For the Applicant: Mr P. Jewell, Planning Consultant

For the Objectors: Ms M.R. Hickey QC, Messrs W. Garner, P. Long and J. Kemp appeared in person

1. Mr Ashley Williams and Ms Sarah Morgan lodged Permit Application 1415/1999 with the City of Port Phillip seeking a permit for the erection of a garage with studio/storage loft on rear frontage to Albert Place as part of their residence at Lot 2, 49 Robe Street, St Kilda. The Council published a Notice of Decision to Grant a Permit dated 21 March 2000 granting the application subject to ten permit conditions. One of the 14 objectors to the proposal, Ms Maureen Hickey a member of the Inner Bar lodged an application for review with the Tribunal on 11 April 2000. The matter came on for hearing before us, together with proceeding 2000/27203, a proceeding between the same parties with respect to Council's determination to grant Permit No. 1414/1999 for demolition of outbuildings and construction of single storey additions to rear of existing three storey dwelling which development is proposed for the same address.

2. The Responsible Authority was represented by Mr Cicero of Best Hooper. Mr Jewell represented the permit applicants/proponents. Ms Hickey represented herself and three other objectors - W. Garner, P. Long and J. Kemp were in attendance.

3. At the outset of the hearing Mr Cicero invited Ms Hickey to raise and argue a legal contention which she said would render it illegal for either the Responsible Authority to grant a permit for the proposed development or for this Tribunal to direct the issue of such a permit. Ms Hickey presented her submissions in that regard in some detail. These submissions were supported by the objectors present in person. Mr Cicero responded on behalf of the Responsible Authority and his submissions were supported by Mr Jewell on behalf of the permit applicants/proponent. As it happened, the entire proceeding had been allotted to complete in a single day. Approximately one hour was lost when the Tribunal had to be reconstituted because of personal embarrassment on the part of two Members who were proposed to preside. In the event therefore, the hearing commenced at 11.00 a.m. By the time argument on the "preliminary point" concluded it was mid-afternoon. All parties agreed that even were a ruling on the preliminary point given forthwith it would be impossible to conclude the hearing on the allotted day. No party seemed enthusiastic at the prospect of proceeding to the more general planning merits without a determination upon the "preliminary point". We elected to reserve our ruling on the "preliminary point" leaving the parties to consider the most convenient course for the further hearing of the matter once the reserved ruling was published.

4. Ms Hickey noted that this proposal entails a redevelopment on Lot 2 of a subdivision which is registered as Plan of Strata Subdivision 18926 pursuant to the terms of the Strata Titles Act 1967 which was registered at the Office of Titles in accordance with the Strata Titles Act 1967 on 16 May 1983. The Subdivision Act 1988 repealed the Strata Titles Act. By virtue of Clause 2 of Schedule 1 to that Act, strata title subdivisions existing as at the commencement of the Subdivision Act ceased to be regulated by the Strata Titles Act and were thereafter regulated by the Subdivision Act. In Ms Hickey's submission the effect of Section 32 of the Subdivision Act was that a disposition of the fee simple in all or any part of any common property or the alteration of boundaries of "any land affected by the body corporate" could only be achieved by unanimous resolution of the members of the body corporate. The members of the body corporate for this subdivision were herself and the proponents. She was opposed to the development and therefore in so far as it had either of the effects referred to:

(a) there had been no purported compliance with Section 32; and

(b) in any event, she would not consent to any such thing.

5. She referred to Section 28A of the Subdivision Act which prohibited "dealings" with common property of a member of a body corporate except:

(b) under Section 32 or Section 32A; or

(c) by the body corporate in accordance with the regulations.

6. Ms Hickey observed that the proponents had not purported to adopt any of these courses as part of their proposal. Section 32A provides for consolidations and re-subdivision. This procedure entails submission of a new plan to the Responsible Authority for certification and registration of the new plan at the Office of Titles. Once again there had been no action along these lines taken.

7. Ms Hickey observed that part of the proposed development was situated on common property and the promotion and completion of that development necessarily entailed a "dealing" with common property which was apparently to be purportedly carried out without compliance with any of the requirements of the Subdivision Act 1988 already referred to. She observed that the Torrens system is a system of title by registration and therefore it would be offensive to that principle and to the overall scheme of the Transfer of Land Act and the Subdivision Act to permit or facilitate in any way a situation where the situation "on the ground" departed from what appeared in the Register kept at the Office of Titles. The substance of what this development entailed was [in her submission] an increase in the lot entitlement of the proponents by detaching common property and attaching it to their allotment - Lot 2. Such a change in lot entitlement could only be accomplished by a new plan or a consolidation and re-subdivision or else by a unanimous resolution of members pursuant to Section 33 of the Subdivision Act. Ms Hickey also relied upon the Subdivision (Body Corporate) Regulations 1989 (these regulations were extended to 16 October 2000 by Rule 3 of Statutory Rule 1999/111). The Regulations are made pursuant to Section 43 of the Subdivision Act. The Body Corporate Rules are in accordance with Regulation 407 of those Regulations, those set out in Form 2 of the Regulations, unless the body corporate has adopted different rules. Under the Strata Titles Act 1967 a similar arrangement existed whereby the rules in the Second Schedule applied to the body corporate unless other rules were adopted in lieu. There is no evidence that the body corporate of this subdivision has ever adopted any rules other than those implied by the statute or the regulations. The first of the rules in Form 2 to the Regulations is as follows:

"A member must not, and must ensure that the occupier of a member's does not -

(a) use the common property or permit the common property to be used in such a manner as to unreasonably interfere with or prevent its use by other members of occupants of lots or their families or visitors."

8. Ms Hickey submitted that to erect a permanent structure which excluded her and her invitees and licensees from part of the common property would be in breach of that standard rule.

9. In response to the suggestion that her proper remedy was in the Supreme Court, Ms Hickey submitted, first, that the Supreme Court's jurisdiction was limited or excluded by Section 52 of the Victorian Civil and Administrative Tribunal Act 1998 in these circumstances. In any event she submitted given that the Victorian Civil and Administrative Tribunal Act 1998 designated most of the Subdivision Act as a "planning enactment" the Tribunal's Planning List was a proper, appropriate and indeed preferable venue to adjudicate upon the issues which she had raised.

10. Ms Hickey referred to Section 28 of the Subdivision Act which provides in paragraphs (c) and (d) as follows:

"(c) The owners for the time being of the lot of the members of the body corporate while they are owners; and

(d) Any common property vests in those owners as tenants in common and shares proportional to their lot entitlements."

11. Mr Cicero submitted that the planning system paid no regard to issues of title. He submitted that if Ms Hickey's private property rights were indeed threatened or imperilled, the proper course was for her to take proceedings in court. Mr Cicero referred to Section 48 of the Planning and Environment Act 1987. This contemplated that a person other than the owner of the subject land could seek a permit for its use and development. The only requirement of the Section with regard to the "owner" was that either he consented to the application or else, that he had been given proper notice of the application.

12. Mr Cicero said the situation was analogous to the relationship of restrictive covenants to the planning system. Under the Town and Country Planning Act 1961 and the schemes made pursuant to its terms, restrictive covenants had no standing. An applicant could obtain a permit for a development which was in breach of a restrictive covenant so long as the "planning merits" and the relevant scheme favoured the grant of the permit. The beneficiary of the covenant threatened with breach was left to his remedy in the Supreme Court. When the Planning and Environment Act 1987 was enacted, Section 60 permitted the removal or modification of restrictive covenants. Mr Cicero stressed however that merely to obtain a permit for a development which was in breach of a restrictive covenant did not entail the covenant's removal or modification. If all that occurred was that an ordinary planning permit was granted for a development which was in breach of a restrictive covenant and no permit was given for the modification or removal of the covenant, it remained competent for the covenant beneficiary to seek the covenant's enforcement by the Supreme Court.

13. Likewise, here, according to Mr Cicero, the erection of a building partly on what is designated as common property did not, he said, amount to a "dealing" with the common property or a modification of lot entitlements within the subdivision much less the mere grant of a planning permit to do so. The terms of the subdivision, lot entitlements and so forth, the delineation of common property, remained as they were on the plan registered in 1983 which had not been the subject of any modification, consolidation or re-subdivision since.

14. Mr Cicero observed that the area of common property to be covered by the proposed development was separated from Ms Hickey's allotment by a fence. There had been a "defacto" subdivision and apportionment of common property.

15. We accept in general that in exercising the jurisdiction under the Planning and Environment Act 1987 the Tribunal is not primarily concerned with or called upon to make determinations as to title or to decide issues under the general law of property. There may however be occasions, for instance, under the declaratory power of Section 149B of the Planning and Environment Act where it is proper for the Tribunal to determine an issue of title. See for instance Calabro v Bayside City Council (1998) 1 VPR 55 affirmed [1999] VSC 509.

16. The effect of Mr Cicero's submission was that not only did the title issue raised by Ms Hickey not render the grant of a permit in these circumstances illegal but further, for the Responsible Authority or this Tribunal to consider that title issue would be to pay heed to an irrelevant consideration. Is this correct? Section 48 of the Act is headed "What if the applicant is not the owner?". The Section provides:

"1. If the applicant is not the owner of the land for which the permit is needed, an application must -

(b) include a declaration by the applicant that the applicant has notified the owner about the application.

2. A person must not obtain or attempt to obtain a permit by wilfully making or causing to be made any false representation or declaration either orally or in writing.

17. One should also note the effect of Section 57 of the Act which gives a right of objection to a permit application for use or development to "any person who may be affected by the grant of the permit". If issues of title are to be regarded as "irrelevant", why does the statute require the owner either to endorse the permit application by signing it or be "kept in the picture" by notification from the applicant. There may be instances of course where the owner of land has an interest and may be affected by a use or development in some other character, for instance as owner or occupier of nearby land; but there are ample provisions in Section 52 to 55 to ensure that an owner of the subject land would have the opportunity to be made aware of the proposed development in his character as owner or occupier of nearby land. Section 48 is enacted upon the premise that the owner of land the subject of a permit application for use or development has an interest in the character of owner in the outcome of the application and has a right to be heard in that character under Section 57 as an objector. We take the reference to "owner" in Section 48 to be a reference to the holder of the fee simple interest in land as distinct from other persons such as holders of short-term leasehold interests, purchasers under uncompleted contracts of sale, option holders and the like. So much appears from the definition of "owner" in Section 3. We may accept that the planning system is generally not directly concerned with the rights as such of "owners" of less than freehold interests or incorporeal interests in land such as persons with the benefit of easements or covenants.

18. Section 60 of the Planning and Environment Act sets out the things which a responsible authority must consider in determining a permit application. The rights of "owners" are not specifically mentioned, though a responsible authority is obliged to consider "all objections ... which it has received and which has not been withdrawn". The mechanism of Section 48 seems calculated to facilitate an owner in becoming aware of a permit application and having the opportunity to lodge an objection. A responsible authority is under Section 60(1)(b)(iii) empowered at discretion to consider "any other relevant matter". Obviously this formulation begs the question of what matters are "relevant". In our view the opinions of "owners" of a subject site are shown to be relevant by their being specifically dealt with in Section 48 of the Planning and Environment Act.

19. We therefore reject Mr Cicero's submission that the ownership issue is irrelevant. We believe that it is a proper consideration both for the Responsible Authority and for this Tribunal.

20. The material produced from the Register kept under the Transfer of Land Act 1958 shows that part of this development is proposed to be erected on land designated as "common property" under a registered plan of subdivision. The development is to be for the sole use and occupation of one only of the tenants in common. This use of the common property would in our view be in clear violation of the standard rules provided for in the Subdivision (Body Corporate) Regulations Form 2 in that it would unreasonably exclude one of the co-owners of the relevant common property from enjoyment of it.

21. Whilst the matter was not entirely clear one interpretation of what we were told is that there has been a defacto subdivision of the common property virtually since the inception of the subdivision. Ms Hickey submitted that there could not be adverse possession between co-owners. As we understand it, one co-owner has a claim against the other where the first co-owner excludes the second from possession. If that is right, this situation may have obtained for upwards of 15 years. Is it possible therefore to regard the apparent intrusion on common property as justified by adverse possession.

22. For a number of reasons we believe that this cannot be so. First, the issue of adverse possession in circumstances such as these is quite complex and the mere erection of a fence may not be sufficient to constitute adverse possession. See Riley v Pentilla [1974] VicRp 67; [1974] VR 547. Secondly the definition of "owner" to be found in the Planning and Environment Act Section 3 refers the issue of ownership to the register book kept under the Transfer of Land Act 1958. In our view, in an ordinary permit review application it would generally be inappropriate for this Tribunal to seek to "go behind" the Register on an issue of ownership. Finally (and this point is related to the previous one) the matter of acquisition of estates by adverse possession under the Transfer of Land Act is reposed in the Registrar of Titles by virtue of Sections 60 to 62 of the Transfer of Land Act. Alternatively the issue may arise in court by way of defence to proceedings based upon the Limitation of Actions Act 1958. The Administrative Division of the Tribunal exercising review jurisdiction seems to have no role whatsoever to play in these matters.

23. Ms Hickey's submission was that the issue of a permit in the circumstances described was prohibited by law and that this prohibition applied equally to the Responsible Authority and this Tribunal. What we have said already indicates that this seems unlikely to be true. Nevertheless, we are persuaded that the issues raised by Ms Hickey as to ownership are relevant to the exercise of the discretion to issue or not issue a permit. As at present advised, we regard those issues as so significant that they would in themselves justify a determination by this Tribunal that no permit should issue and that the Responsible Authority's determination should be set aside.

24. In the circumstances already explained, we will simply fix the matter for directions to consider its further conduct.