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[2018] VSCA 351
Court of Appeal (Vic)
2018-12-20
Niall JA
Original judgment source is linked above.
PLANNING AND ENVIRONMENT - Application for enforcement order in relation to plan of subdivision - Alleged contravention of planning scheme and planning permit - Where plan of subdivision registered - Whether planning scheme and planning permit impose obligations surviving registration - Leave refused - Subdivision Act ss 5, 6, 21, 22, 24 - Planning and Environment Act ss 114, 119 - considered.
PRACTICE AND PROCEDURE - Decision of Victorian Civil and Administrative Tribunal to reject application on basis of lack of jurisdiction - Whether VCAT lacked jurisdiction - Victorian Civil and Administrative Tribunal Act 1998 ss 43, 71.
PRACTICE AND PROCEDURE - Leave to appeal - Where applicant has established error - Whether applicant would suffer injustice if error were uncorrected.
1 In September 2009, the Greater Dandenong City Council ('Council') issued a planning permit for the staged subdivision of land into residential lots. A plan of subdivision was prepared, public works were undertaken for the provision of roads and drains, and the plan was subsequently registered and lots created.
2 In around 2013, the applicant, Arshad Ali Khan, acquired one of the lots on the subdivision and subsequently built a house where he and his family currently live. Over time, Mr Khan became concerned about the absence of footpaths, the width of the roads, the profile of the kerbing, the lack of road signs, and drainage. He claims that the public works, including roads and drainage, do not comply with the standards and plans endorsed on the planning permit.
3 In June 2017, Mr Khan applied to the Victorian Civil and Administrative Tribunal ('VCAT') for an enforcement order under s 114 of the Planning and Environment Act 1987 against holders of the planning permit seeking that there be an assessment of the public works by an independent consultant and requiring the taking of steps to bring the roads and infrastructure into line with the Council's Design Manual for the Subdivision of Land.
4 VCAT held that it did not have jurisdiction to entertain the proceeding on the basis that the plan of subdivision had been registered and titles issued, and neither the planning scheme nor planning permit imposed any continuing obligations that survived registration and which were capable of being enforced. VCAT rejected the application under the statutory power conferred on the principal registrar by s 71 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act').
5 Mr Khan applied for leave to appeal to the Trial Division of this Court. A judge of the Trial Division granted leave to appeal but dismissed the appeal. It is from that order that Mr Khan seeks leave to appeal.
6 For the reasons that follow, VCAT did have jurisdiction to entertain the application under s 114. However, given that Mr Khan could not obtain the relief that he sought, and any remitter would be futile, leave to appeal should be refused.
7 The legal authority to subdivide land is found in, and regulated by, a number of different Acts of Parliament and instruments made under them. Critically for present purposes, the source of authority involves the interplay between the Planning and Environment Act and the Subdivision Act 1988. In many respects, Mr Khan's case depends on treating the obligations and rights conferred by each Act as being entirely independent and capable of application in isolation from each other.
8 That approach, which is fundamental to Mr Khan's case, does not find any reflection in the text of the legislation or the relevant instruments, including the planning scheme, planning permit and plan of subdivision. As noted by Emerton J in TJBP Pty Ltd v Brown,[1] the relevant statutory framework comprises parts of both the Planning and Environment Act and the Subdivision Act and, as cognate legislation, they must be read together.[2]
9 The Council was the responsible authority for the purpose of considering and, if appropriate, granting an application for a permit for subdivision.[3]
10 By s 61 of the Planning and Environment Act, the Council was authorised to grant the permit subject to conditions of a kind identified in s 62.
11 Section 5 of the Subdivision Act provided that, subject to two immaterial exceptions,[4] subdivision of land must be done in accordance with the Subdivision Act.
12 In brief outline, the Subdivision Act provides for:
(a) the preparation of a plan of subdivision in accordance with the Subdivision Act and regulations;[5]
(b) certification of the plan by the council if the plan complies with relevant statutory requirements, including those imposed by the Subdivision Act and regulations, and requirements of the planning scheme and any permit that relate to the boundaries of roads, lots, common property and reserves and the form of the content of the plan;[6]
(c) a requirement that any person who constructs works complies with the certified plan, approved engineering plan and the standards specified in the planning scheme or permit;[7]
(d) the issuing of a statement of compliance by the council which attests to compliance with relevant statutory obligations, including the requirements under the Planning and Environment Act that relate to public works;[8]
(e) consideration of both the certified plan and statement of compliance by the Registrar of Titles who may register the plan;[9] and
(f) registration of the plan of subdivision with the consequences provided for in s 24.[10]
13 It is necessary to say something more about each of those steps.
14 Part 2 of the Subdivision Act relates to the certification of plans. Section 5(3) provides that a person who wishes to have a plan of subdivision registered must prepare a plan in accordance with the Act and submit the plan to the council for certification.
15 Section 6 provides that the council must certify a plan within the prescribed time if it meets the applicable requirements in s 6(1). One of those requirements is that the plan complies with the requirements of the planning scheme and any permit that relate to the boundaries of roads, lots, common property and reserves and the form and content of the plan.
17 Section 17 provides that a person must not commence works until the plan has been certified. 'Works' is defined for the purposes of s 17 to mean:
(a) works that are required by or for the council or a referral authority to provide roads or public utility services to the land; and
(b) are or are to be the responsibility of the council or referral authority after the maintenance period.[11]
18 Section 20A(2) provides that if works[12] are required in connection with a plan of subdivision, the applicant[13] must, not earlier than the date of completion of the works and not later than the end of one month after the date of completion, submit to the council written advice in the prescribed form by a licensed surveyor that, where appropriate, roads and reserves are marked out or defined as are the boundaries of the land in the plan, the lots and the common property.
19 It is tolerably clear from that sequence that the starting point is the certification of the plan of subdivision. The purpose of the plan is to provide the template for the division of the land into lots and the specification of the relevant boundaries. Works may commence once the plan has been certified, but not before. If works are required in connection with the plan, the council must be given written advice once the works have been completed.
20 Section 21 requires a council to issue a statement of compliance to the applicant in the prescribed form as soon as possible after the applicant gives it the prescribed information and it is satisfied that all requirements of and under pt 3 and the Planning and Environment Act that relate to public works have been met. 'Public works' has the meaning given to it in s 3 and includes the provision of roads, reserves, open spaces or services within a subdivision, and works for sewerage, drainage, water supply, power, gas or telephone to connect the subdivision to the system serving properties outside it.
21 The applicant is responsible for the maintenance of the completed works in good condition and repair for three months. After that period, maintenance becomes the responsibility of the council.[14]
22 Section 22 provides for the circumstances in which the Registrar may register a plan of subdivision. One of the circumstances in which a plan may be registered is if it appears to the Registrar that the plan has been certified by the council and the applicant provides a statement of compliance.[15] If the planning scheme or permit regulates or authorises the creation, removal or variation of an easement or restriction, the owner of the land burdened must lodge a certified plan for registration.[16]
23 On registration, any easement, restriction or other right is created, varied or removed as specified in the plan.[17] Land set aside as a road vests in the council free of any encumbrance and becomes a public highway.[18] Such land continues under the operation of the Transfer of Land Act 1958 and the council is deemed to be the registered proprietor.[19]
24 On 1 September 2009, the Council, as the responsible authority acting under the Planning and Environment Act, issued planning permit PLN07/0439.03 ('permit'). The permit allowed for the staged subdivision of certain specified land into residential lots with associated civil works, all in accordance with endorsed plans.
25 The land was described as the former Melbourne Water Dandenong treatment plant site, bounded by the Dandenong Southern Bypass to the south, Dandenong Creek to the west, Kirkham Road to the north, and 44 Keating Crescent, Dandenong South. The inclusion of 44 Keating Crescent allowed for access from the subdivision into Keating Crescent to the east.
26 The permit holder was Places Victoria as developer and Melbourne Water Corporation as land owner. The permit was subject to a number of conditions.
27 Some of the conditions on the permit informed the content of the plan of subdivision and were required to be complied with before the certification of the plan.[20] Other conditions required compliance before the commencement of works,[21] and yet others needed to be complied with before a statement of compliance was issued by the Council.[22] Given that Mr Khan's proceeding is for enforcement of the conditions, it is important to pay close attention to the text of the conditions.
28 In Mr Khan's application to VCAT for an enforcement order, he alleged contravention of conditions 9, 23, 27, 29 and 30.1.
9.1 Provision of reticulated water, sewerage and underground electricity made available.
9.2 The provision of drainage to each lot shown on the endorsed plans.
9.3 All new streets fully constructed to the satisfaction of relevant authority, in accordance with plans and specifications approved by Responsible Authority, including the provision of any traffic management devices and items required in the Traffic Impact Assessment required under this permit.
9.4 All required underground drains fully constructed and operational so as to serve all new lots, in accordance with plans and specifications approved by Council.
9.5 Pay the following to Council:
9.6 Provide original transparencies and plans in digital format, and as constructed plans of the various road drainage and infrastructure work to the Responsible Authority. The plans must also show any cut and fill that has been carried out and any alterations made to the land during construction.
9.7 The lighting of streets designed and provided in accordance with Australian Standard 1158.1 (1986). All reserves maintained and fenced to the satisfaction of the Responsible Authority.
30 The permit contained a number of conditions required by various utilities, including cl 22 (conditions required by South East Water), cl 23 (conditions required by Telstra), and cl 27 (conditions required by required by Melbourne Water Corporation).
23. Conditions required by Telstra
23.1 The plan submitted for certification must be referred to Telstra or other licensed telecommunications carrier, whichever is appropriate in accordance with Section 8 of the Subdivision Act. Telstra or other licensed telecommunications carrier, whichever is appropriate will not consent to the issue of a Statement of Compliance until such time as the applicant has provided satisfactory evidence of compliance with the above conditions.
27 Conditions required by Melbourne Water
27.1 Prior to the issue of a Statement of Compliance, the subdivider shall enter into and comply with an agreement with Melbourne Water Corporation for the acceptance of surface and storm water from the subject land directly or indirectly into Melbourne Water's drainage system and waterways, the provision of drainage works and other matters in accordance with the statutory provisions of Melbourne Water Corporation.
27.2 No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
27.3 Prior to Certification, the Plan of Subdivision must be referred to Melbourne Water, in accordance with Section 8 of the Subdivision Act 1988.
27.4 Storm water runoff from the Plan of Subdivision must achieve State Environment Protection Policy (Waters of Victoria) objectives for environmental management of stormwater as set out in the 'Urban Stormwater Best Practice Environmental Management Guidelines (CSIRO) 1999.
27.5 Prior to the commencement of works, a Stormwater Management Strategy must be submitted to the Responsible Authority and Melbourne Water for approval. The strategy must show the inclusion of permanent on-site stormwater quality works.
27.6 The layout of the subdivision is to be designed to safely cater for flows through the site.
27.7 All new lots would be required to achieve appropriate freeboard in relation to local overland flow paths to Council and Melbourne Water's satisfaction.
27.8 Prior to certification, the size of the proposed reserves adjacent to Melbourne Water's sewerage easement must be amended to Melbourne Water's satisfaction.
27.9 A legal agreement for structures/works over Melbourne Water's sewer shall be entered into with Melbourne Water. No permanent structures are to be constructed over the Melbourne Water sewerage easement.
27.10 Prior to commencement of works, Engineering plans of the subdivision (in electronic format) are to be forwarded to the Melbourne Water for comment/approval.
27.11 Prior to commencement of works, a detailed landscape management plan for the subdivision is to be submitted to Melbourne Water for approval.
27.12 Prior to commencement of works, a Site Management Plan detailing pollution and sediment control measures, must be submitted to Melbourne Water.
27.13 Prior to the commencement of works, a separate application direct to Melbourne Water must be made for any new or modified storm water connection to Melbourne Water's drains and watercourses.
27.14 All proposed lots must be filled to a minimum of 600mm above the applicable flood level.
27.15 A certified survey plan, showing levels reduced to the Australian Height Datum, must be submitted to Melbourne Water to demonstrate that Melbourne Water's conditions have been satisfied.
27.16 Local drainage must be to the satisfaction of Council.
27.17 Any road or access·way intended to act as a stormwater overland flow path must be designed and constructed to comply with the floodway safety criteria outlined within Appendix G of Melbourne Water's Land Development Manual.
27.18 The property contains a Melbourne Water underground sewer. For operational reasons Melbourne Water cannot relocate this asset. It is the developer's responsibility to avoid the inappropriate siting of a new/modified land use or development that would adversely impact upon the underground sewer. Such impacts may arise from the construction of below ground floor levels or construction activity that involves pile driving/ground anchors. The location of the underground asset may be obtained by using the 'Melbourne One Call' service, telephone 1100.
27.19 Blasting is not permitted within 20 metres of Melbourne Water's sewer main.
27.20 The Melbourne Water sewer main is a significant asset and its structural integrity MUST NOT be compromised. Construction equipment, plant or soil must not be stored over the water main or on the pipe reserve. Construction vehicles including heavy vibrating equipment must not be used over the sewer main.
27.21 Works undertaken in the vicinity of the Melbourne Water pipe track and sewer main must be to the satisfaction of Melbourne Water.
34 Finally, condition 30.1 it is in the following terms:
30.1 Civil works - according to the City of Greater Dandenong's Subdivision Design Manual.
...
35 In addition to the permit itself, there was evidence before VCAT that the Council had certified the plan of subdivision in accordance with s 6 of the Subdivision Act; the Council had issued a statement of compliance under s 21 after the completion of works; and the plan had been registered and titles issued, including the title to Mr Khan's property which he acquired subsequently to the completion of the subdivision.
36 On registration of the plan of subdivision, the Council became the deemed registered proprietor of the roads within the subdivision and the developer ceased to have any interest in the land on which the roads were constructed.[23] The permit required, however, that the developer maintain all works to the satisfaction of the Council for a period three months after practical completion.[24]
The enforcement provisions in the Planning and Environment Act
37 Section 114 of the Planning and Environment Act provides that 'any person' may apply to VCAT for an enforcement order against any person specified in sub-s 3 if a use or development of land contravenes, has contravened or will contravene a planning scheme, a condition of a permit or an agreement under s 173 (which relates to agreements between responsible authorities and land owners). 'Development' is defined to include a subdivision of land.[25]
38 Sub-section 114(3) identifies the persons against whom an enforcement order can be made. Those persons are the owner of the land, the occupier of the land, any other person who has an interest in the land, and any other person by whom or on whose behalf the use or development was, is being, or is to be carried out.
39 Section 115 identifies the persons who are entitled to notice of an application for an enforcement order.
40 Section 119 provides the form of an enforcement order that may be made by VCAT. An order must specify the use or development which contravenes, has contravened or will contravene the Act or the planning scheme, permit condition or agreement under s 173.[26] It may direct any person against whom it is made to do any one or more of the things specified in s 119(b)(i) to (iv). Those things include directing the person against whom the order is made to do specified things within a specified period to ensure compliance with the Act, planning scheme, permit condition or agreement under s 173.[27]
41 Mr Khan made three applications to VCAT in relation to the subdivision. The relevant application in this case was the third application.
42 The first of Mr Khan's applications to VCAT was issued on 17 January 2017. It sought the cancellation or amendment of the permit under s 89 of the Planning and Environment Act.
43 That application was struck out by VCAT pursuant to s 75 of the VCAT Act on the ground that the plaintiff lacked standing to bring the proceeding and because VCAT held that it could not direct the cancellation or amendment of a planning permit where the approved development was complete. In this case, the permit was for a subdivision, the Council had issued a statement of compliance, and the plan of subdivision had been registered. Accordingly, the subdivision was complete with the consequence that there was no power, so VCAT held, to amend or vary the permit.
44 On 30 March 2017, Mr Khan made his second application to VCAT, this time seeking an enforcement order under s 114 of the Planning and Environment Act. The Council was named as the respondent to the application.
45 That application suffered a similar fate to the first. It was struck out pursuant to s 75 of the VCAT Act on the basis that the Council was not a person against whom an enforcement order could be made pursuant to s 114(3) of the Planning and Environment Act.
46 By email dated 6 June 2017, Mr Khan applied again to VCAT under s 114 of the Planning and Environment Act. On this occasion, he named Places Victoria and Melbourne Water Corporation as respondents. The application was in the standard form, and alleged a contravention of cls 21.03-2, 56.06, and 56.07 of the Greater Dandenong Planning Scheme and conditions 9, 23, 27, 29 and 30.1 of the permit.
47 In addition to lodging the approved form, Mr Khan filed with VCAT a number of documents in support of his application, including a copy of the permit, a copy of an approved plan of subdivision dated 29 October 2010, and a copy of the statement of compliance issued by the Council on 7 December 2010 stating that the requirements under pts 2 and 3 of the Subdivision Act had been satisfied.
48 In summary, Mr Khan alleged the following contraventions of the planning scheme:
(a) cl 21.03-2 (achieving the vision: attractive and safe environment) - the absence of footpaths posed a risk to the safety of pedestrians and the roads constructed on the subdivision did not reflect the artist's impression images and were not attractive;
(b) cl 56.06-2 (walking and cycling network objectives) - there were no footpaths and there was inappropriate zoning and signage;
(c) cl 56.06-3 (public transport network objectives) - the roads were narrower than 5.5 m necessitating complicated turning manoeuvres;
(d) cl 56.06-7 (neighbourhood street network detail objective) - the street network did not comply with Standard C17 in relation to arterial road access management policies and drainage;
(e) cl 56.06-7 (neighbourhood street network detail objective) - the roads did not comply with Standard C20 in that (i) they were not of sufficient strength to enable the carriage of vehicles or to avoid damage by construction vehicles and equipment; (ii) they did not meet the requirements of Table C1 (design of roads and neighbourhood streets) and the Road Authority; (iii) there were no kerbs and channels for integrated water management functions; and (iv) there were inappropriate 'geometry shaped' intersections and driveways; and
(f) cl 56.07-4 (urban run-off management) - stormwater was not contained within the drainage system and there was ponding on roads for longer than one hour after the cessation of rainfall.
49 In relation to the permit, Mr Khan alleged two principal contraventions. First, he claimed that the road was too narrow, with a width of 5.24 m against a requirement in the endorsed plans for a carriageway width of 5.5 m. He also alleged that the road did not meet the criteria set out in the Council's subdivision design manual. Secondly, he alleged that the 'swale drains' on the nature strip had not been constructed resulting in flooding of the street after heavy rain.
a complete assessment by an independent consultant in consultation with the local community and make the estate in compliance with the Council's Subdivision Design Manual ... A solution must include the following but not necessarily limited to:
• Footpaths 1.5m wide one side for courts with more than 5 Lots
• Road Width Two Lane: 7 meters with parking provisions
• the applicant to be compensated for time, effort, expenses
51 On 22 June 2017, a deputy registrar of VCAT, acting as delegate of the principal registrar, wrote to Mr Khan advising that the application had been rejected on the grounds that VCAT did not have jurisdiction 'as the statement of compliance has been issued, separate files have been created in accordance with the plan of subdivision and the planning permit has been spent.' The letter referred to s 71 of the VCAT Act and advised that under s 71(2) Mr Khan could seek review in VCAT of the rejection of the application.
52 By letter dated 23 June 2017, Mr Khan wrote to VCAT seeking a review of the rejection. He contended that none of the three bases in s 71(1) which authorise the rejection of applications were applicable. He submitted that he was entitled to make the application, there were no applicable time limits, and the application did not fail to comply with the VCAT Act, regulations or rules.
53 The review of the rejection of the application was heard by Member Cook on 14 July 2017. When the matter was called, the member identified it as a matter 'involving Greater Dandenong City Council'. Mr Khan appeared for himself and a solicitor announced his appearance on behalf of the Council as a matter of courtesy (in circumstances where VCAT had advised the Council of the application). We interpolate to note that the Council was not a named respondent to the application.
54 During the hearing, the member advised Mr Khan that she would confirm the rejection of the application as, once a statement of compliance had been issued and the plan of subdivision subsequently registered, VCAT could not go behind those matters in order to determine whether there had been compliance with the planning scheme or planning permit. By order dated 17 July 2017, the member ordered that '[p]ursuant to section 71(5)(a) of the Victorian Civil and Administrative Tribunal Act 1998, the decision of the principal registrar to reject this application is confirmed due to the Tribunal's lack of jurisdiction to grant the relief sought.'
55 Mr Khan applied to this Court for leave to appeal from the decision of VCAT under s 148 of the VCAT Act. Such an appeal is limited to an appeal on a question of law.[28]
56 The proceeding named VCAT as the single defendant. At the time the matter was heard before VCAT, neither of the named respondents had been served with the application, and they did not appear before VCAT or before the judge on appeal. VCAT initially advised the Court that it would not take an active role in the proceedings in accordance with the principle propounded in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[29] However, by the time of the hearing, VCAT had provided written submissions to assist the Court and appeared by counsel in circumstances where there was no other contradictor.
57 Before the primary judge, Mr Khan submitted that he had standing to bring the application under s 114 to enforce contraventions of the planning scheme, permit and endorsed plans. He further submitted that the obligations under the permit were not 'spent', as VCAT had found, but remained in force and imposed extant obligations that were capable of being enforced under s 114 of the Planning and Environment Act.
58 Essentially, VCAT submitted that, having regard to the statement of compliance which evidenced the completion of works, including roads and drainage, and the registration of the plan of subdivision, the obligations imposed by the permit had been exhausted and VCAT 'cease[d] to have any jurisdiction to enforce it'.
59 In his reasons for decision, the judge noted that s 114 of the VCAT Act provided the power for any person to apply to VCAT for an enforcement order, that there was no time limit on such an application, and that the respondents, Places Victoria and Melbourne Water Corporation, were capable of falling within the description under s 114(3)(d) of persons amenable to an enforcement order.[30]
60 However, after referring to the decision of Emerton J in Manderson v Wright,[31] to which we shall return, the judge concluded that the permit conditions that had allegedly been contravened were conditions precedent to the issue of the statement of compliance or the commencement of construction and were not intended to survive the completion and registration of the subdivision.[32] The judge also noted that the obligations in condition 9 were to be carried out to the satisfaction of the Council and that it had issued a statement of compliance which established that it was satisfied that the relevant conditions had been met.[33]
61 The judge concluded that, pursuant to s 21 of the Subdivision Act, 'the Council having certified the plan of subdivision and issued the statement of compliance, is then conclusive evidence that the requirements under the Subdivision Act 1988 have been met' and that the 'permit is spent and was not intended to survive the registration of the plan of subdivision.'[34]
62 In the result, the judge granted leave to appeal but dismissed the appeal. It is from that order that Mr Khan seeks leave to appeal.
63 As he had done before the primary judge, Mr Khan named VCAT as the single respondent to his application for leave to appeal. Mr Khan was unrepresented before us, and, unlike the position before the judge, there was no appearance by VCAT nor by any other party.
64 In his proposed grounds of appeal (which it may be inferred were prepared without legal advice), Mr Khan makes a number of points. The first is that VCAT had jurisdiction to determine his application under s 114 of the Planning and Environment Act because he had standing to bring the application, there were no time limits on obtaining an enforcement order, and the application alleged a contravention of the planning scheme, permit and approved plan. Further, as the judge acknowledged, Places Victoria and Melbourne Water Corporation were, at least arguably, amenable to the making of an enforcement order on the basis that they were the persons by whom or on whose behalf the subdivision was carried out.
65 In his written case, Mr Khan submitted that the legislative intent of s 114 is to enable an application to be lodged against a responsible authority or other person who is alleged to have contravened a planning scheme. He submitted that the Council, as the responsible authority, was entrusted to ensure compliance by the developer with the applicable planning requirements imposed by the planning scheme and permit.
66 Mr Khan submitted there were a number of non-compliant aspects of the development, including that the developer had failed to incorporate a footpath or walkway of a width of at least 1.5 m and had failed to comply with the applicable design manual (which constituted a contravention of the permit). He submitted that the Council had been derelict in its duty when it issued a statement of compliance in circumstances where there had been non-compliance with planning rules and regulations.
67 The cornerstone of Mr Khan's submission was that the Planning and Environment Act operates independently of any other Act. On this point, he relied both in writing and in his oral submissions on a letter dated 14 June 2018 written by the Executive Director of the Planning, Building and Heritage division of the Department of Environment, Land, Water and Planning.
Section 39 of the SD Act allows an owner, an applicant, a council or a referral authority to apply to the Victorian Civil and Administrative Tribunal (VCAT) for determination of a dispute arising under the SD Act. While certification under section 13 of the SD Act is conclusive evidence that the provisions of the SD Act have been complied with, it bears no relation to compliance with the PE Act.
Enforcement orders issued under section 114 of the PE Act relate to the use or development of land - not the subdivision of land as covered by the SD Act. Therefore, disputes and certification matters under the SD Act have no direct bearing on enforcement matters under the PE Act. In this instance, neither act is subordinate to the other.
69 The reference in the letter to the 'SD Act' and the 'PE Act' are to the Subdivision Act and the Planning and Environment Act respectively.
70 Mr Khan relied on that correspondence as establishing a clear demarcation between the two Acts and submitted that the Subdivision Act was simply not relevant to an enforcement proceeding brought under the Planning and Environment Act.
71 Mr Khan further alleged that the judge only gave reasons with respect to the permit and failed to deal with the alleged contravention of the planning scheme.
72 Finally, it is noted that Mr Khan criticised VCAT's decisions to decline to entertain or to refuse his first and second applications, however, neither of those decisions was the subject of the application under s 148 of the VCAT Act for leave to appeal to this Court. Any criticism of those decisions can therefore be put to one side.
73 In a written submission filed by leave after the hearing of the application for leave to appeal, Mr Khan drew a distinction between ss 13 and 21 of the Subdivision Act. Section 13 provides that certification of a plan is conclusive evidence that the pre-certification requirements have been met. Mr Khan submitted that, by contrast, s 21 has no conclusive evidential effect. It followed from that argument that the judge erred in concluding in his reasons that, pursuant to s 21, the certification of the plan of subdivision and issuing of a statement of compliance is conclusive evidence that the requirements under the Subdivision Act have been met.[35]
74 In both his written case and his oral submissions, Mr Khan contended that VCAT had jurisdiction to entertain his application under s 114. On the question of the merits of that application, he contended that the Subdivision Act was irrelevant because he was seeking to enforce conditions on a planning permit that had been granted under the Planning and Environment Act. In our view, Mr Khan was correct on his first contention but in error on the second.
Did VCAT have jurisdiction to entertain the application?
75 For the reasons that follow, s 71 of the VCAT Act was not an available source of power to reject Mr Khan's application under s 114. That is because none of the paragraphs of s 71 were satisfied and VCAT did not lack jurisdiction to entertain the application.
76 The power exercised by the deputy registrar (as delegate of the principal registrar) in respect of the application was that conferred by s 71, which provides that the principal registrar may reject an application if the application:
77 Section 43(a) of the VCAT Act relevantly provides that the original jurisdiction of VCAT is invoked by a person who is entitled by or under an enabling enactment to do so applying to VCAT in accordance with s 67.[39] Section 67 sets out the requirements for making an application to VCAT. It requires that an application be in the form, and contain the particulars, required by the rules, be accompanied by any documents or information required by the rules, and be lodged in the manner specified.[40] Section 67(4) requires the principal registrar to give reasonable assistance on request to a person in formulating an application.
78 Section 43(a) does not identify a person who is entitled to the claimed relief but a person who is entitled by the relevant statute to make an application to VCAT. That entitlement is determined by reference to the text of the enabling enactment. The principal registrar may reject an application pursuant to s 71(1)(a) where a person is not entitled by or under the enabling enactment to make the application.
79 The application filed by Mr Khan was brought under s 114 of the Planning and Environment Act which, relevantly, confers standing on 'any person' to bring an application if a use or development of land contravenes or has contravened a planning scheme or condition of a permit. There is no warrant to read down the phrase 'any person' so as to limit it by reference to common law or statutory principles applicable to standing.[41] It follows that Mr Khan was entitled to bring an application under s 114.
80 The application alleged a contravention of both a planning scheme and conditions on a permit. As no time limit applies to an application under s 114, the principal registrar could not rely on s 71(1)(b) to reject the application.
81 Finally, the application was in a form provided by VCAT and there was nothing to suggest that the making of the application did not comply with the VCAT Act or the regulations or rules made under it.
82 It follows that none of s 71(a),(b) or (c) applied, and the principal registrar was not entitled to exercise the power in s 71 to reject the application.
83 On review before VCAT, Member Cook confirmed the decision to reject the application on the basis of 'the Tribunal's lack of jurisdiction to grant the relief sought.' The member made an order purportedly pursuant to s 71(5)(a) (which authorises VCAT to confirm the rejection of an application). For the same reason as that given in respect of the principal registrar, VCAT could not utilise that provision.
84 The reference in the reasons of the deputy registrar[42] and in the order of the member to an absence of jurisdiction requires some elucidation. The jurisdiction of VCAT is statutory and limited. In this case, Mr Khan sought to invoke the original jurisdiction of VCAT identified in s 40(a) of the VCAT Act and defined in s 41 as being the jurisdiction of VCAT other than its review jurisdiction. That jurisdiction can be invoked by a person only if he or she is entitled to make an application. Section 71 provides a basis for the principal registrar to reject an application if it is not brought by such a person. In that sense, s 71 authorises the principal registrar to decide whether the jurisdiction is properly invoked. We have already observed that, in this case, s 114 provided the authority to commence the application.
85 The deputy registrar and, on review, the member conflated the questions whether Mr Khan was entitled to bring the application[43] and whether the application complied with the VCAT Act[44] with the altogether different question concerning his entitlement to the relief that he sought. The issue confronting Mr Khan when he made his application under s 114 was not one of jurisdiction.
86 Section 75 of the VCAT Act provides a power to summarily dismiss a proceeding on the basis that it is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process. That section could be applied to dismiss a proceeding for want of jurisdiction, although the strictures that apply to summary dismissal would apply. Further, VCAT's power to make an order under s 75 can only be exercised by VCAT as constituted for the proceeding or by a presidential member or a member who is an Australian lawyer.[45] There is no evidence as to whether Member Cook is an Australian lawyer.
87 Section 75(4) authorises VCAT to make an order summarily dismissing a proceeding on the application of a party or on its own initiative. Where a party, or VCAT on its own initiative, seeks to dismiss a proceeding summarily, it is important that the nature of the application be clearly identified in a way that ensures that the opposing party is aware of the nature of the power sought to be exercised and given a reasonable opportunity to respond to it. Principle requires that a high degree of caution be exercised before a proceeding is summarily dismissed.[46] It is a power reserved for clear cases. In the present case, no such notice was given to Mr Khan and the principles that attend summary dismissal under s 75 were not referred to or considered.
88 VCAT did not lack jurisdiction to entertain the application. The application met the requirements of s 114. The application was brought by Mr Khan, who had standing to bring it, and it alleged contravention of a planning scheme and permit conditions. Such an application was within the jurisdiction of VCAT to determine. The respondents to the application, namely Places Victoria and Melbourne Water Corporation, were the persons by whom, or on whose behalf, the subdivision was carried out.[47]
89 Even if the permit did not impose any ongoing obligations or that the certification of the plan, the issuing of the statement of compliance and the registration of the plan meant that Mr Khan could not establish that there had been a contravention, those matters went to the merits of the application rather than whether VCAT had the jurisdiction to entertain it.
90 There may be some doubt as to whether the identified respondents were the proper parties given the nature of the relief sought in the application and whether the relief sought, namely the carrying out of an assessment, could be ordered under s 119 of the Planning and Environment Act. Once the plan of subdivision had been registered, the roads within the area of subdivision vested in the Council and the developer ceased to have any legal interest in that land and the relief available under s 119 is limited to orders against a contravener. Again, however, we are satisfied that those matters go to the cogency of the claim rather than the jurisdiction of VCAT to hear it. They did not deprive Mr Khan of standing to bring the application and did not mean that the application did not comply with the VCAT Act.
91 It follows that VCAT erred in rejecting Mr Khan's application. That would ordinarily entitle Mr Khan to the relief he seeks in the present application and would result in his application for an enforcement order being remitted to VCAT for hearing and determination.
92 However, Mr Khan requires leave to appeal.[48] Generally speaking, an applicant for leave to appeal must demonstrate that allowing the error to go uncorrected would impose injustice on the applicant.[49] In this case, there would be no injustice in allowing the error to go uncorrected if VCAT and the primary judge were correct in concluding that Mr Khan could not obtain the relief sought because neither the permit or the planning scheme imposed relevant continuing obligations on the developer.
93 Mr Khan's submissions before us were principally directed to the question whether the judge was correct to conclude that the conditions on the permit were 'spent' and did not impose any obligations that survived the registration of the plan of subdivision. The principal branch of Mr Khan's argument was that the judge had failed to appreciate a dichotomy between the obligations under the Planning and Environment Act and the Subdivision Act respectively.
94 Accordingly, it is appropriate to consider whether Mr Khan could obtain the relief he seeks on the grounds raised by him.
Could Mr Khan obtain the relief sought in the application?
95 In submissions before us, Mr Khan advanced the following, non-exhaustive, list of alleged non-compliances with the planning scheme and permit conditions: there are no footpaths; the roads are too narrow; the profile of the kerbs is not in accordance with the applicable design standards; the swale drains are inadequate; and there is an absence of appropriate road signage. Each of those matters concerned the quality of public works within the subdivision by reference to the standard said to have been set by the planning scheme, permit conditions and endorsed plans.
96 It is convenient to test Mr Khan's case initially by reference to his contention that the roads within the subdivision were narrower than the width required under the endorsed plans.
97 Of the permit conditions relied on in Mr Khan's application, condition 9 most clearly related to the construction of roads within the subdivision. We have set out the text of condition 9 above.[50] It provided that, before a statement of compliance was issued by the Council, the land owner must ensure that all new streets were fully constructed to the satisfaction of the Council in accordance with plans and specifications approved by the Council, including the provision of any traffic management devices and items required in the traffic impact assessment report.[51]
98 We interpolate to note that condition 17 required that, before the commencement of the proposed works, a traffic impact assessment report for the full development was required to be submitted to the Council for assessment and endorsement on the permit. That report was required to address a number of matters relating to traffic management, including internal road layout.
99 As part of condition 9, the owner was required to pay the Council a supervision fee and a fee for checking engineering plans.[52] As well, the owner was required to provide to the Council original transparencies and plans in digital format and 'as constructed' plans of the various road drainage and infrastructure work. Those plans were required to show any cut and fill that had been carried out and any alterations made to the land during construction.
100 To the extent that any obligation in relation to the creation of roads was imposed by the permit, it was an obligation imposed on the owner to undertake roadworks to the satisfaction of the Council.
101 The statement of compliance could only be issued once the Council was satisfied that all requirements under the Planning and Environment Act relating to public works had been met.[53] As noted above, the Council issued a statement of compliance on 7 December 2010 stating that the requirements under pts 2 and 3 of the Subdivision Act had been satisfied.
102 Even if it could be shown that the width of the roads created on the subdivision were narrower than as stipulated in the endorsed plans, that would not avail Mr Khan because the obligation was to do no more than undertake the works to the satisfaction of the Council.
103 Mr Khan seeks to rely on a contravention by the developer of condition 9 as a basis for an order under s 119 of the Planning and Environment Act that there be an independent assessment so as to make the estate compliant with the Council's subdivision design manual, including addressing footpaths, road width, kerbing, signage and road safety. Section 119(b)(iv)(B) authorises the making of an enforcement order directing a person to ensure compliance with the Act, planning scheme or permit.
104 The terms of condition 9, which are predicated on the developer constructing public works to the satisfaction of the Council before the issuing of a statement of compliance, simply do not allow for any revisiting of the standard of work after the statement of compliance has issued. Condition 9 does not provide for any obligations to subsist after the statement of compliance has issued.
105 The point may be tested this way. Once the certificate of compliance had issued attesting to the Council's satisfaction and the plan was registered it would not be open to the Council to contend that the construction of the roads did not reflect the terms of the permit issued under the Planning and Environment Act and ask the permit holder to fix them. To the extent that the permit holder had any ongoing obligations in relation to the standard of work, they were not to be found in condition 9. No different result can follow simply because the application for enforcement is brought by someone else.
106 Further, to allow the enforcement of a permit condition of the kind expressed in condition 9 as against the developer after title in the land had vested in the Council would conflict with the statutory scheme which provides for the subdivision of land into lots and the vesting of roads in favour of the Council free from encumbrances.
107 As noted above, the respondents to the application were Places Victoria and Melbourne Water Corporation. Those two entities were the holders of the permit and were subject to the terms of the permit in the carrying out of the subdivision. However, since registration of the plan, the roads within the subdivision are owned by the Council as registered proprietor and Places Victoria and Melbourne Water Corporation no longer have any entitlement to that land.[54] Section 119 does not authorise VCAT to make orders to remedy or restrain contraventions of the Act against persons who are not themselves in breach of the Act or permit or who, unless restrained, would be in breach of the Act or permit.[55]
108 Further, no enforcement order could be made against the Council, and no such order was sought in the present proceeding. To hold that the Council obtained the roads burdened by the permit would be inconsistent with the grant of ownership under the Transfer of Land Act which is effected by s 24(2A) of the Subdivision Act.
109 That approach does not require attributing conclusive effect to the Council's statement of compliance. As Mr Khan correctly submitted, s 13 of the Subdivision Act provides that the certification of a plan of subdivision provides conclusive evidence that the pre-certification requirements had been met but says nothing about the steps taken after certification. In this case, those steps included the construction of the public works which Mr Khan contended in his application were non-compliant with the planning scheme, permit and endorsed plans.
110 The significance of the statement of compliance in the present context is not that it provides conclusive evidence of compliance with the standards and plans endorsed on the permit, but rather that it demonstrates that the requirements under pt 3 of the Subdivision Act and the Planning and Environment Act that relate to public works had been complied with to the Council's satisfaction. It mirrored the permit obligation.
111 In Manderson,[56] conditions on a permit for subdivision included conditions providing for:
(a) the preparation and approval of a neighbourhood design plan (condition 16);
(b) the inclusion in the plan of subdivision of a restriction sheet to limit building and development to accord with the approved neighbourhood design plan and building envelopes (condition 17); and
(c) a prohibition on removing, destroying or lopping vegetation without the written consent of the council (condition 18).
112 At issue was whether those conditions imposed continuing obligations on land owners who had acquired lots on the estate after the plan of subdivision had been registered.
113 Emerton J held that conditions 16 and 17 had been implemented and were therefore 'spent'.[57] Her Honour concluded that condition 18, on its correct construction, was directed to subdivision works and not intended to survive the registration of the plan of subdivision and the creation of new titles.[58] Her Honour gave a number of reasons for that conclusion.
114 First, her Honour observed that it would be unusual to create rights in rem by way of a condition on a permit to subdivide land. Although her Honour did not rule out the possibility that such a condition might survive registration, it would give rise to fundamental questions about consistency with indefeasibility of title conferred on the lot holders. Her Honour noted that obligations in rem can be created by way of a restrictive covenant or agreement under s 173 of the Planning and Environment Act and that this course had been taken in the case before her, where the obligations in conditions 16 and 17 were reflected in restrictive covenants that burdened the title.[59]
115 Secondly, her Honour noted that to construe condition 18 as imposing an ongoing obligation relating to removal of vegetation would give rise to potential inconsistency with the creation of building envelopes in a neighbourhood design plan which contemplated the removal of vegetation without council's approval.[60]
116 Finally, her Honour noted that condition 18 could be read together with conditions 19 and 20 which were apt to address the carrying out of subdivision works rather than ongoing restrictions after the completion of the subdivision and the registration of the plan.[61]
117 Manderson does not provide authority for the proposition that a condition on a planning permit for a subdivision can never survive registration of the plan (in the sense of imposing ongoing obligations).[62]
118 Mr Khan relied on the decision of VCAT in Bayside City Council v Sullivan[63] as providing an example in which conditions on a permit for a subdivision were held to impose obligations post registration of the plan of subdivision. It is not necessary to determine the correctness of that decision. In Manderson, Emerton J identified 'a general rule' that a planning permit for a subdivision will be spent once the plan of subdivision has been registered and new titles have issued.[64]
119 Support for that general rule may be found in the decision of Morris J as President of VCAT in Cope v Hobsons Bay City Council in which his Honour recorded that it had generally been accepted in Victoria that once subdivision has been effected and new titles issued, the permit (or planning scheme) is no longer relevant and of no continuing independent force or effect.[65]
120 However, in each case, the resolution of the issue will turn on the construction of the permit, including any conditions imposed, in the context of the Subdivision Act. This is made clear by the analysis of Osborn J in Benedetti v Moonee Valley City Council.
121 Mr Khan referred to s 39 of the Subdivision Act. That provision confers jurisdiction on VCAT in relation to the determination of a dispute arising under the Subdivision Act. By s 39(2)(c), it does not apply to a dispute relating to an enforcement order under s 114 of the Planning and Environment Act. It may be accepted that s 114 might be invoked in relation to a permit for subdivision. However, that does not mean that a permit condition must necessarily survive registration or remain enforceable under s 114. As noted above, it will depend on the terms of the condition sought to be enforced. Further, it does not support Mr Khan's submission that the two statutory schemes are independent of each other.
122 The approach taken by Emerton J in Manderson applies, with the same result, to each of the conditions which Mr Khan sought to enforce by his application.
123 We have already addressed condition 9. In summary, Mr Khan was not able to enforce condition 9 as a means of obtaining the relief that he sought, nor would it provide a basis for any order directing a person to install footpaths, widen the roads, reconfigure the kerb or improve the drainage.
124 Condition 23 is set out above.[66] It is difficult to determine precisely what is meant by the condition other than an obligation to refer the plans submitted for certification to Telstra or other licensed telecommunications carriers. Even if that had not occurred, once the statement of compliance issued, it was not intended that this condition would have ongoing application. The condition could not survive the registration of the plan of subdivision.
125 Condition 27 imposed a number of conditions required by Melbourne Water Corporation.[67] Some of the obligations imposed were required to be satisfied before the commencement of works and some before the statement of compliance was issued. In our view, condition 27 was directed to subdivision works and was not intended to survive the registration of the plan of subdivision and the creation of new titles.
126 Condition 29 was required to be complied with prior to the statement of compliance being issued.[68] It required that all civil works and lighting be completed to the satisfaction of the Council and that electronic copies of the 'as constructed' subdivision design drawings and 'as constructed' schedule of quantities be submitted to the Council for record-keeping purposes. In issuing the statement of compliance, the Council attested that the civil works and lighting had been completed to its satisfaction and that the permit holder had discharged its obligation to provide the design drawings and schedule of quantities. Condition 29 was not intended to impose ongoing obligations after the statement of compliance had issued.
127 Finally, condition 30.1 required that, before construction started, design drawings were to be submitted to the Council for approval.[69] In our view, for similar reasons to those given in respect of the other conditions, condition 30.1 was not a condition which survived registration.
128 As noted above, in his application to VCAT, Mr Khan pointed to various clauses of the planning scheme which he alleged had been contravened. In his application for leave to appeal, Mr Khan submitted that the judge had failed to address the question whether the planning scheme could survive registration.
129 The provisions of the planning scheme identify the standards which informed the content of the plan of subdivision. They did not survive, in the sense of imposing ongoing obligations, after the plan of subdivision had been registered.
130 Although the principal registrar and, on review, VCAT were in error in rejecting the application under s 71 of the VCAT Act, there was no error in the judge's conclusion that Mr Khan could not have enforced, as against the developer, the provisions of the planning scheme or conditions on the permit identified by him in his application.
131 The proper course was for VCAT to have determined the application on its merits, either under s 75 or on a final hearing. However, given our conclusion that the application could not succeed, there would be no utility in remitting the application for hearing and determination.
132 In the circumstances, we will refuse leave to appeal. There will be no order as to costs.
[2] Ibid [10], citing Melbourne Water Corporation v Domus Design Pty Ltd [2007] VSC 114; (2007) 16 VR 539, 559-60 [86].
[4] Those exceptions are found in ss 4 and 44 of the Subdivision Act 1988.
[6] Ibid s 6(1)(a).
[14] Subdivision Act s 17(4), (5).
[15] Ibid s 22(1)(a), (b).
[17] Ibid s 24(2)(d).
[18] Ibid s 24(2)(b), (c).
[20] See, eg, conditions 27.3, 27.8, 32, 37.
[21] See, eg, conditions 4, 5, 17, 27.5, 27.10, 27.11, 27.13, 30, 31.
[22] See, eg, conditions 9, 21, 23, 27.1, 29, 33, 35, 36.
[23] Subdivision Act s 24(2)(b), (2A).
[27] Ibid s 119(b)(iv)(B).
[29] [1980] HCA 13; (1980) 144 CLR 13, 35-6.
[30] Khan v Victorian Civil and Administrative Tribunal [2018] VSC 549 [54]-[55] ('Reasons').
[31] [2016] VSC 677 ('Manderson').
[39] Section 43 also provides that VCAT's jurisdiction may be invoked by means of a referral under an enabling enactment in accordance with s 69 or in any other way permitted or provided for by the enabling enactment.
[41] See Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, 601 [14]-[15] (Gleeson CJ and McHugh J).
[42] Those reasons were set out in the letter from the deputy registrar dated 22 June 2017.
[43] VCAT Act s 71(1)(a) read with s 43.
[46] State Electricity Commission (Vic) v Rabel [1998] 1 VR 102.
[47] Subdivision Act s 114(3)(d).
[49] Muto v Secretary, Department of Planning and Community Development [2013] VSCA 85; (2013) 38 VR 293, 299 [26], citing Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, 337 [16] and Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, 441-2.
[55] See Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472, 489 [47] (McHugh ACJ, Hayne and Heydon JJ).
[62] See Benedetti v Moonee Valley City Council [2005] VSC 434 [30]-[37].
[64] Manderson [2016] VSC 677 [25].
[65] [2004] VCAT 2487 [44].
Khan
VCAT [2018] VSCA 351
(2007) 16 VR 539
(1980) 144 CLR 13
(2000) 200 CLR 591
(2013) 38 VR 293
(2004) 220 CLR 472