1. In application P2611/2010, pursuant to section 149A of the Planning and Environment Act 1987, I declare that:
   1. The planning unit, which Permit No. 2006/459/A relates to, is the whole of the land in CA48A Parish of Jeetho West.
   2. Following the extinguishment of CA48A by registration of plan of subdivision PS622581H, Permit No. 2006/459/A can no longer be acted upon.
2. In application P2933/2010, the decision of the responsible authority is affirmed. Permit No. 2006/459/A is not amended.

Crown allotments 47A, 48A, 47B, 11E, 11G and 9A, Parish of Jeetho West

Application for declaration under section 149A of the Planning and Environment Act 1987

Application under section 79 of the Planning and Environment Act 1987 to review the failure of the Responsible Authority to amend an existing permit under section 72 of the Act

Environmental Significance Overlay No. 5 - Areas Susceptible to Erosion

Clause 35.07-2 - Use of land for a dwelling in the Farming Zone.

Clause 42.01-2 - Development of buildings and works having a floor area exceeding 200 square metres under the provisions of Environmental Significance Overlay Schedule 5 - Areas Susceptible to Erosion.

1. The two proceedings before me involve the complex interrelationship between two permits issued by South Gippsland Shire Council, each enabling land to be used and developed for a dwelling. I will refer to them as Permit 1 (Permit No. 2005/498) and Permit 2 (Permit No. 2006/459/A). There is a third permit for subdivision of some of the land which I will refer to as Permit 3 (Permit No. 2008/22), that also affects these proceedings. The history surrounding these permits is complex and there is confusion about what land each of them relates to.
2. Application P2933/2010 is a failure application relating to an application by the permit holder, Kerrchris Pty Ltd (Kerrchris), to amend Permit 2. The proposed amendment will:
   • Change the description of the land from CA48A to Lot 2 on PS622581H.
   • Modify condition 9(a) to delete reference to CA48A and replace with "the subject land". Condition 9(a) currently reads as follows:

9(a) Prior to the use of the dwelling commencing, the owner/applicant must construct suitable access to CA48A in accordance with the endorsed plan(s) to the satisfaction of the responsible authority.

• Delete condition 9(b). Condition 9(b) currently reads as follows:

9(b) Prior to the commencement of any works associated with the approval, the applicant must enter into an Agreement pursuant to s.173 of the Planning and Environment Act (1987) to provide for the creation of enduring legal access to Crown Allotment 9A from the Jeetho Road.

The Agreement must be registered on title, and all costs associated with the reparation and registration of the plan must be borne by the permit holder.

• Endorse new site plan based on current plan of subdivision.

1. Kerrchris represented these changes as being "procedural in nature and simply represent the final step in the restructure of the land as discussed within and approved by Council. It was always recognised that the above planning permit will need to be amended upon approval by the restructure under planning permit 2008/22."
2. Application P2611/2010 is an application by South Gippsland Shire Council for declaration that:

The extinguishment of CA48A by the resubdivision of the land and issuing of a new land title invalidates Planning Permit 2006/459/A [Permit 2] to use and develop the land for a dwelling and associated buildings (shed).

1. Whilst each of the proceedings appears to relate only to Permit 2, they cannot be properly understood without considering the relationship between Permit 1, Permit 2, and Permit 3, which subdivided some of the land, including CA48A.
2. The issues to be determined in these proceedings are:
   • Is Permit 2 (Permit 2006/459/A) invalid by reason of the resubdivision of the land in accordance of Permit 3 ?
   • Should Permit 2 be amended to reflect the new title details created by the registration of the plan of subdivision under Permit 3 ?

1. Permit 1 and Permit 2 collectively relate to crown allotments 47A, 48A, 47B, 11E, 11G and 9A, which were all owned by Kerrchris. There is an existing dwelling on CA9A. A plan of this land is included in Appendix A.

1. In 2004 an application was lodged to use and develop CA47A and CA47B for the purpose of a dwelling. Permit 1 was issued on 3 February 2006 for CA47A and CA48A to use and develop the land for dwelling. According to the delegation report, Condition 2 required that prior to the issue of a certificate of occupancy, the lots must be consolidated and a single title issued.[1] The description of the land in Permit 1 as CA47A and CA48A was the first error in this saga. These two lots are not contiguous, but are separated by CA47B. The permit application and the delegation report both refer to CA47A and CA47B, but this was wrongly recorded in Permit 1 as CA47A and CA48A.
2. This error was not identified until 2007 when the consultant for Kerrchris, Beveridge Williams, wrote to the council requesting that Permit 1 be amended so as to delete reference to CA48A and substitute reference to CA47B. CA11G was also added to "tidy up the Kerrchris land holdings generally".
3. Permit 1 was amended on 12 February 2008 (Permit No. 2005/498/A). The subject land became CA47A and CA47B Parish of Jeetho West, and CA11G Parish of Jeetho. Condition 2 was amended to require consolidation of these crown allotments prior to the issue of a certificate of occupancy.
4. On 9 September 2010, Permit 1 was further amended[2] to update the land description to PC369418 consequent upon the registration of the plan of consolidation in respect of CA47A, CA47B and CA11G (Permit No. 2005/498/B).
5. A dwelling has been constructed on the consolidated lot in accordance with Permit 1.

1. On 25 October 2006, an application was lodged for a permit to use and develop CA48A for the purpose of a dwelling.
2. At this point, Kerrchris says a further error occurred. Rather than processing the application and issuing a permit relating only to CA48A, the delegation report and Permit 2, which was issued on 11 January 2007, refer to other land in addition to CA48A, being CA9A, CA48A, CA47A, CA11E, CA11G, CA47B and VR Lease Lot 14.
3. Conditions 1 and 4 of the permit required as follows:
   1. Before the use and/or development start(s), amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided.

The plans must be generally in accordance with the plans submitted with the application but modified to show:

(a) Consolidation of the land (Crown Allotments lots 47A, 48A, 47B, 11E, 11G and 9A Parish of Jeetho West), which will result in no more than two allotments.

(b) The plan of consolidation must demonstrate independent access to the satisfaction of the Responsible Authority for both lots to a formed government road.

1. Prior to any use of the dwelling commencing the Crown Allotments 47A, 48A, 47B, 11E, 11G and 9A Parish of Jeetho West, must be consolidated into two (2) allotments only. The plan must then be registered with the Land Titles Office to the satisfaction of the Responsible Authority.

16 Kerrchris says that the council's planning file and the officer's report do not indicate why Permit 2, when it was first issued, contained conditions that required consolidation of all of these crown allotments. It speculates that this may have been due to a fault in the council's computer system, which when a permit application is lodged, automatically aggregates all of the contiguous titles in the same ownership as the "tenement".

1. However, this appears to be at odds with the delegation report, which states as follows:

Further information was requested requiring the applicant to submit details on how the dwelling on the adjoining lot will gain access onto a government road once the lot subject to the application is sold off (as was stated in the report). This is due to the existing dwelling only gaining access onto a road by way of a driveway constructed over the subject lot. This was received and considered adequate, however plans will be required.

Condition 1 of this permit will require the applicant submit plans showing how both the existing dwelling, and the proposed dwelling, will achieve access onto a government road. A condition will also request that all the lots (as the owner owns three lots as well as a unused road reserve title) be consolidated into 2 allotments only (both containing dwelling).

1. The reference to the dwelling on the adjoining lot refers to the existing dwelling on CA9A, which obtained its access across CA11E and CA48A to Jeetho Road.
2. There is a further problem with Permit 2 and the land it relates to because it also includes the land in Permit 1, being CA47A, CA47B and CA11G.
3. In 2007, this error was identified by the consultant for Kerrchris, Beveridge Williams. This resulted in Permit 1 being amended (see above) and also saw the following amendments being made to Permit 2 on 11 February 2008 (Permit No 2006/459/A):
   • Description of the land amended to CA48A Parish of Jeetho West.
   • Condition 1 deleted, which had required consolidation of the land into no more than 2 allotments with access for both lots to a formed Government road.
   • Condition 4 deleted, which had required consolidation of the land into two lots before any use of the dwelling commenced.
   • Condition 9 amended to include a requirement for a section 173 agreement to create legal access for CA9A from Jeetho Road.

1. On 18 January 2008, an application was lodged to subdivide CA48A, CA9A and CA11B into two lots. Permit 3 (Permit No 2008/22) was issued on 28 March 2008. Again, errors were made in the grant of the permit. Rather than issuing a permit relating only to CA48A, CA9A and CA11B, the permit refers to additional land, being CA9A, CA47A, CA48A, CA11B, CA11G, CA47B and VR Lease Lot 14.
2. The permit allows land to be subdivided in accordance with the endorsed plans. (It does not refer specifically to a two lot plan of subdivision). Condition 5 requires a section 173 agreement that the land will not be further subdivided so as to increase the number of lots.
3. The plan of subdivision certified under Permit 3 does not include CA47A, 47B and 11G. It subdivides CA48A, 9A and 11B into two lots each having a frontage to Jeetho Road. Lot 1 includes the existing dwelling. Lot 2 is vacant, but encompasses the area anticipated for the construction of a dwelling under Permit 2.
4. This plan of subdivision has been registered (PS622581H) and the titles for the former crown allotments, CA48A, CA9A and CA11E, have been cancelled.

1. In late 2007, David Wanless, a neighbouring landowner, made two applications[4] under section 89 of the Planning and Environment Act 1987 to cancel or amend Permit 1 and Permit 2 on the basis that he was a person entitled to be given notice and had not been given notice of the permit applications. Ultimately, both his applications were unsuccessful. However, during the course of the proceedings, the discrepancies regarding the description of the subject land in each permit were identified. The Tribunal was requested to amend the permits to address these discrepancies, but declined, saying:

[14] At the hearing, [the council] noted a number of inconsistencies in the permits that had issued, most notably an ambiguity in the land description and the titles requiring consolidation in order to give effect to the permits. He suggested that I might use the s 87 process before me to amend the permits, and provided a draft. [Kerrchris] indicated that it would be open to the permit holder to use the s 72 process to seek these amendments, and Mr Wanless expressed no view on this issue.

[15] I do not believe I should amend the permits 'on the run' in this proceeding. The amendments are at least arguably of some consequence. Given the ambiguity in the two permits, the permit holder will need to seek an amendment under the normal processes. Depending on the process and the extent of amendment sought, it may be that notice of the application for amendment will need to be given to adjoining owners and occupiers.

1. Permit 1 and Permit 2 were both amended in February 2008 subsequent to the Tribunal's order in Wanless, which was dated 20 November 2007. I do not know if any notice was given to Mr Wanless or any other persons about the proposed amendments.

1. It is against this background that Kerrchris seeks to amend the land description in Permit 2 from CA48A to Lot 2 on PS622581H and to modify condition 9 of the permit. Modifying condition 9(a) simply relates to the construction of access to the land from Jeetho Road. Deleting condition 9(b) would remove the requirement for a section 173 agreement to provide for the creation of access to CA9A from Jeetho Road. Kerrchris says that condition 9(b) is now redundant given registration of the plan of subdivision under Permit 3.
2. After tracing the history of these permits and considering the relevant permit applications, officer reports and correspondence, I have concluded that the various mis-descriptions of land in Permits 1, 2 and 3 when they were first issued, were errors. I am satisfied that the following is what was intended by the council when it first issued these three permits.
   • Permit 1 was intended to grant a permit for a dwelling on CA47A and 47B subject to consolidation. The permit was subsequently amended to include CA11G in the consolidation. The permit has been given effect to through registration of a plan of consolidation of CA47A, CA47B and CA11G and construction of a dwelling.
   • Permit 2 was intended to allow the construction of a dwelling on CA48A subject to the consolidation and resubdivision into two lots of CA48A, CA9A and CA11E. I find that it was not intended to include the land in Permit 1 (CA47A, CA47B and CA11G) in this permit.
   • Permit 3 was intended to allow the two lot subdivision of CA48A, CA9A and CA11E, which was a condition of Permit 2 before it was amended on 11/2/2008. I find it was not intended to include the land in Permit 1 (CA47A, CA47B and CA11G) in this permit.
3. What has occurred is that Permit 1 and Permit 3 have both been acted upon. Permit 2 has not been acted upon, although the intent of the original condition, which was to require the resubdivision of CA48A, CA9A and CA11B into two lots to ensure access for the existing dwelling on CA9A to Jeetho Road, has been implemented by Permit 3. No dwelling has been constructed pursuant to Permit 2.
4. The question that now arises is whether it is possible to act on Permit 2 without amending it as Kerrchris seeks to do by amending the description of the subject land.
5. When Permit 1 and Permit 2 were granted, the land was in a Rural Zone. Since then, the land has been rezoned to a Farming Zone, where there is a greater policy restriction against the use of land for a dwelling on lots less than 40 hectares. CA48A had an area of approximately 21 hectares. The new title for Lot 2 PS622581H has an area of approximately 30 hectares. Both parcels are less than the minimum area of 40 hectares. The council says that it is likely a new application for a dwelling on the land in Permit 2 would be recommended for refusal under the current provisions of the planning scheme if the application was made on the same basis as the original application, which was for a dwelling in support of extensive animal husbandry (grazing).

1. Whilst I am satisfied that Permit 2 (as amended) now reflects both what was applied for and what the council intended to approve, I find it can no longer be acted on due to the subdivision of CA48A pursuant to Permit 3.
2. Permit 2 authorises construction of a dwelling on CA48A. This land no longer exists as a separate entity. I reject the submission by Kerrchris that the planning unit for the dwelling authorised by Permit 2, in terms of the building envelope for the proposed dwelling, still exists as part of Lot 2 PS622581H. There is no building envelope on the registered plan of subdivision or on the title to Lot 2. There is nothing in Permit 2 that ties the location of the dwelling to the site proposed when the permit application was made. There have been plans endorsed under the permit, which show the site of the dwelling on that part of CA48A which is now contained in Lot 2 PS622581H, but the conditions of the permit do not specify this. The endorsed plans show the location of the dwelling in respect of CA48A, not in respect of any other land.
3. Kerrchris argues that a planning permit does not have to follow title boundaries or any other boundary. A permit applies to a defined piece of land, commonly referred to as the planning unit, and the planning permit application itself and the permit that is issued consequent upon that application defines the land to which it applies. Kerrchris says that a subsequent resubdivision of land cannot change the land to which the permit applies. The permit allows the land described as CA48A and drawn in the endorsed plans to be used and developed for a dwelling in the manner endorsed by those plans. Properly construed, the permit allows the use of the land identified in the permit for the purpose of a dwelling. Kerrchris says that the subsequent subdivision of the land does not change that position and if the permitted dwelling was constructed, then the land identified in the permit is then being used for the purpose of a single dwelling in accordance with the permit.
4. I agree with Kerrchris that the planning unit to which a permit relates does not always have to accord with the title boundaries of a parcel of land. However, what constitutes the planning unit in any particular case is a question of fact. With respect to Permit 2, I find that the planning unit is the whole of CA48A. I do not accept that it is only the site shown on the endorsed plans as the location of the dwelling. I base my finding that the planning unit for Permit 2 is CA48A on a consideration of the permit application, the planning officer's report and the history of the permit set out above. In particular, this finding is based on my earlier finding that what the council intended to do in Permit 2 was to give approval for the use and development of a dwelling on CA48A subject to securing access for the existing dwelling on CA9A to Jeetho Road.
5. The situation, which has arisen, is not dissimilar to that which Member Cook warned against in Brewster v South Gippsland SC[5]. That proceeding was an application for declaration about whether it was possible to grant a permit for a subdivision in a particular case having regard to the amendments to the planning scheme made by Amendment C48. The applicant also had a planning permit allowing part of the land proposed to be subdivided to be used and developed for a dwelling. The permit had not yet been acted upon. Part of the declaration related to the impact which the grant of the subdivision permit might have on the ability to carry out use and development of the land for a dwelling pursuant to the existing planning permit. Member Cook noted that the proposed two lot subdivision was not prohibited by the South Gippsland Planning Scheme, but that the existing planning permit for a dwelling on CA19C would not be able to be acted upon in its current form if the subdivision was approved and carried out because the land for which the approval had been granted would no longer exist.
6. I do not accept the council's contention put forward in its application for declaration that the extinguishment of CA48A by the resubdivision of the land and issuing of a new land title invalidates Permit 2. The permit was validly issued and has not yet expired. However, the opportunity to act on it has been superseded by the voluntary actions of Kerrchris in undertaking the subdivision allowed by Permit 3 and by the extinguishment of CA48A. Because CA48A no longer exists as a planning unit, it is not possible to construct a dwelling on this parcel of land in compliance with the permit. The only way in which a dwelling can now be constructed is if the permit is amended or a new permit is granted.
7. This leads me to the question of whether Permit 2 should be amended.

1. I am not prepared to amend Permit 2 in accordance with the application by Kerrchris for the following reasons.
2. Since the permit was initially granted, the planning controls and planning policy have changed. Permit 2 was issued on 11 January 2007 when the land was in a Rural Zone. In July 2007, all land in the Rural Zone was rezoned to the Farming Zone[6]. This changed the objectives and decision guidelines of the zone affecting the land. In May 2009, the planning scheme was amended by Amendment C48, which prohibited the grant of a planning permit on a lot that did not comply with the zone minimum (40 hectares). This meant that use and development of the land for a dwelling on CA48A was prohibited. In April 2010, the planning scheme was further amended by Amendment C51 so as to, in part, reverse the effect of Amendment C48. Some discretion was restored and a new Rural Dwellings Policy was introduced into the South Gippsland Planning Scheme as clause 22.08.
3. In my view, any proposal to use and develop what is now Lot 2 PS622581H should be assessed on the basis of the current suite of planning controls and planning policies that apply to the land.
4. The decision by Kerrchris to subdivide the land under Permit 3 was not a condition that needed to be complied with under Permit 2 following its amendment on 11 February 2008. This amendment deleted conditions 1 and 4 of the permit, which required consolidation of the land in CA47A, CA48A, CA47B, CA11E, CA11G and CA9A into two lots. All that Permit 2 (as amended) required was a section 173 agreement to provide for the creation of legal access to CA9A from Jeetho Road. It was not necessary in order to comply with this condition to undertake the subdivision authorised by Permit 3. To proceed with the subdivision, as opposed to creating an easement of carriageway for CA9 across CA48, was a decision made voluntarily by Kerrchris, but it was a decision that had particular planning consequences for the status of Permit 2 by removing the ability to act on the permit.
5. I also consider that the history of Permit 2, in terms of the confusion about the land to which this and Permit 1 related to, and what occurred in the Wanless case is a further reason for requiring a fresh look at this dwelling proposal and for ensuring that proper notice is given under the Planning and Environment Act 1987.

1. I am not prepared to make the specific declaration sought by the council in application P2611/2010, but I will make an alternative declaration that Permit 2 is not now able to be acted upon.
2. I am not prepared to amend Permit 2 (Permit No 2006/459/A). Any proposal to use Lot 2 PS622581H must be the subject of a fresh permit application, which will need to be determined on its merits pursuant to the current controls, policies and decision guidelines in the South Gippsland Planning Scheme.
3. Finally, I consider the errors, which have occurred throughout the history of Permit 1, Permit 2 and Permit 3, are a poor reflection on the attention being paid to detail by both the council and the consultants for Kerrchris. Early identification of the errors in the description of the subject land in respect of each of the permits and their correction under section 71 of the Planning and Environment Act 1987 could have avoided much of the confusion that has surrounded this saga. If there is an error in the council's computing system, as suggested by Kerrchris, then it is a matter that the council needs to address in order to avoid similar problems in the future.

[1] This was because the proposed dwelling was sited across the boundary of the lots.

[2] Under section 71 of the Planning and Environment Act 1987, which allows a responsible authority to correct mistakes in a permit.

[3] Wanless v South Gippsland SC [2007] VCAT 1886 & [2007] VCAT 2224

[4] Application P1462/2007 in respect of Permit 1 and application P1463/2007 in respect of Permit 2.

[5] [2009] VCAT 2113