Hassta Holdings Pty Ltd v Maroondah CC - [2007] VCAT 2445 - VCAT 2007 case summary — Zoe

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Hassta Holdings Pty Ltd v Maroondah CC

[2007] VCAT 2445

Victorian Civil and Administrative Tribunal|2007-12-21|Before: Hassta Holdings P

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At a glance

Source facts

Court

Victorian Civil and Administrative Tribunal

Decision date

2007-12-21

Before

Hassta Holdings P

Source

Original judgment source is linked above.

Judgment (102 paragraphs)

[1]

The applicant seeks the following declarations from the Tribunal[1]:
1. If the subdivision permitted by planning permit no. M/2002/792 attracts the requirements of clause 52.01, those requirements have already been met in the form of a contribution of land.
2. Clause 52.01 of the Maroondah Planning Scheme cannot be utilised to require a monetary contribution for open space in circumstances where a contribution of land has already been made.
3. The Responsible Authority's monetary demand in the sum of $77,500 for open space purportedly made under clause 52.01 of the Maroondah Planning Scheme is invalid and cannot be made in the absence of a permit condition requiring an open space contribution to be made.
4. Clause 52.01 of the Maroondah Planning Scheme cannot be utilised as a stand alone provision allowing the Responsible Authority to raise a development levy or tax.
5. Such further or other declarations which the Tribunal deems appropriate.
This case involves the provision of public open space in connection with subdivision of the subject land into 17 lots. The declarations concern the validity of a demand by Maroondah City Council for $77,500 dollars which is purported to be an open space requirement under clause 52.01 of the Maroondah Planning Scheme.
There is no dispute about the facts, rather it is the legal effect of the facts which is in issue. To understand the issues, it is necessary to set out the background and statutory provisions in some detail.

[2]

[19]

It is important to be mindful of this relationship and the overall objectives of each Act when interpreting their specific provisions. The processes which each Act establishes, especially in connection with planning permits and the subdivision of land, are complex. The smooth operation of these processes and the need for certainty attending them have significant cost implications for the whole development industry, not just individual applicants. Therefore, in approaching the interpretation of provisions, I consider that a purposive approach is necessary that will facilitate the smooth and equitable operation of the system in accordance with the intent of the legislation. Of course, this does not mean that clear provisions of either Act can be ignored because they may be inconvenient. But where there are ambiguities or the statutory provisions are silent on a particular matter, then a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) should be preferred to a construction that would not promote that purpose or object.[6]
This approach is particularly pertinent in the context of planning where the Planning and Environment Act 1987 sets out the objectives of planning in Victoria[7] and the objectives of the planning framework established by the Act[8]. There would be little point in including such objectives if it was not Parliament's intent that they be used to guide decision making and the interpretation of the Act and planning schemes.
Thus in considering whether it was open to the council to make a valid demand for payment of a contribution for public open space under the planning scheme when there is no condition in the permit requiring payment and land suitable for public open space has been set aside on the plan of subdivision, it is important to step back and examine the statutory context for public open space contributions as a whole and the legislative intention underlying that context.

[20]

A council wears various hats in the subdivision process. It acts as the council of the municipal district[9] in respect of most things it does under the Subdivision Act 1988. Section 18(1) is an exception where it specifies that the council is acting as a responsible authority under the Planning and Environment Act 1987 [10]. Thus to require a public open space contribution under section 18 of the Subdivision Act 1988, the council must be acting in its role as a responsible authority, not in its role as the council of the municipal district.
In my view, this requirement to be acting as a responsible authority has implications for the timing of making a requirement for a public open space contribution under section 18 and also for the context in which that requirement may be made. To appreciate those implications, it is relevant to look at the powers of the responsible authorities under the Planning and Environment Act 1987.
Not everything a council does or can do under the Planning and Environment Act 1987 is in its capacity as a responsible authority. A council can wear different hats under the Planning and Environment Act 1987 just as it can under the Subdivision Act 1988. It may be a planning authority responsible for the preparation and amendment of planning schemes. It may be a responsible authority. Alternatively, it may be a collecting agency or a development agency in the context of administering development contribution plans.[11]
In respect of responsible authorities, the Planning and Environment Act 1987 sets out a comprehensive code of duties, responsibilities and powers vesting in them. One of the most important aspects of this code is the power to issue planning permits. When the Planning and Environment Act was enacted in 1987, one of its hallmarks was that planning permits would represent a "one stop shop" for all conditions applicable to the use and development of land. They would include conditions required by the council (as responsible authority) and by all referral authorities.[12] The introduction of referral authorities was an innovation which contrasted to the previous state of affairs when a developer might need to obtain a range of permissions from different authorities, all requiring their own processes and not always reflecting an integrated approach to planning for the land or area in question. Hence the first objective of the planning framework established by the Act[13] is:

[26]

Section 18 of the Subdivision Act 1988 provides that the council must be acting as a responsible authority under the Planning and Environment Act 1987 when it requires the applicant to set aside land in the plan of subdivision for open space or to pay or agree to pay a percentage of site value (or a combination).
In the absence of a specific, alternative mechanism being identified in the Planning and Environment Act 1987 to require public open space, the logical mechanism for requiring it is through the planning permit process. The planning permit provides the means for setting aside land on the plan of subdivision for open space or specifying by way of a condition the percentage of site value to be paid. Importantly, the planning permit process provides a means of review in the event of a dispute between the applicant and the responsible authority as to how the public open space contribution is to be made or if an exemption applies.
The ability to review decisions of responsible authorities is a further important objective of the planning framework established by the Planning and Environment Act 1987.[14] The Act provides comprehensive opportunities to review virtually all decisions that responsible authorities must make in carrying out their duties and exercising their responsibilities, particularly in respect of the planning permit process.
Having regard to the overall scheme of the Planning and Environment Act 1987 and the planning framework established by it, there is no other suitable opportunity for making a public open space requirement under section 18 of the Subdivision Act 1988 other than at the time a planning permit is granted. In this respect, it should be noted that a planning permit is required for all subdivision in all zones in all planning schemes. It is also relevant to note that one of the decision guidelines in clause 62.02, which must be considered in respect of all applications for subdivisions is:
- The provision and location of reserves for public open space and other community facilities.
A requirement for public open space under section 18(1) of the Subdivision Act 1988 will require a decision to be made by the council. That decision will determine:
- whether or not to require a public open space contribution having regard to the matters set out in section 18(1A);
- if so, whether it should be provided by way of land, money or a combination of both;
- what percentage is required of land or site value (so long as it is not greater than 5%); and
- whether any exemptions apply.
In my view, the time when this decision must be made and the mechanism for making the requirement under section 18(1) is when a planning permit for the subdivision is granted. The council will be acting as a responsible authority when a permit is granted (which satisfies the requirements of section 18(1) of the Subdivision Act 1988); the timing accords with the purpose and objective of the Planning and Environment Act 1987 regarding the role of planning permits as a "one stop shop" and there is no other opportunity provided under the Planning and Environment Act 1987 which provides appropriate opportunities for review of the matters about which a decision is required.
The making of a requirement and its timing should be distinguished from the time when an applicant must pay an amount required for public open space, which is set out in section 18(1B), or the provision of public open space in the case of a staged subdivision, which is dealt with in section 18(2). There is a distinction is between a requirement for public open space and its provision. The requirement is subject to review through the review processes applicable to planning permits under the Planning and Environment Act 1987. Dispute resolution mechanisms relating to the provision of public open space are to be found in the Subdivision Act 1988.[15]

[37]

I take no issue with the merits of the Tribunal's decision in Tucker's case, but I do not agree with the contention that it would be acceptable to remove a condition requiring payment of a public open space contribution because the obligation would remain under the Planning and Environment Act 1987 notwithstanding deletion of the condition.[18] I disagree with the proposition that a condition should not appear in a permit "merely as a note or reminder that the obligations arise under the provisions of the planning scheme".
If such a proposition were to be accepted, it means that a planning permit could be granted without containing all the requirements applying to the particular use or development of land which the permit allows. In my view, this would be contrary to the intended role of the planning permit contemplated under the planning framework established by the Planning and Environment Act 1987, which is not just to grant permission but to document as a "one stop shop" all the requirements of referral authorities, the council and other obligations arising under the planning scheme in respect of that permission.
Section 62(1)(a) of the Act provides that a responsible authority must include in a permit any condition which the planning scheme or relevant referral authority requires to be included. There would be no need for section 62(1)(a) if the logic of Tucker's case was to prevail (i.e. that a condition should not be included in a permit where an obligation arises under the provisions of the planning scheme). The existence of section 62(1)(a) evidences a clear intention to the contrary. It is strong support for the principle that the planning permit is intended by the Act to be a "one stop shop" containing all the requirements and obligations applicable to the use or development allowed. It means that anyone relying upon the permit in the future need not look beyond the permit to ascertain what additional conditions or requirements might also apply under the planning scheme.[19]
Clause 52.01 does not specifically require a condition to be included in a permit[20]. Such a condition would be inappropriate because the responsible authority has a discretion about whether to require land or cash.[21] If land is required, then it will be shown on the plan of subdivision. It will not need to be actioned by a permit condition. A condition will only be relevant when the responsible authority decides it wants a cash payment for the public open space contribution.

[44]

The implication of this interpretation is that section 62(6) would preclude a condition being placed on a planning permit that was otherwise authorised under section 18(1) of the Subdivision Act 1988. It would not preclude the council than making such a requirement, but it could not do so using the mechanism of a condition in the planning permit. The council would presumably have to tell the developer in some other way (for example, by letter) and any dispute would need to be determined under the Subdivision Act 1988 rather than the Planning and Environment Act 1987.
In my view, such an interpretation would seem to render meaningless the words in section 18(1) which refer to the council "acting as a responsible authority". As noted earlier, the council generally acts under the Subdivision Act 1988 in its capacity as the council of a municipality. If the council was intended to act simply as a local government authority under the Subdivision Act 1988 with respect to requirements for public open space, and for any review of such requirements to be under the Subdivision Act provisions, there would be no purpose in stating so explicitly that the council's power to make a requirement under section 18(1) is as a responsible authority under the Planning and Environment Act 1987. I do not consider that interpolating the words into section 18(1) so it reads "when acting as a responsible authority" adds anything to the provision or changes its meaning, as suggested by Justice Morris in Hand's case.
Such an interpretation also appears to be at odds with the point made earlier in the case by Justice Morris that the Planning and Environment Act 1987 and the Subdivision Act 1988 must be read together:[25]: a point which was reiterated and relied upon in Fletcher's case.[27]
It is not necessary that I explore in detail the findings made in Fletcher's case as they are not relevant to this case.[28] It is relevant to note, however, that a somewhat different view appears to be expressed in Fletcher's case compared to Hand's case with respect to the role of planning permits being a record of all conditions and requirements relevant to a subdivision. Thus in recounting the history and evolution of public open space requirements in Fletcher's case, Justice Morris says:

[57]

There is nothing in this definition that would specifically require the land to be vested in the council. However, the provisions of section 20, which deal with what the council must do with public open space, are predicated on the basis of the land being vested in the council for that purpose.
This creates a difficulty in a situation such as Mutton's case and the present case where land set aside as a reserve will be used for a dual purpose, including public open space, but it is not proposed to be vested in the council. In Mutton's case, the Tribunal overcame this problem by including a condition that the proposed drainage reserve vest in the council and include a drainage easement in favour of Melbourne Water. Member Liston noted the reluctance of the council to have the land vested in it because of the cost of maintenance.
Possibly for similar reasons, the council does not seek the reserve in the present case to be vested in it. The land has been landscaped and developed to a high standard and the council may therefore be reluctant to assume the cost of maintenance to this standard. However, it seems most unfair for the council to demand an additional $77,500 for public open space when the applicant has set aside nearly 50% of the land in a reserve and paid for works and landscaping to improve it for both public open space and drainage purposes. Because this issue was not raised at the initial Tribunal hearing when the permit was granted, the applicant was denied the opportunity to have the issue of the body in whom the reserve should vest determined on its merits.
Whilst ownership of the reserve will be vested in a public authority, as distinct from private ownership, if the reserve is for the use of the Melbourne Water Corporation, it seems from the provisions of clause 52.01 of the planning scheme and the Subdivision Act 1988 that land which is set aside on a plan of subdivision as a contribution for public open space is intended to be vested in the council, not some other public authority. This may now be a deficiency in the legislation due to the increased planning preference to establish linear public open space (as distinct from small, isolated reserves); the trend for linear public open space to be located along waterways; and the dual function that such linear reserves fulfil in terms of drainage and public open space. It would be most unfair for good planning practice and public policy, which favour linear open space and public walkways along waterways, to be frustrated by councils refusing to accept plans that set aside reserves for these purposes as a contribution for public open space either under the Subdivision Act 1988 or planning scheme and instead demand payment of a cash contribution for public open space.
Nevertheless, in the present case I must determine whether the requirement for a contribution for public open space as required by clause 52.01 of the planning scheme has been met in the form of a contribution of land. My conclusion is that in order to comply with the requirements of clause 52.01, a contribution of land must be vested in the council.
In the present case, I consider that this requirement could be met by vesting the land in the reserve which is in the Residential 1 Zone in the council and leaving the balance of the land in the Urban Floodway Zone to be vested in the Melbourne Water Corporation. The reserve land which is zoned Residential 1 comprises 11.9% of the subject land and hence well exceeds the 5% requirement specified in the schedule to clause 52.01.
This may not be an elegant solution to the problem in terms of ultimate ownership and responsibility for what is, in reality, a well integrated combination of public open space and drainage functions. However, it seems to be a necessary outcome in light of the wording of the provisions of the planning scheme and Subdivision Act 1988, and the council's own actions in seeking the further payment of a contribution for public open space when such a generous contribution of land (and works) has already been made for this purpose.

Hassta Holdings Pty Ltd v Maroondah CC

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Judgment (102 paragraphs)

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Cases Cited (3)

Hassta Holdings Pty Ltd v Maroondah CC (includes Summary) (Red Dot) [2007] VCAT 2445 (21 December 2007)