Jefferis v South Gippsland SC [2017] VCAT 1428 (12 September 2017)

1. Planning Permit No. 2015/114 was granted by Council in 2015 for the use and development of the land for a dwelling.
2. The permit says that it relates to Lot 1 of Title Plan 229820V (Formerly Part Crown Allotment 25C), Parish of Poowong. At the time that the permit was issued, Lot 1 of TP 229820V comprised around 1.62 hectares of land in two parts (an eastern and western part) which were separated by a public road. All of this land comprised Certificate of Title, Volume 11559 Folio 991 (the Original Site).
3. Since the permit was issued, the applicant has successfully applied to the Registrar of Titles for the Original Site to be split into two separate land titles. The Tribunal understands that these new land titles were issued by the Registrar under particular legislative provisions which allow for land in one title to be divided into separate land titles without any subdivision permit being issued.
4. The new land titles continue to use the same Title Plan 229820V to describe the land to which they relate. However, this Title Plan has been amended so that it now shows a Lot 1 and a Lot 2. The new land titles are:
   • Volume 11590 Folio 493: which relates to land which is now shown as Lot 1 of TP 229820V and was the western part of the Original Site
   • Volume 11590 Folio 492: which relates to land which is now shown as Lot 2 of TP 229820V and west the eastern part of the Original Site.
5. The dwelling authorised by Permit No. 2015/114 is on the eastern part of the Original Site. This land is now contained in Certificate of Title Volume 11590 Folio 492 and which is described as Lot 2 of TP 229820V.
6. The applicant says that it only ever sought a planning permit in respect of the eastern part of the Original Site. The applicant says that it made this clear in its permit application and the plans of the proposed development.
7. However, the applicant agrees that Council has issued a planning permit which states that it applies to Lot 1 of TP 229820V. The applicant says that this description of the land by Council in the permit is a mistake.
8. Both parties agreed that unless Permit No. 2015/114 is amended to change the land to which is relates, it cannot be acted upon. This is because the underlying land has changed as a result of the applicant obtaining the two separate land titles. This is consistent with the decision of the Tribunal in Kerrchris v South Gippsland SC [2011] VCAT 688. As was the case in Kerrchris, the parties agree that the permit must be amended if it is to be able to be acted upon.
9. The applicant therefore applied to amend the planning permit so that it only relates to Lot 2 on TP 229820V. Council refused the application to amend the permit. It does not agree that it made an error in issuing Permit No. 2015/114 in respect of the whole of the Original Site and says that it is not appropriate for the permit to be amended so that it only applies to part of the Original Site.
10. The applicant has applied to the Tribunal to review this decision of Council.