 539598J.
3 The remaining proceedings are proceedings brought by council in relation to the issue of planning permit TP145/04 which allowed the subdivision of the subject land. Application P2385/2005 is an application for declarations pursuant to section 149A of the Planning and Environment Act 1987 concerning the minimum lot size for subdivision applicable to the subject land and associated issues. Application P2388/2005 is an application for cancellation of planning permit TP145/04. Council's proceedings centre on interpretation of the relevant provisions of the Glenelg Planning Scheme and specifically whether the subdivision approved by planning permit TP145/04 is allowed under the provisions of the scheme. Council conceded that if it was unsuccessful in its applications, then the application by Hildegard Egan for a statement of compliance for the plan of subdivision must succeed (subject to minor amendment of the permit).
4 This case raises serious issues about the council's interpretation of the planning scheme and the misuse of provisions in the planning scheme for determining boundaries (clause 61.06) in a way that is both contrary to the planning scheme and repugnant to the provisions of the Planning and Environment Act 1987 itself.
5 I have decided that on public policy grounds the planning permit should be cancelled. The interpretation of the schedule to the Environmental Rural Zone which the responsible authority relied upon to grant the permit was wrong and the subdivision is prohibited by the planning scheme. The only way in which the subdivision may proceed is if the Minister weer to decide that these are extraordinary circumstances and the planning scheme was to be amended to include the subject land in the schedule to clause 52.03.
6 The subject land is located at the south-west corner of the intersection of Cape Nelson Road and Sheoke Road, Portland, some 3 kilometres south- west of the town of Portland. Critically, in terms of the minimum lot size for subdivision under the planning scheme, it is immediately west of Sheoke Road.
7 The land has a total area of 10.6 hectares. A dwelling house and outbuildings are located on the Cape Nelson Road frontage. The subject land and other land west of Sheoke Road is cleared grazing land. Land on the east side of Sheoke Road is included in a Rural Zone but is used for rural residential purposes. The land fronting Sheoke Road has been subdivided into a series of small rural residential lots, the majority of which are occupied by dwellings.
8 Planning permit application TP145/04 was received by council on 18 May 2004. It sought approval for a 5 lot subdivision of the subject land and use of each lot for a dwelling. This subdivision proposed one lot of 0.5 ha, two of 0.8 ha, one of 1.3 ha and another of 7.2 ha, which contains the existing dwelling.
9 The application was referred to Telstra, Powercor, Portland Water and Vic Roads[1] as referral authorities. One objection was received and a notice of decision was issued on 5 July 2004. There were no applications for review lodged and the planning permit was issued on 30 July 2004.
10 The plan of subdivision was certified by council on 18 January 2005. On 29 June 2005 a section 173 agreement was entered into between the parties pursuant to condition 22 of the permit, which provides that the lots shall not be subdivided so as to create additional lots. All works in regard to the subdivision required by the permit conditions have been carried out, (with an exception not relevant here). Costs incurred by Mrs Egan in respect of the subdivision to date are in the order of $47,800.
11 According to evidence given by Mrs Hildegard Egan by way of affidavit, she and her solicitors have been requesting the issue of a certificate of compliance in respect of the subdivision from council since 1 July 2005. The council delayed issuing a statement of compliance because, according to council officers, there was concern about the legality of the planning permit authorising the subdivision. This led to Mrs Egan lodging an application for review (as amended by order of the Tribunal dated 23 August 2005) under section 40 of the Subdivision Act 1988 in respect of the failure by the responsible authority to issue a statement of compliance for the subdivision.
12 The subject land is included in an Environmental Rural Zone under the Glenelg Planning Scheme. It is also included in an Environmental Significance Overlay (ESO1 - Coastal Areas). The Coastal Areas local planning policy in clause 22.02-4 applies to land included in schedule 1 to the Environmental Significance Overlay and hence applies to the subject land.
13 It is the provisions of the Environmental Rural Zone that are in contention in these proceedings. Pursuant to clause 35.02-4, a permit is required to subdivide land. Each lot must be at least the area specified for the land in the schedule to the zone. There are three circumstances set out in clause 35.02-4 when subdivision may be permitted in to smaller lots. According to the evidence of Mr Bernie Wilder, who was council's delegate at the time the permit was issued but who gave evidence on behalf of Mrs Egan, the provision on which reliance was placed in issuing the permit is the second exception to the minimum lot size contained in clause 35.02-4, namely:
•
The number of lots is no more than the number the land could be subdivided into in accordance with a schedule to this zone. All lots must be at least 0.4 hectare. An agreement under Section 173 of the Act must be entered into with the owner of each lot created which ensures that the land may not be further subdivided so as to increase the number of lots. The agreement must be registered on title.
14 The number of lots into which land may be subdivided pursuant to this provision therefore depends on the schedule to the zone. Extracted below is both the statement of environmental outcome included in the schedule to the Environmental Rural Zone and the provisions relating to minimum subdivision size.
For the Cape Bridgewater- Bridgewater Lakes area, generally west of Kennedys Road, south of Bridgewater Lakes Road and west of Sheoke Road, the environmental outcome is to conserve the environment, landscape and vegetation qualities of the area by encouraging sound management practices and land capability principles which recognise the environmental sensitivity and biodiversity of the locality.
For other areas, the environmental outcome is to establish sustainable agricultural and horticultural uses based on the productive capabilities of the soil and to discourage the location of non soilbased activities which would result in the loss or under-use of agricultural land.
All areas except for the Cape Bridgewater-Bridgewater Lakes area, generally west of Kennedys Road, south of Bridgewater Lakes Road and west of Sheoke Road.
Cape Bridgewater-Bridgewater Lakes area, generally west of Kennedys Road, south of Bridgewater Lakes Road and west of Sheoke Road.
15 The issue in contention is whether the subject land is included within the area described in the schedule as the Cape Bridgewater - Bridgewater Lakes Area, generally west of Kennedys Road, south of Bridgewater Lakes Road and west of Sheoke Road. If it is within this area, there is a minimum subdivision size of 40 hectares in which case a planning permit should not have been granted because the total area of the subject land is less than 40 hectares. If the land is not within this area, there is a minimum subdivision size of 2 hectares, which means that the permit could have been granted.
16 The subject land is clearly west of Sheoke Road. However, confusion in the interpretation of the schedule arises from the fact that the road between Kennedys Road and Sheoke Road is an amalgam of roads of different names, only the western part of which is known as Bridgewater Lakes Road. The east-west extension of this road, which ultimately intersects with Sheoke Road, continues by other names. This is best illustrated by reference to the plan in appendix A. The road marked with a heavy black line on the west side of the plan is Bridgewater Lakes Road. The continuation of this road to the north is Kennedys Road, which is also referred to in the schedule to the Environmental Rural Zone. Sheoke Road is marked with a heavy black line on the east side of the plan.
Delegates purported declaration under clause 61.06
17 Clause 61.06 of the planning scheme provides as follows:
If a boundary in this scheme is not precisely shown on a planning scheme map or is not otherwise defined, the certificate issuing authority must determine the boundary if asked to do so and must notify the applicant within 60 days.
18 On 17 October 2003 a firm of surveyors, Brayley and Hayes Pty Ltd, wrote to Mr Wilder as senior town planner with Glenelg Shire Council regarding "clarification of boundaries within ERZ - Bridgewater". The text of this letter is reproduced in full below:
I refer to yesterday's telephone conversation regarding clarification of the boundary within the ERZ in the Bridgewater Lakes/Cape Bridgewater area. The schedule to the ERZ defines the boundary between the area that can be subdivided into 2 hectare allotments and 40 hectare allotments, however different interpretations can be applied to the description.
•
The reference to Sheoke Road is causing some ambiguity, as it is not located in the Bridgewater Lakes/Cape Bridgewater area. Has it been added in error? Have some road descriptions linking Bridgewater to Sheoke Road been omitted from the description?
•
The boundary referred to as being "generally west of Kennedys Road, south of Bridgewater Lakes Road" is not complete and should be linked to the coast in some manner. Does the boundary continue along Bridgewater Lakes Road, past Knights and Parkers Road, to the intersection of Bridgewater Road?
Please provide clarification of the boundary within the ERZ.
19 On 21 October 2003, Mr Wilder wrote to Brayley and Hayes as follows:
Environmental Rural Zone - Cape Bridgewater and Bridgewater Lakes
I refer to your letter dated 17 October 2003 seeking clarification of the zone boundary referred to in the Schedule to the Environmental Rural Zone.
It would appear that there is a typographical error in the scheme whereby the word Sheoak Road should read Shelly Beach Road. The 40 hectare minimum clearly relates to Cape Bridgewater and Bridgewater Lakes and not Portland or Cape Nelson. It should also be noted that Shelly Beach Road provides the link with the coast at the termination of Bridgewater Lakes Road at the intersection of Bridgewater Road and Shelly Beach Road.
Accordingly the balance of the zone east of the prescribed boundary is within an area where a two hectare minimum applies. In devising a subdivision the relevant information justifying a proposal in terms of the zone objective should be supplied at the application stage.
I hope the foregoing clarifies this matter for you.
Should you wish to discuss this matter further, please contact the writer on telephone 5522 2202.
20 Shelly Beach Road, which is referred to in this letter, is not a proclaimed road or a road shown on the planning scheme map. It is a track situated on crown land within Discovery Bay Coastal Park. A small arrow pointing to the location of Shelly Beach track is shown on the plan in appendix A at the southern extremity of Bridgewater Lakes Road.
21 Mr Wilder gave evidence that when he wrote the letter dated 21 October 2003 he was purporting to exercise his powers pursuant to clause 61.06 of the planning scheme to determine the boundary between the two areas referred to in the schedule to the Environmental Rural Zone for the purpose of delineating those areas which were subject to a 40 hectare minimum subdivision size and those areas which had a minimum subdivision size of 2 hectares. After he sent the letter, he prepared a map showing the delineation of these two areas. A reproduction of that plan is included in appendix B. Mr Wilder said that this map has been subsequently used as the basis for interpretation of the planning scheme in terms of showing the 40 hectare area and the two hectare area. The map was placed with the planning scheme maps in use and available for inspection at the council offices.
22 At the time when the letter dated 21 October 2003 was written, the council had delegated to (inter alia) the "Town Planner" all its apparent powers under the Planning and Environment Act 1987, including its powers under the following provisions:
•
Section 14 - carry out duties of the responsible authority
•
Section 198(1) - function to receive application for planning certificate
•
Section 199(1) - duty to give planning certificate to applicant
•
Section 201(1) - function of receiving application for declaration of underlying zoning.
•
Section 201(3) - duty to make declaration.
23 Clause 61.06 of the planning scheme, which is the provision that Mr Wilder says he relied upon in making the determination regarding the boundary between the 40 hectare and 2 hectare parts of the Environmental Rural Zone set out in the letter dated 21 October 2003, refers to "the certificate issuing authority". Clause 61.01 of the scheme identifies who the responsible authority and certificate issuing authority are for the purposes of the scheme and the Act provides as follows:
The responsible authority for the administration and enforcement of this scheme is specified in the schedule to this clause.
The person nominated under Section 198(1)(a) of the Act or the responsible authority under Section 198 (1)(b) of the Act, to whom a person may apply for a planning certificate, is specified in the schedule to this clause.
24 The schedule to clause 61.01 nominates the Minister for Planning as the responsible authority for wind energy facilities with a capacity greater than 30 megawatts and the Glenelg Shire Council as the responsible authority for all other matters. It identifies the "Person or responsible authority for issuing planning certificates" as the Glenelg Shire Council. At the relevant time, Mr Wilder was the "Town Planner" and consequently was the council's delegate as both responsible authority and as certificate issuing authority.
25 Application P1980/2005 (as amended by order of the Tribunal dated 23 August 2005) is an application under section 40 of the Subdivision Act 1988 that seeks an order directing the council to issue a statement of compliance for plan of subdivision 529598J. The council does not defend its failure to issue a statement of compliance except by reference to the matters raised in its applications for declaration and cancellation. If these are not successful, the council conceded that a statement of compliance should be issued.
26 Application P2385/2005 was made pursuant to section 149A of the Planning and Environment Act 1987 seeking the following declarations:
a. Declaration as to the correct minimum lot size for the purposes of land subdivision pertaining to the subject lot, 329 Cape Nelson Road, Portland.
b. Declaration as to whether the certificate issuing authority or responsible authority has the power to determine the boundary between the two minimum subdivision areas referred to in the schedule to the Environmental Rural Zone pursuant to clause 61.06 of the Glenelg Planning Scheme.
c. If the answer to the above is yes, a declaration as to whether the responsible authority is bound by a decision of the certificate authority in relation to the determination of a boundary between the two minimum subdivision areas referred to in the schedule to the Environmental Rural Zone pursuant to clause 61.06 of the Glenelg Planning Scheme.
d. Consequential declaration in relation to the validity of the planning permit issued for the 5 lots land subdivision at 329 Cape Nelson Road, Portland, and the cancellation of the planning permit pursuant to section 87 of the Planning and Environment Act 1987 of which an application has been made by council.
e. Consequential declaration regarding the validity of certification of plan of subdivision and the issue of Statement of Compliance.
27 At the outset of the hearing, the council sought leave to amend the application to one under section 149B of the Act to the extent that the Tribunal considered its jurisdiction under section 149A(1)(a) is inadequate to grant the declarations sought. The amendment was consented to on behalf of Mrs Egan and I so ruled.
28 Application P2388/2005 seeks cancellation of planning permit TPA145/04 on the grounds of material mistake. The material mistake relied upon is that:
The permit is ultra vires in purporting to authorise subdivision below the permissible minimum lot size for the subject land which, except as set out in the specific (and in the present case applicable) exceptions in clause 35.02-4 of the Glenelg Planning Scheme, is 40 hectares.
29 At the commencement of the hearing, the council also sought to amend its application to add the ground of 'change in circumstances', being the change in circumstances constituted by the Tribunal's declarations in relation to the section 149A application. This amendment was consented to on behalf of Mrs Egan and I so ruled.
30 There are three substantive issues to be decided in these proceedings:
•
What is the meaning of the schedule to the Environmental Rural Zone?
•
What is the effect of the purported determination of boundaries by Bernie Wilder under clause 61.06 of the planning scheme?
•
In the event that the subdivision is contrary to the planning scheme, should the Tribunal exercise its discretion under section 87 of the Act to cancel the planning permit?
31 The issue to be determined is what land is included in the Cape Bridgewater - Bridgewater Lakes area that is referred to in the following context in the schedule to the Environmental Rural Zone, namely:
Cape Bridgewater - Bridgewater Lakes area, generally west of Kennedy's Road, south of Bridgewater Lakes Road and west of Sheoke Road.
32 It can be seen by reference to the plan in appendix A and the facts set out in paragraph 16 that the Cape Bridgewater - Bridgewater Lakes area referred to in the schedule to the Environmental Rural Zone cannot be determined solely by reference to the specific roads mentioned, namely Kennedy's Road, Bridgewater Lakes Road and Sheoke Road.
33 On behalf of Mrs Egan it was submitted that the Cape Bridgewater - Bridgewater Lakes area referred to in the schedule is only that land west of Kennedys Road and Bridgewater Lakes Road (shown with a thick black line on the plan in appendix A) and being the area shown across hatched on the plan in appendix B for the following reasons:
•
The reference to Sheoke Road in the schedule is a mistake. The reference should be to Shelly Beach Road.
•
Locally, the areas known as Bridgewater Lakes area and Cape Bridgewater area are the areas west of this line. Areas east of this line are known as Bridgewater Bay area and Cape Nelson area.
•
The environmental outcome included in the schedule to the Environmental Rural Zone indicates an intention to protect the valued characteristics of the Cape Bridgewater - Bridgewater Lakes area, not all areas within the Environmental Rural Zone.
•
According to the evidence of Mr Wilder, there are distinct differences in the landscape character and soil types between the Cape Bridgewater - Bridgewater Lakes areas and the Bridgewater Bay - Cape Nelson areas. He said that Kennedys Road and Bridgewater Lakes Road formed the boundary between the two areas because:
•
The roads formed a demarcation of differing landscape types identified in a Landscape Study prepared by Tract Consultants.[2]
•
The land east of Bridgewater Lakes Road comprised poor quality agricultural land containing large areas of remnant vegetation which could be restructured by using subdivision techniques and Trust for Nature covenants to bring about a good environmental outcome.
•
Pine and blue gum forests were being developed east and north of Bridgewater Lakes Road which was consistent with agricultural objectives.
•
The reference to Sheoke Road is surprising because it is not located anywhere near the Cape Bridgewater - Bridgewater Lakes area. Sheoke Road does not join or connect with the two roads, Kennedys Road and Bridgewater Lakes Road, as is usually the case in a boundary or area definition. There is thus no sensible, literal construction of the three roads mentioned that is not, at best, ambiguous.
•
The reference to Sheoke Road ought to be read down as it creates more uncertainties as to the boundaries of the Bridgewater area than it resolves. If the other two roads (Kennedys Road and Bridgewater Lakes Road) are referred to alone, a very specific area is identified which equates to what is known locally as the Bridgewater Lakes area and Cape Bridgewater area. To the extent that any meaning must be given to Sheoke Road, it can be said that this area is generally west of Sheoke Road, albeit not immediately west of Sheoke Road.
34 On behalf of the council, it was submitted that the area referred to in the schedule is the area west of Kennedys Road and Bridgewater Lakes Road to the point where Bridgewater Lakes Road changes direction and runs due south at Lower Cape Bridgewater. It then includes the land shown cross hatched on the plan in appendix A south of the roads connecting Bridgewater Lakes Road at Lower Cape Bridgewater to the west and the northern end of Sheoke Road to the east. The council relies upon the following reasons in support of this interpretation.
•
All the land shown cross hatched on the plan in appendix A is included in the Environmental Significance Overlay (ESO1 - Coastal Environs). The boundaries of ESO1 coincide to a high degree with the boundary of the Environmental Rural Zone along the coast. The eastern boundary of both ESO1 and the Environmental Rural Zone is Sheoke Road.
•
The reference to Sheoke Road in the schedule to the Environmental Rural Zone is not a mistake or typographical error which should read 'Shelly Beach Road'.
•
There is no proclaimed road named Shelly Beach Road in the municipality or on the planning scheme map. Its omission from the planning scheme is inexplicable if such a road were intended as the boundary between two minimum subdivision areas.
•
The references to Kennedys Road and Sheoke Road are unambiguous and the areas west of these roads are clearly identifiable. It is only the reference to Bridgewater Lakes Road that is ambiguous. The definition has omitted reference to the east-west extension of Bridgewater Lakes Road which ultimately connects with Sheoke Road (being Knights and Parkers Road, Bridgewater Road and Malings Road). Sense can be made of the definition by adopting a continuous line interpretation of the area that is generally south of Bridgewater Lakes Road.
•
A clear distinction can be drawn between the different sorts of environmental outcomes to be achieved under the Environmental Rural Zone by the application of different minimum lot sizes for subdivision. There are different local policies within clause 22.02 applying to coastal areas (clause 22.02-4) and high quality agricultural land (clause 22.02-5). The High Quality Agricultural Land Policy applies to land within the Environmental Rural Zone to the north and north-west of Portland. The Coastal Areas Policy applies to land included in Schedule 1 to the Environmental Significance Overlay, which is all the land shown cross hatched on the plan in appendix A. There is therefore a clear distinction between those parts of the Environmental Rural Zone in the coastal areas to which a 40 hectare minimum subdivision size is intended to apply and those parts of the Environmental Rural Zone to the north and north-west of Portland where a two hectare minimum subdivision size is intended to apply.
35 I have concluded that the 'continuous line interpretation' of the description in the schedule to the Environmental Rural Zone of the Cape Bridgewater - Bridgewater Lakes Area is to be preferred. I find that the area referred to in the schedule as having a minimum subdivision size of 40 hectares is the land generally west of Kennedys Road; generally south of Bridgewater Lakes Road and the continuation of this road east of Lower Cape Bridgewater via Knights and Parkers Road, Bridgewater Road and Malings Road to the intersection of Sheoke Road; and generally west of Sheoke Road. I therefore find that the subject land is within the area defined in the schedule to the Environmental Rural Zone as being the Cape Bridgewater - Bridgewater Lakes area and has a minimum subdivision lot size of 40 hectares. My reasons for this finding are as follows.
36 Considerable attention was paid during the course of the hearing to the provisions of the exhibited (as distinct from the approved) new format planning scheme for Glenelg and the Panel's report and recommendations concerning aspects of the scheme and certain submissions. I do not consider that any weight should be placed on these matters. There are numerous differences between the new format Glenelg Planning Scheme as it was exhibited and as it was ultimately approved. The Panel Report was simply one input to the final outcome. I must interpret the planing scheme as it currently stands. This requires me to give effect to the plain meaning of the words used. If words are used that are capable of more than one meaning, I should give effect to a construction that would promote the purpose or object underlying the scheme (whether or not that purpose or object is expressly stated) rather than a construction that would not promote that purpose or object.[3] If the words of the planning scheme are clear and they would support the apparent purpose of the scheme, it is not appropriate to manufacture an ambiguity or refer to documents outside the scheme in an attempt to construe a purpose or meaning that is at odds with evidence of the purpose found within the scheme unless it is very clear that there is an obvious mistake.
37 When interpreting what is meant by the Cape Bridgewater - Bridgewater Lakes area defined in the schedule to the Environmental Rural Zone, meaning should be given to all the words used if possible. It is not appropriate to ignore some of those words, especially when they have a plain meaning.
38 In my view, references to the area generally west of Kennedys Road and the area generally west of Sheoke Road are quite clear and unambiguous and should be given their plain meaning. It is the line that connects Kennedys Road and Sheoke Road that is less certain, namely the area generally south of Bridgewater Lakes Road.
39 Reference to an area "generally ... south of Bridgewater Lakes Road" implies (by necessity) an east-west line. Bridgewater Lakes Road has a generally east-west direction to it until it bears due south at Lower Cape Bridgewater, at which point the east-west road becomes Knights and Parkers Road, then Bridgewater Road, then Malings Road. It is only from the point where Bridgewater Lakes Road runs due north-south between Lower Cape Bridgewater and the coast, that no simple meaning can be given to the expression "generally south of Bridgewater Lakes Road".
40 But whilst this aspect of the definition may be ambiguous, there is no ambiguity about the meaning of the area "generally... west of Sheoke Road". The subject land is immediately west of Sheoke Road and thus must come within this definition. I find therefore, that the only ambiguous aspect of the definition of the Cape Bridgewater - Bridgewater Lakes area is the part which refers to the area "generally... south of Bridgewater Lakes Road". In order to interpret what is meant by this, it is relevant to identify the purpose in the planning scheme of having two different size minimum subdivision areas in the Environmental Rural Zone.
41 In my view, the 'continuous line interpretation' of the Cape Bridgewater - Bridgewater Lakes area is supported by consideration of the coincidence (or near coincidence) of the boundaries of the Environmental Rural Zone along the coast to the south-west of Portland and the Environmental Significance Overlay (ESO1 - Coastal Areas). The significance of this coincidence of boundaries is reinforced by reference to the Coastal Areas Policy in clause 22.02-4, which applies to land included in schedule 1 of the Environmental Significance Overlay. The policy applies to both the immediate coastal zone and areas inland where uses and development may have a significant effect upon the amenity and environment of the coast. There is a strong affinity between the objectives of the Coastal Areas Policy and the environmental outcome for the Cape Bridgewater - Bridgewater Lakes area, which is identified in the schedule to the Environmental Rural Zone. Both would be supported by a 40 hectare minimum subdivision area, but would be potentially jeopardised by a minimum subdivision area of two hectares.
42 Similarly, it is significant that the environmental outcome identified in the schedule to the Environmental Rural Zone for all other areas of the zone, except for the Cape Bridgewater - Bridgewater Lakes area, which have a minimum subdivision area of two hectares and which relate to sustainable agricultural and horticultural uses, reflect the objectives of the High Quality Agricultural Land Policy in clause 22.02-5, which applies to high quality agricultural land within the Environmental Rural Zone to the north and north-west of Portland. There are two main areas of Environmental Rural Zone land in Glenelg - along the coast to the south-west of Portland and to the north and north-west of Portland. In my view, the policy objectives applicable to these two areas are quite different and the two minimum subdivision areas specified in the schedule to the Environmental Rural Zone are intended to apply respectively in these two separate areas. To apply a two hectare subdivision area to all the land west of Sheoke Road around the coast as far as the north-south extension of Bridgewater Lakes Road (or Shelly Beach Road/Track) would be totally contrary to the policy objectives applying to this location by virtue of its inclusion in the Environmental Significance Overlay (ESO1 - Coastal Areas).
43 I place no weight on the evidence of Mr Wilder that Bridgewater Lakes Road, including its north-south section, demarcates differing landscape types and soils. I consider that his statements in this respect over-simplify and misrepresent the landscape study prepared by Tract Consultants in 1977 for entirely different purposes. But even if Mr Wilder's statements on this point are accepted at face value, his reasons for interpreting the schedule in the way he has and for making the purported determination of boundaries simply lack credibility or a sound planning basis to explain why such different minimum subdivision areas apply east and west of the Bridgewater Lakes Road when considered in the context of the planning policy framework set out in the planning scheme as a whole.
44 Equally, I place no weight on Mr Wilder's explanation as to why the reference to Sheoke Road in the schedule to the Environmental Rural Zone is a mistake and that what was intended to be referred to is Shelly Beach Road/Track. At the hearing he said that at the time when the new format Glenelg Planning Scheme was being finalised, prior to its introduction, he had a discussion with Alison Harris of the Department of Infrastructure about mapping changes. He said that "it was agreed that Kennedys Road and Bridgewater Lakes Road would form a suitable demarcation point for the zone boundaries" and "it is my recollection that there was some confusion as to the name Shelly Beach Road which was presumed to be Sheoke Road." Mr Wilder said that he could only presume that she (Alison Harris) "seized on Sheoke Road by mistake due to the number of maps". However, Mr Wilder said that whilst this was his recollection, apparently Alison Harris cannot remember this telephone conversation. Mr Wilder also said that the maps and the schedules to the zones and overlays were finalised by the Department and that he had no idea who came up with the name of Sheoke Road or who wrote the schedule to the Environmental Rural Zone.
45 Neither Mr Wilder nor the council prepared the final maps which now form part of the planning scheme or wrote the schedules. Therefore, Mr Wilder cannot presume to know what was in the mind of those people responsible for preparing the final version of the maps or schedules. In interpreting the schedule as the delegate of the council he was bound by the same principles of interpretation as is the Tribunal. I do not consider that Mr Wilder's speculation or unsupported recollection should disturb the plain meaning of the words included in the schedule to the Environmental Rural Zone in the planning scheme or lead to an interpretation that I consider is contrary to the policy objectives of the planning scheme.
46 It was submitted on behalf of Mrs Egan that the relevant boundary of the minimum subdivision area in the schedule to the Environmental Rural Zone is not precisely shown or otherwise defined within the meaning of clause 61.06 and, accordingly, the boundary is capable of being the subject of a determination by the certificate issuing authority (in this case the council) pursuant to the provisions of clause 61.06 of the planning scheme. It was submitted that the letter from Mr Wilder to Brayley and Hayes dated 21 October 2003 was a determination within the meaning of clause 61.06. It was further submitted that this determination was determinative of the issue as to where the boundary of the two minimum subdivision areas referred to in the schedule to the Environmental Rural Zone was located. It is an administrative action of the certificate issuing authority and something that the Tribunal must take judicial notice of.
47 Several issues arise in considering the effect of this purported determination:
•
Was this a valid exercise of power under clause 61.06?
•
What effect does the determination have on the validity of the permit?
•
Is it binding on the Tribunal when it comes to interpreting the meaning of the schedule to the Environmental Rural Zone.
48 Mr Wilder said in evidence that he knew about the power in clause 61.06 and that he could make a determination of boundaries. But there is no evidence that at the time the letter of 21 October 2003 was written it was intended to be a determination under clause 61.06. There is no request in the letter from Bayley and Hayes dated 17 October 2003 for determination of a boundary under clause 61.06. Nor is there any reference in Mr Wilder's letter dated 21 October 2003 that it purports to be a determination under clause 61.06. However, even if it was a purported exercise of power under clause 61.06 at the time it was made, I consider it was an invalid exercise of that power for the following reasons.
49 The determination has not been made with respect to any specific piece of land. Rather, it has been made and used subsequently as a standing interpretation of the planning scheme. The determination states that there has been "a typographical error in the scheme whereby the word Sheoak Road should read Shelly Beach Road." The determination then effectively operates to substitute the words Shelly Beach Road for the words Sheoke Road in the planning scheme. This substitution had a dramatic effect on the subdivision potential of a large area of land, yet no attempt was made to amend the planning scheme to accord with the determination purportedly made.
50 The Planning and Environment Act 1987 invests the power to prepare planning scheme amendments in the planning authority. There are detailed provisions set out in the Act about the procedures to be followed for amending a planning scheme, which include extensive opportunities for public participation. It would be repugnant to the tenor and purpose of the scheme set out in the Act to amend planning schemes if the same outcome could be achieved by an administrative act taken by a certificate issuing authority under the planning scheme itself.
51 I consider that the nature and extent of the power to determine boundaries pursuant to clause 61.06 is constrained by the capacity of the person making the determination, namely the certificate issuing authority, and the administrative purpose of clause 61.06.
52 The primary role of a certificate issuing authority set out under the Planning and Environment Act 1987 is to issue planning certificates[4]. A planning certificate relates to specific land and sets out prescribed information about the effect of the relevant planning scheme on the land at the date of the certificate[5]. A planning certificate is conclusive proof that at the date specified in the certificate that the facts set out in it were true and correct[6]. Any person acting on the basis of a planning certificate who suffers financial loss because of an error or mis-statement in the certificate may recover damages for that loss from the responsible authority (or the certificate issuing authority if not the responsible authority)[7].
53 Section 6 of the Act sets out what a planning scheme can provide for. There is no reference in section 6 to a power to determine boundaries. Therefore, to the extent that such a power is given to a certificate issuing authority under clause 61.06, it must be a power to be exercised in the administration of matters that the Act or planning scheme otherwise provide for. In other words, it is not a power to make a determination of a boundary in gross or in a way that substitutes for the planning scheme itself, but must be a determination of boundaries in relation to a specific matter arising under the planning scheme (e.g. consideration of a permit application) or the exercise of a specific power under the Act (e.g. application for an enforcement order or issue of a planning certificate). In each case, the determination must relate to the specific land that is the subject of the application, certificate or the like.
54 Under the schedule to clause 61.06 of the Glenelg Planning Scheme, the certificate issuing authority is the responsible authority, ie Glenelg Shire Council. Mr Wilder was the council's delegate as both responsible authority and certificate issuing authority.
55 The determination of boundaries under clause 61.06 must be undertaken in a proper manner in accordance with the planning scheme and according to law. The person making the determination cannot act arbitrarily or substitute his own opinion for the provisions of the scheme. I find that this is what has occurred in this instance. Mr Wilder has not determined the boundary in accordance with the description in the planning scheme but has substituted his own view of what he considers was originally intended. For the reasons set out earlier, I do not consider that it was open to Mr Wilder to ignore the words in the planning scheme by deciding that there had been a typographical error and that the reference to Sheoke Road should have read Shelly Beach Road. In effect, Mr Wilder has made a determination of boundaries based on his own views and not on the basis of what is written in the planning scheme. I find that this was an improper exercise of his authority. Further, for the reasons I have given earlier relating to the interpretation of the schedule to the Environmental Rural Zone in the context of the purpose of the provisions as evident from other aspects of the planning scheme, I find it was a determination that no reasonable authority could have made.
56 To the extent that it was alleged on behalf of Mrs Egan that Mr Wilder's purported declaration pursuant to clause 61.06 gives rise to an estoppel, I rely on the judgement of Balmford J in VBI Properties Pty Ltd and Anor v Victorian Civil and Administrative Tribunal and City of Port Phillip[8] and the cases quoted therein to the effect that a plea of estoppel cannot prevail as an answer to a claim that something done by a statutory body is ultra vires.[9]
57 There is also a precondition to the exercise of the power under clause 61.06 to determine a boundary. It may only be exercised if a boundary in the scheme is not precisely shown on a planning scheme map or is not otherwise defined. Only in those circumstances is the certificate issuing authority called upon to determine the boundary if asked to do so. In the present case, the question is whether there is a boundary that is not otherwise defined. As noted above, the Sheoke Road boundary referred to in the schedule is quite clearly defined and there is no ambiguity relating to this boundary. The boundary of the Cape Bridgewater - Bridgewater Lakes area that is not so clearly defined is the boundary between Bridgewater Lakes Road and Sheoke Road. In fact, this is the nub of the query in the letter from Brayley and Hayes dated 17 October 2003: "Have some road descriptions linking Bridgewater to Sheoke Road being omitted from the description?"
58 Mr Wilder responded to this query not by determining the boundary that was uncertain but by determining to change another boundary, which was otherwise quite explicit, by substituting the name of another road in a way that amounts to a de facto amendment of the planning scheme. In my view, the purported determination made by Mr Wilder was not a determination of a boundary that was not otherwise defined. Therefore, I find that the precondition for the exercise of authority under clause 61.06 did not exist.
59 I am not aware of any other cases where the ambit of clause 61.06 has been considered. A determination of a boundary pursuant to clause 61.06 was made in connection with the case of Kidman v Colac Otway Shire Council[10]. The determination of boundaries of overlays with respect to the subject land in that case made under clause 61.06 was ordered to be made by the Tribunal. The Tribunal's consideration of clause 61.06 in Kidman does not greatly assist in the present case, as the circumstances were different and a determination was made in respect of specific land. But the Tribunal did say:
[72] ...There is a clear intention that it is the planning scheme maps which will determine whether a zone or overlay applies to a particular parcel of land. Clause 61.06 deals with the determination of boundaries if a boundary is not precisely shown on a planning scheme map or is not otherwise defined. In my view, zone and overlay boundaries can only be shown on a planning scheme map. There are other boundaries that may be referred to in a scheme which may be defined rather than shown on a planning scheme map. However, there is no suggestion in either clause 61.06 or elsewhere in the scheme that such a boundary could be the boundary of a zone or overlay.
60 In the present case, the schedule to the Environmental Rural Zone identifies two areas within the zone where different minimum subdivision areas apply. I consider that the boundaries of the Cape Bridgewater - Bridgewater Lakes area described in the schedule are boundaries that are defined rather than shown on a planning scheme map, in the terms referred to in Kidman, and I find that they would be boundaries that may be the subject of a determination under clause 61.06 in appropriate circumstances. However, I do not consider that the purported determination was made in appropriate circumstances and was not a valid determination because:
•
It was not made in respect of specific land.
•
It was not made in the context of administering any other function under the planning scheme or Act.
•
It was a determination that no reasonable certificate issuing authority could have made.
61 In the exercise of its powers under either section 149A or 149B of the Act, it is the role of the Tribunal to make a determination relating to the interpretation of the planning scheme and to decide, as a matter of law, the meaning of the schedule to the Environmental Rural Zone. It cannot be constrained in the exercise of those powers by a determination under clause 61.06[11], especially one that is not valid.
62 For all these reasons, I find that the purported determination of boundaries under clause 61.06 dated 21 October 2003 was invalid. It is therefore not a determination that should bind the Tribunal and it cannot operate to validate what otherwise an invalid permit which is contrary to the provisions of the planning scheme.
63 In defending the application to cancel the permit, it was submitted by Mrs Egan that:
•
There was no material mistake.
•
The request should not be granted as it was not made as soon as practical after the applicant had notice of the facts relied upon in support of the request.
•
The development has been substantially carried out.
•
The application should not be granted in the circumstances of the case.
Has one of the grounds in section 87(1) been established?
64 I find there has been a material mistake in relation to the grant of the permit for the reasons previously given. The permit for subdivision is prohibited under the provisions of the Glenelg Planning Scheme and as a result this constitutes a material mistake in relation to the grant of the permit under section 87(1)(c) of the Planning and Environment Act 1987.
65 The council also relied upon section 87(1)(d) that there has been a material change of circumstances which has occurred since the grant of the permit. It points to the making of declarations in these proceedings as constituting the material change of circumstances. I do not consider it is necessary to rule on this ground. It essentially repeats the grounds set out in section 87(1)(c) relating to material mistake, which is the substantive matter that justifies cancellation.
66 Section 89(3) provides that the Tribunal may refuse to consider a request under 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. I find that the request was made as soon as practicable after the requester became aware of the facts. This is a discretionary factor and what is practicable must be considered in the light of all the circumstances, which may vary from case to case.
67 The background to the present case is that the council first became aware of Mr Wilder's interpretation of the description in the Environmental Rural Zone schedule in the context of an inquiry into Mr Wilder's provision of town planning services to the council, which was conducted in the latter part of 2004 and early 2005. This inquiry coincided with a parallel inquiry by the Auditor-General, which was not completed under October 2005 when the Auditor-General's audit report on Community Planning Services in Glenelg Shire Council: 1998-2005 was tabled in the Victorian Parliament. The council advised me that Mrs Egan was put on notice in early May 2005 that the validity of the permit was in doubt. It was submitted that in so far as activities to implement subdivision continued, they did so against the background of that notice. It was further submitted that:
In the present instance, there was a period of confusion concerning the facts, stemming in part from representations by Mr Wilder as set out in the Memorandum reproduced on pp.5-13 of his Witness Statement of 27 September 2005. Council made every effort to ascertain through successive legal advices whether indeed Mr Wilder's interpretation and declaration contravened the planning scheme. Clear advice to the effect that Mr Wilder's interpretation was ultra vires was not received until 10 August 2005.
68 This statement was the subject of submissions by Mr O'Brien that I should direct the council to produce the legal advices. Leave was given to parties to make further written submissions on this point. I have considered those submissions and find that it is neither necessary nor appropriate for the council to be required to produce those advices.
69 Section 80(1) of the Victorian Civil and Administrative Tribunal Act 1998 allows the Tribunal "to give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding". I cannot see how the disclosure of the contents of the legal advices to the council would advance the fair hearing and determination of these proceedings. In considering the issue of delay, the question is whether this delay was reasonable or whether the delay was such that it should influence me to reject consideration of the application.
70 Knowing the content of the advice received by council will not influence my decision. I will base my determination on the facts and the arguments presented in open hearing. So far as explaining any delay on the part of the council, it is the fact that the advices were obtained that is relevant, not the content of those advices.
71 It is not possible to crystallise the point in the investigations when it became apparent there was doubt about the validity of permit TP/145/04. I accept that it was proper and reasonable for the council to seek legal advice and to refrain from taking action until it received that advice. Mrs Egan was told of council's concerns in May. The applications for declaration and to cancel the permit were foreshadowed at a directions hearing on 19 August 2005 in connection with Mrs Egan's own application under section 40 of the Subdivision Act 1998. They were lodged on 9 September 2005. In these circumstances, I am satisfied there has been no unreasonable delay and the request under section 87 was made as soon as practicable after the council had notice of the facts relied upon in support of the request within the meaning of section 89(3) of the Act. "As soon as practicable" does not mean "as soon as possible". The word practicable connotes what is feasible and acknowledges that some prior groundwork may be necessary, such as obtaining advice.
72 It was submitted on behalf of Mrs Egan that the development in the present case has been substantially carried out and that consequently the Tribunal lacks discretion to cancel the permit by virtue of section 88(b) of the Act. Mr O'Brien relied upon G E & B A Cuthbert v City of Croydon[12] where the Tribunal held that a subdivision was substantially carried out where the only remaining step was the issue of a statement of compliance.
73 I take a different view. There are specific provisions in section 91(4) and (5) dealing with permits relating to a subdivision. They provide that a permit which relates to a subdivision cannot be cancelled if the plan of subdivision has been registered under the Subdivision Act 1988. If a cancelled permit relates to a subdivision any plans certified under the Subdivision Act 1988 must be surrendered to the responsible authority.
74 In the present case, although works in connection with the subdivision have been carried out, there is still an important step that needs to be taken prior to registration, which is the issue of a statement of compliance. Section 41B(a) of the Subdivision Act 1988 provides that in determining any application under that Act[13], the Tribunal must take into account any relevant planning scheme. This provision would require me to take into consideration whether the permit authorising the subdivision was a valid permit under the planning scheme before making an order directing the council to issue a statement of compliance for the subdivision.
75 When interpreting section 88(b) of the Planning and Environment Act 1987 and deciding whether a development is substantially carried out, the nature of the development must be considered. The works that have been carried out on the land have been undertaken to satisfy conditions in the permit for subdivision. It is not these works in themselves that constitute the development but the subdivision. The permit itself is for subdivision. A subdivision is only substantially completed once it is registered because it is only at this point that the land is legally divided into lots which can be separately disposed of. What constitutes the substantial carrying out of a development will depend upon the nature of the development. In the case of a subdivision, I find that the subdivision is not substantially carried out until it is registered. The Act makes it clear in section 91(5) that once registration has occurred, a permit that relates to the subdivision cannot be cancelled. For all these reasons I find it is open to the Tribunal to cancel the permit relating to subdivision because the development in this case is incomplete.
76 I also note that the permit allows use of the land for dwellings. Under section 88(c) a permit may be cancelled at any time if the permit relates to the use of the land. I therefore find there is no impediment to me cancelling the permit for either use or development by virtue of section 88 of the Act.
77 Clearly, as a matter of principle, the issue of a permit for a subdivision that is not permitted by the planning scheme is inappropriate (and illegal). However, it is relevant to consider whether, leaving aside the minimum subdivision sizes permitted under the zone provisions of the planning scheme, a subdivision of the type proposed would be inappropriate on other planning grounds.
78 It was conceded by the council that it had no objection to the subdivision on planning grounds, apart from the fact that it was contrary to the planning scheme. Mr Wilder, in his capacity as a town planner, gave planning evidence on behalf of Mrs Egan which also supported the suitability of the land for subdivision.
79 I accept that, apart from legal issues, the land is suitable for the proposed subdivision. It is in close proximity to Portland. Reticulated services are available to it (apart from sewerage) and all weather sealed road access is provided. A soil and water report indicates that treated wastes associated with future dwellings can be disposed off within the site in accordance with relevant EPA policy. The subject land is remote from the coast and will not have any adverse impacts on the landscape. The smaller lots of the subdivision are located opposite similar size lots on the east side of Sheoke Road and the development will therefore be consistent with other similar style rural residential development in the immediate vicinity. On these bases the subdivision would not be inappropriate on planning grounds.
(3) The Tribunal must not direct a responsible authority to cancel or amend a permit on a request under section 89(1) unless it is satisfied that -
(c) it would be just and fair in the circumstances to do so.
81 It is relevant to note that the constraint on cancelling or amending a permit unless it is just and fair in the circumstances to do so relates specifically to an application under section 89(1), which is an application by a third party who was an objector or who would have been entitled to object. There is no similar specific constraint on other applications under section 87. Of course, whenever a remedy is discretionary equitable principles will apply in deciding whether to exercise discretion. In the context of section 91(3)(c), the Tribunal has frequently taken the opportunity to consider the merits of the permit and consider what outcome would have been likely
if the applicant had been given notice or the other events specified had not occurred when deciding if it would be just and fair to cancel or amend the permit. But different issues may come into play and affect the balance when considering what is just and fair in an application by a person under section 89(1) compared to other applications by other persons.
82 Whether it is just and fair in the circumstances to cancel permit TP145/04 has been a difficult question to answer. On the one hand, the permit produces an acceptable planning outcome that is not out of keeping with surrounding development and does not produce any adverse environmental impacts. Mrs Egan is an elderly lady who is suffering from failing eyesight. She has no family in Portland and wishes to relocate to New South Wales to live closer to her only daughter. The subdivision will enable her to capitalise her house and land asset to purchase other accommodation and invest to provide for future needs. There is no suggestion that Mrs Egan has been in any way at fault, but rather she has been caught up in a "change of position" by the council. She has incurred expense in the order of $48,000 associated with the subdivision and is, in all respects, a victim of circumstances.
83 On the other hand, the issue of a permit for a prohibited residential subdivision is an extremely serious matter. In public policy terms, the proper interpretation and enforcement of the planning scheme favour a decision that upholds the integrity of the scheme.
84 I have decided that in the interests of public policy, the planning permit should be cancelled. I have found that the correct interpretation of the schedule to the Environmental Rural Zone means that the permit is invalid because it allowed a subdivision that was contrary to the minimum lot sizes permitted in this location. I have found that the actions of Mr Wilder, as delegate of the responsible authority and certificate issuing authority, in purporting to make a determination of boundaries pursuant to clause 61.06 were also ultra vires.
85 In balancing the competing interests of public policy and personal circumstance, it is relevant to have regard to the background events that have led the council to make these applications for declarations and cancellation of the permit. The grant of this permit for a subdivision that was otherwise prohibited and the purported determination of boundaries by Mr Wilder were not isolated instances. They were part of a systemic approach to planning decision making on the part of the responsible authority and its delegate which has been the subject of a critical audit report by the Auditor-General on Community Planning Services in Glenelg Shire Council; 1998-2005 referred to earlier. The actions taken by council in seeking declarations regarding the correct interpretation of the planning scheme and a consequent cancellation of the planning permit in this case must be seen in the light of an attempt to redress some of the deficiencies identified in the Auditor-General's report. Under the Planning and Environment Act 1987 the duties of a responsible authority are to efficiently administer and enforce the planning scheme; to implement the objectives of the planning scheme; and in order to comply with the Act and the planning scheme[14]. It is therefore very important for the credibility of the council as a responsible authority and to maintain public confidence in the integrity of the planning system that the planning scheme is seen to be upheld and enforced. To allow the personal circumstances of the landowner in this case to override the responsibility of upholding the planning scheme would be tantamount, in my mind, to condoning the very approach to planning that the Auditor-General has criticised in his audit report.
86 I have therefore reached the conclusion that it would be inappropriate to exercise my discretion not to cancel the permit when I have found that it is in direct breach of the planning scheme.
87 My decision to cancel planning permit TP145/04 will give right to a compensation under section 94 of the Act, although this may give little comfort to Mrs Egan or enable her to fully realise the returns she may otherwise have made upon the sale of her land following subdivision.
88 As my decision has been based upon matters of principle and public policy, and because I have found that there would be no adverse planning consequences otherwise as a consequence of the subdivision, there is a means whereby approval could be given to allow this subdivision to proceed without compromising the zoning of the land or the environmental outcome for the general Cape Bridgewater - Bridgewater Lakes area identified in the schedule to the Environmental Rural Zone.
89 Clause 52.03 of the planning scheme relates to specific sites and exclusions. The purpose of clause 52.03 is:
To recognise specific controls designed to achieve a particular land use and development outcome existing on the approval date.
To provide in extraordinary circumstances specific controls designed to achieve a particular land use and development outcome.
90 Clause 52.03 allows land identified in the schedule to the clause to be used or developed in accordance with the specific controls contained in an incorporated document corresponding to that land in a manner that would otherwise be prohibited or restricted in the scheme. It seems to me there may be grounds for the Minister for Planning to consider a ministerial amendment (without notice) to the Glenelg Planning Scheme that would include the subject land in the schedule to clause 52.03 and enable it to be subdivided and used in accordance with the provisions of permit TP145/04 (or its equivalent).
91 This solution could have benefits for Glenelg Shire Council in terms of avoiding (or at least minimising) its liability for compensation; it would enable Mrs Egan to complete her subdivision and realise on it; and, most importantly, the subdivision would occur lawfully and in accordance with the provisions of the planning scheme. Clearly this is a matter for consideration and ultimate decision by the Minister. But in my view these are extraordinary circumstances and the case would appear to fall squarely within the second purpose of clause 52.03.
92 The declarations sought by the council are set out in paragraph 23. As well as opposing the declarations on substantive grounds, Mr O'Brien also opposed them on the basis that, in substance, they amounted to a series of open ended questions to be answered by the Tribunal and that at best they amounted to a series of requests for an advisory opinion. In light of the serious consequences of the applications made by the council, who is in essence taking proceedings against its own actions, he submitted it is not appropriate for the applications to be made in such an unsatisfactory manner which forces Mrs Egan speculate as to the precise nature of the declarations being sought.
93 I disagree with these submissions. I consider that even if the drafting of the declarations could have been improved, it was quite clear what they meant. Their serious nature means that I should consider their substance even if this involves reframing them to better address the issues raised.[15]
94 I consider this is an appropriate case in which to make declarations. I consider that the circumstances meet all the relevant principles governing the exercise of the power to make a declaration, which were summarised by the Tribunal in Hill v Campaspe Shire Council[16] as follows:
• The jurisdiction is not available if the issue is purely theoretical.
• The issue must not only be in existence but must be attached to facts. The dispute must be real, not hypothetical. The dispute must be of practical importance.
• The making of a declaration must be of practical use.
95 I am satisfied that each of these requirements is met in this case. I agree with the submission of the council that:
...the present case is exceptional in this respect in that the declaratory orders sought are imperative in the context of the wide spread confusion created by the opinions, actions and purported declaration of Mr Wilder and are necessary to establish for the public record the correct interpretation of the planning scheme. In this connection ... the October 2005 Auditor-General's Report Community Planning Services in Glenelg Shire Council 1998 - 2005 comments upon this state of confusion and includes a recommendation that where there are ambiguities regarding the requirements of the planning scheme these be investigated and resolved.
96 I do not consider that the case of Phillips v Greater Shepparton City Council[17] precludes me from making a declaration regarding the validity of planning permit TP145/04 although it does influence the nature of the declaration that I make. In Phillips the Tribunal considered at some length the relationship between section 87 and section 149B of the Planning and Environment Act 1987 and the weight to be given to the existence of alternative remedies when making a declaration. It should be noted that the discussion in Phillips case focussed on the issue of whether it was appropriate to make a declaration that a permit was invalid because proper notice was not given.[18] The Tribunal held in Phillips that:
[109] The power to make a declaration is not ousted by the existence of alternative remedies. The provision within a statute setting out a particular procedure for determining an issue in relation to which a declaration has been sought will not automatically or necessarily lead to the conclusion that a declaration will be refused, but it will be an important factor that may influence whether discretion to make a declaration should be exercised.
97 The grounds for cancelling the permit in the present case are not related to whether proper notice was given. Rather, they turn on a question of law as to whether the planning scheme prohibited the grant of the permit and hence whether there was a material mistake in the grant of the permit. I consider that it is appropriate in this situation to make a declaration that the planning scheme did prohibit the grant of a permit. This establishes the material mistake that is then relied upon as the ground for cancelling the permit under section 87. But I do not consider that it is necessary to make a declaration that the permit itself is invalid because there is an alternative remedy under section 87, which is to cancel the permit.
98 I therefore propose to make the following declarations in this matter:
a The area referred to in the schedule to the Environmental Rural Zone in the Glenelg Planning Scheme as having a minimum subdivision area of 40 hectares is the land generally west of Kennedys Road; generally south of Bridgewater Lakes Road and the continuation of this road east of Lower Cape Bridgewater via Knights and Parkers Road, Bridgewater Road and Malings Road to the intersection of Sheoke Road; and generally west of Sheoke Road.
b The subject land known as 329 Cape Nelson Road, Portland is within the area defined in the schedule to the Environmental Rural Zone as being the Cape Bridgewater - Bridgewater Lakes area. A minimum subdivision lot size of 40 hectares applies to the subject land.
c Subdivision of the subject land at 329 Cape Nelson Road, Portland into five lots is prohibited by clause 35.02-4 of the Glenelg Planning Scheme.
d The grant of planning permit TP145/04 was prohibited by the Glenelg Planning Scheme.
e The responsible authority is not bound by the decision of the certificate issuing authority dated 21 October 2003 in relation to the determination of a boundary between the two minimum subdivision areas referred to in the schedule to the Environmental Rural Zone pursuant to clause 61.06 of the Glenelg Planning Scheme.
f The purported determination of boundaries pursuant to clause 61.06 dated 21 October 2003 is invalid.
99 An application for costs was made by Mr O'Brien on behalf of Mrs Egan. In light of my decision, I do not consider that any order for costs should be made or that there should be any departure from the normal rule set out in section 109 of the Victorian Civil and Administrative Tribunal Act 1998 that parties bear their own costs.
[1] In fact, Vic Roads is not a referral authority as neither of the abutting roads (Cape Nelson Road and Sheoke Road) is a road for which Vic Roads is responsible. Nevertheless, at the request of Vic Roads, conditions in relation to access and driveways were included in the permit.
[2] Coastal Appraisal South Western Coastal Planning Scheme prepared for the Town and Country Planning Board by Tract Consultants Pty Ltd, September 1977; Technical Appendices, Volume two
[9] See Rhyl UDC v Rhyl Amusements Ltd [1702] EngR 68; [1959] 1 ER 257 at 265
[11] A determination under clause 61.06 does not have the same status as a planning certificate under section 200(1) of the Act, which is the conclusive proof that at the date specified in the certificate the facts set out in it which were incorrect.
[12] Unreported appeal Nos 1991/04290; 1991/04302; 1991/11123; 1991/11132 and cases referred to in Rowe Nicholls v Moreland City Council (1999) 4 VPR 23 at 41
[13] Other than an application under section 39, which is not relevant in this case.
[14] See section 14 Planning and Environment Act 1987
[15] Both sections 149A(2)(a) and 149B(2) enable the Tribunal may make any declaration it thinks appropriate
[16] [2005] VCAT 1128 at para [11]
[18] 2005 VCAT 653 at para [110] and [111]
Egan
Glenelg SC