Lot 7 on Plan of Subdivision No. 411691C being the land in Certificate of Title Volume 10389 Folio 645.

An irregularly shaped allotment of 146.9 hectares at the southwest corner of the intersection of Mt Aitken Road with Calder Highway.

[2003] VCAT 911

Mr D. Curtis, solicitor of the firm of Williams Winter, solicitors, appeared for the Applicant.

Mr P. Doyle, solicitor of the firm of Maddocks, solicitors appeared for the Responsible Authority.

Request under s. 87 of the Planning and Environment Act 1987 (PE Act) for amendment of a permit.

Application under s. 184(3) PE Act for amendment of an agreement under s 173 of that Act.

Amend Permit P2087/97 issued by the Responsible Authority on the 26 June 1997 which permit allowed subdivision of the land by deleting dot point one from condition 3 of that permit which required the agreement under s. 173 PE Act to ensure that information is recorded on the title of each lot created by the subdivision that the land may not be further subdivided.

Amendment to s. 173 Agreement to delete Clause 3.1 thereof which covenants that no lot is to be further subdivided.

1. This case concerns a farm of approximately 147 hectares in a Rural Zone at Melton. The present 147 hectare lot was created in a seven lot subdivision. The other six lots are small rural residential lots with areas varying between 1 and 2 hectares. They front Napier Street or a small court called Teppo Court created for the subdivision that runs off Napier Street. Lot 7 is the balance of the land. It remains as substantial rural holding.

2. The applicant wishes to further subdivide Lot. It wishes to excise the farmhouse from this land. Such further subdivision is prohibited by Planning Permit P2086/976 issued by the Responsible Authority on the 27 June 1997. This permit gave planning permission for the seven lot subdivision in question. Condition 3 of the permit requires an agreement under s 173 PE Act. It specifies various things required in the agreement including the following:-

Ensuring that information is recorded on the title of each lot created by the subdivision that the land may not be further subdivided.

3. I have not found another condition in the permit that directly says that further subdivision is prohibited. However the subdivision permit was only granted subject to condition 3 requiring the 173 agreement and the above quoted covenant. It is a necessary, indeed inescapable, inference from condition 3 that further subdivision is indeed prohibited.

4. The first of the proceedings before me is a request under s 87 PE Act to amend the permit to delete that requirement. A very similar request (P02080/2002) was before me on the 4 October 2002 in relation to the same permit. Effectively that request was aimed at the same purpose. It failed. In fact, I dismissed the proceeding pursuant to s. 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 on the basis that it was misconceived and lacking in substance.

5. The immediate problem in that case was that the request was made under s. 87 PE Act to amend, not the permit, but the s. 173 agreement required under condition 3 of the permit. At that stage, the permit to subdivide the land had been acted upon. Indeed, the plan of subdivision had been lodged at the Titles Office, registered and new titles had issued. Not only that, the smaller lots had been sold off to new owners. The development constituted by the subdivision, was complete.

6. The first difficulty was that s. 87, and a request thereunder, can only enable an amendment to the permit, and not to the s. 173 agreement. In that case the amendment sought was to the 173 agreement, and not to the permit. For that reason the proceeding was misconceived and lacking in substance.

7. However, I did not content myself with merely dismissing that earlier case. I went on to examine various possibilities whereby the applicant's purpose might, perhaps, be achieved. I did not purport to offer legal advice. I went no further than indicating that some of the procedures Mr Akers had in mind in that case were impossible, and that one or two others may justify further consideration. Mr Akers was a joint requestor with Goodcorp Pty Ltd in that earlier case. He appeared in person.

8. At paragraph 8 of my remarks in relation to the previous case I pointed out that:-

The Tribunal has no power under s. 87 to do anything in relation to the s. 173 agreement.

9. I went on to say the following in paragraphs 9, 10 and 11:-

9. As a matter of fact it has no power under s. 87, or the package of provisions in relation to the amendment and cancellation of permits found in s. 87 to 94 PE Act inclusive, to amend this permit either. Section 88 imposes constraints on request proceedings under those sections. It provides that the power of the Tribunal to amend or cancel a permit may be exercised, if the permit relates to the construction of buildings or works, at any time before those operations are completed or, if the permit relates to any other development of land, at any time before the development is substantially carried out.

10. Subdivision of land comes within the category of any other development of land, for the purpose of s. 88(b). As such the power to amend a permit can only be exercised, because of s. 88(b), at a time before the development is substantially carried out. The development represented by this subdivision is not only substantially carried out, but it is completed. In other words, it is entirely carried out. A subdivision is complete when it has been registered and when the new titles have been issued under it. That completion is further confirmed when new lots are sold out into other ownership.

11. The Tribunal is barred by s. 88(b) from amending the permit referred to in the request. The request proceedings must fail for this reason.

10. The above quotation makes the situation pretty clear. In October 2002 I was barred by s. 88(b) PE Act from amending the relevant permit because the development constituted by the subdivision, was complete.

11. That remains the situation today. As far as I can see it must be remain the situation in perpetuity. It is therefore rather puzzling to be confronted with this request under s. 87 for an amendment to the permit. Mr Doyle, on behalf of the Responsible Authority, took this point, quoting what I had said in relation to the previous case. Any amendment to the permit under s 87 is barred now, just as it was barred then, by s.88(b).

12. Mr Curtis, on behalf of the applicant, was not able to advance anything against this. On the contrary, he conceded this point, and admitted that his client's request under s. 87 must fail, apart from any other reasons, because of s. 88(b).

14. The amendment to the permit was sought because of the desire to further subdivide Lot 7. Condition 3 implicitly, but clearly and necessarily, prohibits that subdivision. As the permit cannot be amended to change or delete condition 3, the idea of further subdividing Lot 7 remains legally prohibited.

15. In fact, there is not much point in proceeding to the attempted amendment to Clause 3.1 of the agreement under s. 173 to enable such further subdivision, because condition 3 of the permit remains as a prohibition. Furthermore, any such amendment to the s. 173 agreement is most unlikely to be granted because it would be repugnant to the permit and to condition 3 thereof.

16. The attempt, under s. 184(3) PE Act, to amend the agreement, would have to fail in any event.

17. That sub-section provides that the owner of land:-

may apply to the Tribunal for an amendment to the agreement to remove the land from the application of the agreement, if the parties to the agreement cannot agree that the agreement should be amended.

18. In this case agreement of one or some of the other parties to the agreement cannot be obtained.

19. A careful reading of s. 184(3) reveals that it does not allow just any sort of amendment to a s. 173 agreement that the owner of the land might wish to have. It is fairly tightly constrained. The only allowable amendment is one "to remove the land from the application of the agreement".

20. The amendment to the s. 173 agreement sought in this case is not such an agreement as that. On the contrary, it seeks the deletion of Clause 3.1 from the agreement which agreement is then left otherwise to apply to the land. I see that this interpretation appears to accord with the view expressed in Butterworths Planning & Environment Service (Victoria). In the annotations in relation to s. 184, and indeed in relation to sub-section (3) thereof, a similar view is taken. Quite apart from that, I am satisfied that the view I have expressed is correct. Furthermore, Mr Doyle and Mr Curtis accepted that it is correct.

21. On that basis the second proceeding, the application under s. 184(3), must also be dismissed.

22. Mr Doyle pointed out that, even if this second proceeding was able to proceed, the applicant would have to satisfy one or other leg of sub-section (4) of s. 184. The first leg requires the Tribunal, if is it approve an amendment to a s. 173 agreement, to conclude that the land is not subject to any further liability under the agreement. Of course, the land in this case is subject to further liability under the s. 173 agreement.

23. That means that the alternative leg that the applicant would have had to meet would be, having regard to any relevant permit or the requirements of the Subdivision Act 1988, the Tribunal considers it inappropriate that the agreement should continue to apply to the land and the owner. If this had remained a live issue Mr Doyle would have sought particulars in relation to that requirement. As it is the question does not arise.

24. That requirement under s 184(4)(b) would probably have raised a consideration of the merits of the proposal to further subdivide the land by excising the farmhouse. That question did not become relevant either. However, on the basis of the material filed on behalf of the applicant in relation to each of these proceedings, and the support material filed as part of the respective request and application, it appears to me, prima facie, quite improbable that the applicant/requestor would be able to succeed on the merits. Whatever the merit of the subdivision that has been granted, it would appear that the constraint on further subdivision is specifically imposed to prevent further fragmentation of the property and the further proliferation of houses thereon. Preventing these things is entirely in accordance with sound rural planning as it is to be inferred from the existing controls and as may be read in the existing relevant planning policies and purposes. I made that observation in the course of the hearing, noting that I had not heard the case in relation to the merits, and that there may be evidence, argument or considerations that would displace this prima facie impression. However, it may be of assistance to the applicant to be aware that, on the basis of the material presented in these cases, there would be appear to be only the bleakest possibility of the applicant persuading the Tribunal that what it wants should be allowed on the merits.

25. Mr Cutis referred me to s. 178 PE Act. That section was also referred to in the 2002 decision. In fact all the sections in Division 2 of Part 9 PE Act from s. 173 to s. 184 were considered at that time. As observed in 2002, s. 178 does not empower this Tribunal to do anything, and the Tribunal cannot act under that section. An amendment under that section can only be achieved if the Responsible Authority and all persons who are bound by any covenant in the agreement agree with the amendment. First of all, one or some persons bound by the agreement, do not agree to an amendment. Even if he, she or they change their mind, the Responsible Authority would have to agree. I take it that, in the circumstances, the Responsible Authority stands by the requirement it imposed in the first place, namely that there should be no further subdivision of any of the lots. It is unlikely, in these circumstances, that the agreement of the Responsible Authority would be forthcoming.

26. Even if all the persons bound and the Responsible Authority were to agree, any amendment would still need the approval of the Minister. It is not apparent that such approval would be forthcoming. Even if the Minister was persuaded to be concerned in the matter, and she may not be, I would assume that she would need to be persuaded as to the merits of what is proposed. As I have said, having regard to the relevant purposes and policies in relation to rural zoned land, it is not apparent that the applicant has a case of any substance in relation to the merits.

27. It is, of course, a matter for the applicant as to whether it is worth spending more time, trouble and expense on this project.