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[2001] VCAT 402
appellant. Application for Review allowed; decision of the Responsible Authority set aside; consent granted pursuant to section 44(5) of the Subdivision Act 1988 to remove the restriction requiring that unit...
VCAT allowed Holland Bond's review of Boroondara Council's refusal to consent to removing a title restriction preventing sale of Unit 8 unless sold with a car parking lot. The Tribunal granted consent under s 44(5) of the Subdivision Act because removing the restriction would not change the physical number or arrangement of car parking on the site, and therefore would not undermine orderly planning or contravene relevant planning policy in the circumstances (Reasons [9]–[11]).
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Holland Bond Pty Ltd sought the written consent of Boroondara City Council under s 44(5) of the Subdivision Act 1988 to remove a restriction from the title of Lot 8 on a strata plan. The restriction, imposed at the time the strata plan was registered in 1980, prevented dealing in a dwelling lot (lots 1–12) unless that dealing included an accessory car parking lot (lots 13–24) (Reasons [4]; Schedule 2 cl 6 effect described at Reasons [3]). Council refused consent by letter dated 30 September 1999, citing the need to ensure adequate on-site parking in accordance with Clause 19 of the Boroondara Planning Scheme and Council's car parking policies (Reasons [4]).
4 cited instruments linked from this judgment.
The applicant applied to VCAT under s 40(5) for review of Council's refusal. Evidence and submissions established the following factual matrix: the three-storey building contains 12 flats; the registered plan created 12 parking lots plus common property parking; a carport was later constructed over five rear spaces and two common-property spaces; 11 of the 12 units were sold (each accompanied by one of the accessory parking lots) leaving Lot 8 with no accessory lot; the applicant proposed to allocate two body corporate car parking spaces (licences) to Lot 8; and there would be no physical reduction in on-site parking if consent were given (Reasons [4], [9]).
VCAT (Member G.J. Sharkey) allowed the review and set aside Council's refusal, granting consent under s 44(5) to remove the restriction on Unit 8 (Order; Reasons [11]). The Tribunal's primary grounds were that the removal would not change the physical provision of car parking on site, and that applicable planning policy did not require refusal in the factual circumstances (Reasons [9], [10], [11]).
Statutory framework and mandatory considerations
The Tribunal proceeded on the established statutory framework. Section 44(5) allows amendment of a strata plan to remove a restriction with the written consent of Council; s 40(5) permits review of a refusal (Reasons [1], [2]). Section 41B requires the Tribunal, when determining an application under the Subdivision Act (other than s 39), to take into account any relevant planning scheme and, where appropriate, have regard to any scheme or amendment not yet approved by the Minister (Reasons [2]). Schedule 2 cl 6 of the Act was identified as prescribing the legal effect of a restriction that attaches to a strata lot in relation to registration of dealings (Reasons [3]).
Application of policy to facts
Council relied on the Boroondara Planning Scheme, including the Good Design Guide for Medium Density Housing and Clause 22.03 (Car Parking Policy), advancing a planning objection that removing the restriction would be contrary to proper and orderly planning because it would undermine the allocation and provision of car parking on the site (Reasons [3], [5]). The Tribunal acknowledged these materials are relevant under s 41B (Reasons [2], [7]).
However, the Tribunal's decisive factual finding was that granting consent would not change the physical number or arrangement of on-site car parking. Lot 8 currently lacks an accessory parking lot but occupants apparently use common-property Body Corporate spaces; if Lot 8 were sold it would simply continue to rely on those Body Corporate spaces, and the applicant proposed to allocate two licences for those spaces to Lot 8 (Reasons [9]). Given that physical parking would not be diminished, Tribunal concluded the planning policy objective of ensuring adequate on-site parking would not be defeated (Reasons [10]).
Weighing statutory policy and practical outcome
The Tribunal balanced the policy importance of maintaining parking allocation with the practical reality that nothing physical would change. It recognised Clause 22.03's policy aim that 'where an existing development is being subdivided or sold, the parking provision of each subdivided unit comply with this policy' (Reason [10]). Nevertheless, because the sale of Lot 8 without an accessory lot would leave the parking provision on site unchanged and future occupiers would continue to use Body Corporate spaces, the Tribunal concluded orderly planning would not be compromised and thus consent could appropriately be granted (Reasons [9], [10], [11]).
Ancillary observations
The Tribunal made observations about equitable blame and procedural alternatives: Council argued the present predicament stemmed from the owner's prior sales decisions; Tribunal noted the owner had statutory options under s 32 (unanimous body corporate procedures) and related avenues (Reasons [4], [5]). These observations were expressive of factual and equitable context rather than determinative legal principles for future cases.
Before this decision
The statutory scheme was clear: a restriction recorded on a strata lot pursuant to the Subdivision Act has statutory force, and s 44(5) requires Council consent for removal. The Tribunal's general duty under s 41B to take into account planning schemes and policies when determining applications under the Act was likewise settled. Council policies such as Clause 22.03 reflect local expectations about parking allocation. Prior to this judgment, one would expect a Council to resist removal of restrictions that ensured a one-to-one correlation between dwellings and parking where the policy objective was to maintain allocated on-site parking.
After this decision
Holland Bond establishes that the Tribunal will approach a s 44(5) consent application with fact-sensitive analysis. The key post-decision point is that compliance with planning policies is not an automatic veto on removing a restriction; rather, the Tribunal will assess whether removal would produce material adverse planning outcomes in practice. If removal would not change the physical provision of required amenities (here parking) and it would not, in practical terms, undermine the policy objective, the Tribunal may grant consent. The judgment therefore emphasises the importance of the factual matrix, notably whether car parking numbers and access physically change, over a rigid textual application of policy prohibitions.
Reasons [9]:
Reasons [10]:
Reasons [11]:
The decision is most directly applicable where:
In such fact patterns, Holland Bond supports the Tribunal granting consent where the policy objective is not frustrated in practice.
This judgment is a VCAT decision. The reasons do not cite any subsequent case law nor record subsequent appellate treatment. The judgment itself does not purport to overrule or modify prior authorities; it applies the Subdivision Act and planning scheme policies to the facts. Practitioners should therefore treat this decision as persuasive in like factual circumstances at VCAT and as reflective of the Tribunal's approach to balancing statutory policy against practical outcomes. If relying on Holland Bond in later matters, a practitioner should check for any subsequent VCAT or court decisions that cite or distinguish it, noting that the authority is fact-sensitive and its force in different factual matrices may be limited.
Scope of "orderly planning" test:
Treatment of allocation by licence:
Interaction with clause 22.03 where policy language is mandatory:
Precedential weight and appeals:
Cumulative and precedent effects across precincts:
Practical takeaway for practitioners: when seeking removal of a restriction under s 44(5), assemble an evidence-led factual case showing no net loss of physical amenity (parking), and explain how planning policy objectives are satisfied in practice. Conversely, Council opponents should prepare evidence of material practical impacts or broader amenity consequences if policy text alone is to be relied upon.
PLANNING LIST APPLICATION NO. 2000/87804
Planning, Subdivision Act 1988, Parking, Accessory Unit, Restriction, Removal of Restriction, Written consent refused, Application for Review, Allowed.
It is ordered that the Application for Review is allowed, and the decision of the Responsible Authority is set aside. Consent is granted, pursuant to section 44(5) of the Subdivision Act 1988, to remove the restriction requiring that unit 8 be sold in conjunction with an accessory car parking lot.
For the Responsible Authority: Mr J Rantino, Solicitor of Maddock, Lonie and Chisholm, Lawyers. Mr Rantino was assisted by Ms S Stewart, Subdivision Officer for the Responsible Authority.
For the Applicant for Review Mr R Easton, Consultant Planner of Easton Consulting.
1. This is an Application under Section 40(5) of the Subdivision Act 1988 ("the Act") brought by Holland Bond Pty Ltd ("the Applicant") for review of a decision of the Boroondara City Council ("the Responsible Authority") to refuse to provide written consent to the removal of a restriction from a lot on a Plan of Strata Subdivision.
2. Mr Rantino, in his written submission for the Responsible Authority, set out the relevant provisions in the Subdivision Act as follows:
"Section 44(5) of the Act provides that:
With the written consent of the Council, the owner of a restricted lot on a plan of strata subdivision or a restricted lot on a plan of cluster subdivision may apply in the prescribed form to the Registrar to remove the restriction and the Registrar may amend the plan in accordance with the application and on the amendment of the plan the notice ceases to apply to that lot.
Section 40(5) provides:
An applicant under section 44(4A), (5), (5A) or (5B) may apply to the Victorian Civil and Administrative Tribunal for review of a refusal of the Council to consent to the application.
Section 41B provides:
In determining an application under this Act (other than an application under section 39) the Victorian Civil and Administrative Tribunal must -
(a) take into account any relevant planning scheme; and
(b) where appropriate, have regard to any planning scheme or amendment adopted by a planning authority under the Planning and Environment Act 1987 but not, as at the date the application is determined, approved by the Minister; and
Section 46 of the Act, headed "Strata and cluster plans" provides that:
Schedule 2 has effect with respect to registered plans of strata subdivision, registered cluster plans, plans of redevelopment within the meaning of the Strata Titles Act 1967 and plans of cluster redevelopment within the meaning of the Cluster Titles Act 1974.
If a strata or cluster plan or strata or cluster management plan contains a notice of restriction, the Registrar must not -
(a) register a transfer, mortgage, charge, lease or sub-lease of a restricted lot on the same plan unless that dealing includes a car park lot; or"
"According to section 41B of the Act, the Tribunal is required to take into account the Boroondara Planning Scheme. The Scheme includes the Good Design Guide for Medium Density Housing ("the Good Design Guide") and Council's local policy on car parking.
Section 32 of the Act provides, so far as is relevant:
(1) If there is a unanimous resolution of the members, a body corporate may proceed under this section to do one or more of the following -
(i) create, vary or remove any easement or restriction
"The subject land is located on the north side of Victoria Road, approximately 73 metres east of Freeman Street. The site is occupied by a 3 storey building containing 12 flats and associated car parking. The site is approximately 61 metres deep and 20 metres wide. The flats have recently been refurbished (see photos).
On 16 December 1971, the Hawthorn City Council issued planning permit 303 to "have buildings and works erected thereon comprising three storey, twelve flats, in accordance with the attached plan and to be used for the purpose of flat". This permit was acted upon and the development of the subject land reflects this permit save for a subsequently issued permit for the construction of a car port over the car parking spaces at the rear. The officer's report described the proposal, as relevant, as follows:
The proposal comprises of 3 storey structure containing 8 two bedroom units 750 square feet each and 4 one bedroom flats 620 square feet having private balconies in favour of the foremost units only, with parking below the rear portion of the building for 7 vehicles and a further 9 car spaces provided externally resulting in 16 spaces for the twelve flats.
On or about 21 April 1980 the Hawthorn City Council approved the plan of strata subdivision and this plan was registered at the Titles office on 4 June 1980. The Plan of strata subdivision created 24 allotments and common property. Twelve of the allotments (Lots 1 to 12) were the dwellings in the existing building and the remaining twelve allotments (Lots 13 to 24) were created for car parking spaces. Seven of the car parking spaces were provided at ground floor level underneath the existing building and the remaining five were provided at the rear of the site. Two of the seven car parking spaces required to be provided at the rear of the site under planning permit 303 were, therefore, provided in common property. The two car parking spaces to the eastern boundary are also located within the common property area.
As part of the approval of the subdivision, a restriction was placed on the titles issued. Lots 1 to 12 (the dwelling allotments) are restricted. The effect of the restriction is discussed in greater detail below, but in short the restriction prohibits the registration of dealings in Lots 1 to 12 without an accessory (car parking) allotment (i.e. without one of Lots 12 to 24).
By planning permit BOR/98/01373 issued by the Boroondara City Council ("Council") on 23 February 1999 the five rear car parking spaces (private allotments) and the two common property car parking spaces were covered by a car port structure.
By letter dated 3 September 1999 to Council, The Darnley Group requested Council's consent for the removal of the restriction from the title of Unit 8.
By letter dated 30 September 1999 Council advised Darnley Group that:
The restriction on the Title of the above mentioned property is to ensure adequate on-site car parking for each dwelling as required under Clause 19 of the Boroondara Planning Scheme. Therefore, Council is very unlikely to support the removal of the restriction from Title with regard to Unit 8.
If you wish to proceed with the proposal you are required to contact a licensed land surveyor to prepare a plan under Section 32 of the Subdivision Act.
It is our understanding that this application has arisen because:
* Easton's client owned the whole of the property at the time of the refurbishment of the flats and the development of the rear car port area.
* 11 of the 12 dwelling units have since been sold.
* All accessory lots (lots 13 to 24) have been sold with the 11 units already sold.
* Lot 8 therefore does not have an accessory unit.
* Pursuant to clause 6 of Schedule 2 to the Act, Lot 8 can not be sold without an accessory unit (refer to the restriction on the title).
* There are two car spaces on the common property land under the car port at the rear of the site.
* Easton's client intends to allocate these two car parking spaces to Lot 8 in a sale of Lot 8 by transferring the licence which has been entered into between the body corporate and the current owner of Unit 8.
* Council does not consent to the removal of the restriction.
* A section 32 application has been lodged and approved by Council on 26 September 2000.
* A member of the Body Corporate of the subject land refuses to give consent to the section 32 Application and the Titles Office cannot register the plan unless unanimous consent is received as required by section 32 of the Act.
* the Applicant is pursuing the section32 plan through the Magistrates' Court, and
* the Applicant is seeking Council's consent, through VCAT, pursuant to section 40(5) of the Act."
"It is submitted that the application to remove the restriction should be refused on the basis that to allow the application would be contrary to proper and orderly planning principles in relation to:
* the provision and allocation of car parking on site.
The provision of car parking on site is an issue concerned not only with the effect of car parking for Lot 8, but also the provision of car parking on the site generally.
If the development approved in 1971 were assessed by today's standards then the Techniques in Element 8 of the Good Design Guide for Medium Density Housing would require the provision of 16 car parking spaces for the dwellings (12 spaces for the eight 2 bedroom units and 4 spaces for four the single bedroom units) and 2 visitor car spaces for a total of 18 car parking spaces on site.
Moreover, the Good Design Guide would be read in conjunction with Council's Car Parking Policy.
Clause 22.03 provides, as local policy, that 1.5 spaces should be provided per dwelling with 0.2 spaces per dwelling for visitors. A calculation on these ratios shows that 20.4 car parking spaces should be provided on site.
And, whilst Council's Car Parking Policy is said to apply to permit applications for change of use or development, section 41B means it is a policy that can be taken into account in relation to the application here under consideration.
According to the relevant parts of Clause 22.03-3 it is Council policy that:
"* Where an existing development is being subdivided or sold, the parking provision of each subdivided unit comply with this policy.
* The creation of separate lots for car spaces that have been provided as part of a development not be supported.
* Car spaces be either common property or be created as part of lots. An exception to this policy would only be considered if a section 173 agreement under the Planning and Environment Act 1987 were entered into, to ensure that separate car spaces creates as part of a subdivision cannot be separately leased or sold."
Currently there are 16 car parking spaces provided on site. At the time of approval of the development 16 car parking spaces were required to be provided on site. At the time of approval of the car port 16 car parking spaces were still required to be provided on site. However, the subdivision created only 24 allotments and common property - 12 dwelling units with 12 accessory car parking allotments. The additional 4 car parking allotments are located on common property.
The point being made here is that the permit granted in February 1999 to construct a car port did not add extra car parking spaces.
The fact that there is the same number of car parking spaces on the land as there were before is not the issue. Rather, as a matter of orderly and property planning, and in accordance with Council's planning policy, each dwelling should be allocated a car parking space. The calculation of car parking demand or requirements for residential developments is based on a car space to dwelling ratio. The restriction ensures that the correlation between dwellings and car parking spaces is maintained. It is submitted that the car parking ought to be spread across all of the dwellings and that the provision of car parking on site for dwellings is a fundamental planning principle.
The removal of the restriction from the Title of Lot 8 will result in 11 dwelling allotments on the subject land with car parking accessory lot restrictions (one dwelling unit with 2 car parking accessory lots) and one allotment, Lot 8, with no car parking.
The fact that the current owner has found himself in a bind, so far as his ability to sell Unit 8 is concerned, is not a relevant matter. It is not a relevant matter because:
* firstly, the owner brought the situation on himself by selling one of the units with the car parking space that was allocated to Unit 8,
* secondly, the owner has still the section 32 option open to him, and
* thirdly, it is not a relevant town planning matter.
Orderly planning requires consistency and certainty. The restriction that currently applies to Unit 8 imparts consistency and certainty because it makes it clear that all dealings with Unit 8 will include the provision of one car parking space. Under the planning scheme, whether it be the Good Design Guide or the local Car Parking Policy, it is clear that a certain number of car parking spaces is to be provided for each dwelling. The current restriction on Unit 8 achieves this by ensuring that, unless Council gives its consent, Unit 8 will always have a car parking space allocated to it.
This is what is meant by clause 22.03-1 when it says that "where an existing development is being subdivided or sold, the parking provision of each subdivided unit comply with this policy"."
6. Mr Easton, in his written submission for the Applicant for Review, submitted:
"In looking at the merits of the proposal it is worth first considering the consequences if no consent is given. There would be no change to the physical car parking or access arrangements on the property. Lot 8 would remain unsaleable as the Titles office would refuse to register any transfer. This would apply even if Holland Bond Pty Ltd were to be liquidated as any administrator could likewise not record any alternate owner. The same would apply if a mortgage attempted to gain possession and sell or if the Sheriff attempted to sell the property due to unpaid body corporate fees or other charge.
If consent is given then Holland Bond Pty Ltd can enter into a new contract to sell the property and the associated 2 leased spaces. Again there would be no change to the distribution of parking spaces on the site.
Under the provisions of the Good Design Guide and other planning documents there is generally only a requirement that numerical car parking numbers be achieved over an entire site. There is no requirement that the car spaces must be owned, leased or licensed. IT is common for the process of subdivision to not even be relative consideration when substantive proposals are considered.
Relevant planning and building approvals have been given by the City of Boroondara and the integrated carport covering them. Any attempt to remove these spaces and/or the car port roof would be subject to other planning action. It is likely that the Council would oppose the deletion of 2 spaces even if they were not shown as separate titles.
For the above reasons it is submitted that the removal of the Strata Titles restriction from unit 8 will not result in any reduction on site parking spaces and as such there is no reason to oppose the request."
7. Clause 22.03, Carparking Policy, applies to applications for permits for a change in use for a new development. This proposal is neither a change of use or new development. Clause 22.03-3, Policy, however, provides in part:
"* where an existing development is being subdivided or sold, the parking provision of each subdivided unit comply with this policy."
8. Mr Rantino said that if this development was being assessed now a total of 18 car spaces would be required pursuant to the Good Design Guide, and 20.4 spaces would be complied pursuant to Clause 22.03. This is not a new use or development and there are 16 on site car spaces. It was not suggested by Mr Rantino that the number of car spaces should be increased or could be increased to satisfy either the Good Design Guide or the Policy.
9. Lot 8 presently does not have an accessory lot, a car parking space, and therefore cannot be sold. If this application is allowed it would mean that Lot 8 would be sold, even though it does not have a car space. It would appear that the occupants of Lot 8 now use one of the Body Corporate car spaces. If the application is allowed and Lot 8 is sold then it would be occupied either by a new owner or a tenant. The change in ownership would not change the car parking position, and any owner occupant or tenant would rely on the Body Corporate car spaces for parking.
10. It is policy, pursuant to Clause 22.03-3, that where an existing development is subdivided or sold the parking provision of each subdivided unit comply with the policy. The provision of car spaces for the development will not change if Unit 8 is sold. I also do not consider that orderly planning would be compromised if Unit 8 is sold without an accessory unit, because the situation will be the same as before, ie. that the future owner/occupants or tenants of Unit 8 would rely on Body Corporate car spaces.
11. For the above reasons this application is allowed. It is appropriate that consent be granted.
Holland Bond Pty Ltd
Boroondara [2001] VCAT 402
Application for Review allowed; decision of the Responsible Authority set aside; consent granted pursuant to section 44(5) of the Subdivision Act 1988 to remove the restriction requiring that unit 8 be sold in conjunction with an accessory car parking lot (Order).