Mr. Cameron Gray, town planner of St. Quentin Consulting Pty Ltd, appeared for the applicants. He presented written and oral submissions.

Various plans and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s.81(a) of the Planning and Environment Act 1987 (PE Act) for review of a decision by the Responsible Authority refusing to extend time for commencement of a use or development under a permit.

Application under s.79 PE Act for review of the failure of the Responsible Authority to grant a permit within the prescribed time.

Extension of time for commencement in relation to planning permit P02/279 issued by the responsible authority on 22 October 2002.

Subdivision of lot 7 on Plan of Subdivision No. 328319M to create a road along its eastern boundary.

Rural Zone and subject to a Salinity Management Overlay and an Environmental Significant Overlay (Schedule 3) under the Golden Plains Planning Scheme.

Application for review P512/2005 seeking an extension of time was originally nominated as being an application under s.81(b) to review the failure of the responsible authority to extend time for commencement of use or development under a permit. In fact, the responsible authority determined to refuse the application for extension of time so that the application for review should have been under s.80(a), not s.81(b). At the commencement of the hearing an amendment was made to specify the correct sub-section. This amendment was made by consent.

1 The first of the two cases before me is McKay v. Golden Plains SC, Tribunal No. P512/2005. It is an application under s.81(a) of the Planning and Environment Act 1987 (PE Act) for a review of the decision of the responsible authority to refuse to grant a permit extending the time for commencement of a use or development under a permit. The permit concerned is permit P02/279 issued by the responsible authority on 22 October 2002. The permit relates to the land identified as Crown Allotments 23, 24 and 25 Section C Parish of Wabdallah. These are three allotments that exist side by side running from west to east and with abutments to the south side of the Moorabool River. Their areas are 4.588, 4.790 and 5.666 hectares respectively.

2 These three allotments form a parcel of land in one ownership on two Certificates of Title. Crown Allotments 22 and 23 are on a single Certificate of Title whereas Crown Allotment 25 is on a separate Certificate of Title.

3 There is an unused government road along the western side of the western most allotment, that is, Crown Allotment 23. There is another unused government road running across the southern boundary of three allotments. These roads have never been constructed or used and are subject to grazing licenses.

4 The permit that was granted by the responsible authority in 2002 pursuant to a permit application which sought planning permission for "Use of three Crown Allotments for three dwellings".

5 It is to be noted that this application was for use of the land only. No permission was sought for development. Development could be in the form of the construction of buildings or the construction of carrying out works.

6 The relevant provisions of the planning scheme at the time that permit was applied for and granted gave rise to the need for permission to use the land for a dwelling. The land is, and has at all material times been, in a rural zone under the Golden Plains Planning Scheme. The provisions in relation to a rural zone are found at cl.35.01 of the planning scheme. These provisions have remained unchanged since 27 September 2001. Thus they were in their current form at the time the permit was applied for and granted.

7 The provisions in cl.35.01 in relation to the use of land are found in cl.35.01-1, and in particular, in the table of uses found in that sub-clause. Section 1 thereof contains the uses of land for which a permit is not required. However, that situation, where a planning permit is not required, only applies if any applicable conditions that appear in the table are complied with.

8 So far as dwelling is concerned, it appears in Section 1 but subject to a condition that the lot must be at least the area specified in the schedule to the zone, or, if no area is specified, then the lot must be not less than 40 hectares. There is, in fact, a specification in the schedule, and that is for 100 hectares. Obviously each of these Crown Allotments, being in the order of 4 to 5 hectares each, are vastly less than 40 hectares, much less 100 hectares.

9 Because that condition is not satisfied dwelling becomes a section 2 use in the table. As such planning permission is required for the use as dwelling.

10 Planning permission to use the land for a dwelling on each allotment was duly applied for. However, that was not the only planning permission that would be necessary if the land was to be in fact used for dwellings. There are no buildings on the land. Buildings would be required so that the land could be used as dwellings. Clause 35.01-3 provides that a permit is required to construct or carry out buildings or works associated with a section 2 use. Thus, permission for buildings and works pursuant to cl.35.01-3 was required, in addition to the need for permission for use of the land as a dwelling under cl.35.01-1. This additional permission was not applied for.

11 It should have been. It has long been recognised in many cases, going back to and including High Court authorities, that planning permissions for what amounts to a single proposal should not be applied for piecemeal, but should be applied for together. By that means the responsible authority, the public, potential objectors and the Tribunal (if that becomes relevant) can consider the proposal and all its planning permission needs in an integrated way. Particular aspects, considered in isolation, might give rise to incongruous or inappropriate results.

12 The responsible authority, in granting the permit, purported to grant permission for use and development. By purporting to grant permission for development, in addition to use, it purported to grant permission for something where it had not been applied for. Mr. Gray, the town planner who appeared on behalf of the applicant, accepted that this was anomalous and inappropriate. In fact, it may be invalid.

13 In any event, this question of the inclusion of permission for development might be regarded as the least of the problems about this permit. If a planning permit is required for the construction of buildings and the construction of carrying out of works, then the applicant and the responsible authority must be clear as to what buildings and what works are being applied for, and if permission is being granted, then for what buildings and what works permission is being granted. That has never been clarified in relation to this permit. The matter was dealt with, in my opinion quite inappropriately, by deferring the question pursuant to the imposition of a condition requiring plans for the dwellings to be submitted to the responsible authority for approval. Two copies of the plans drawn to scale were required and this was to deal with siting and dimensions of the buildings and works to be constructed including access lanes and driveways, details of external materials and finishes including colours and also landscaping and planting proposals with details for water storage tanks and any excavations, embankments, retaining walls and treatments to beautify works and prevent soil erosion.

14 The planners acting for the applicant at the time the permit application was made, who were not Mr. Gray's firm, had suggested to the responsible authority that the nature of the development might be dealt with in such a way. Making that suggestion apparently mislead the responsible authority into a clear error. Plans required under a condition such as the one referred to are regarded as a "secondary consent" required only under the conditions. However, the planning scheme here requires a formal or primary planning consent, that is to say, a planning permit, for the proposed buildings and works. Where primary consent is required it must be applied for in the first place, and must be considered before the permit is granted. To be considered it must be ascertained as to what is in fact proposed. Here we have an attempted deferment by means of requiring a secondary consent, namely approval of plans not yet in existence, in relation to a primary permission requirement. As I have said, in my view, this cannot legally be done.

15 I might add, that no plans have been submitted to the responsible authority pursuant to that condition, much less approved.

16 So now we have serious questions about the validity of the permit because it purports to grant permission for development where that was not applied for and where the development has not been ascertained.

17 Another problem in relation to the permit is that the land is, de facto, land locked. There are no existing roads or other means giving vehicle access to the land. There are government roads, which lead by a long circuitous route to the land but they are not constructed and are currently subject to grazing licences. Questions of access need to be resolved, in my opinion, before planning permission for dwellings (use or development) is granted.

18 Although there is a government road set out on the Crown survey along the western side of Crown Allotment 32, I am advised that the topography is such that it is not a practical means of access. The unused road across the southern side of the three allotments could be, if the grazing licenses were removed and the road was constructed. However, because of the length of the circuitous route involved, such construction would be expensive.

19 In the course of the hearing various problems, including those mentioned above, were discussed. During the hearing, and towards its end, I gave my decision in relation to both these cases and gave oral reasons. My decision in relation to the extension of time case was to refuse the extension. There were a number of reasons that I gave orally and that have been recorded.

20 The muddle and confusion created by the applicant and the responsible authority in relation to the permit, together with its ambiguity and uncertainty as to whether it grants permission for development in addition to use are all reasons not to extend the permit. The permit required the development to be commenced within two years of the date of issue of the permit namely 22 October 2002. It might be regarded as a mercy by everybody, even the applicant, that the permit has lapsed and is no longer in existence. I think that these considerations alone are sufficient reasons not to resurrect the permit by granting an extension of time and then confronting everybody with the problems I have referred to.

21 Furthermore, these problems include doubts, to put it mildly, in relation to the validity of the permit and some aspects of the permit. This is particularly true in relation to the development aspect that I have discussed above. It is better for everybody that the applicant start again, and obtain a new permit, if possible. I give no guarantee that such a permit can be obtained.

22 In the course of the hearing there was consideration of a number of the matters referred to in cases that are relevant to the question of whether extension should be granted. These included the decision of Ashley J. in the case of Kantor v. Shire of Murindindi (1997) 18 AATR 285. I do not propose to discuss here all the matters raised in relation to the various aspects of the various considerations that have been held to be relevant in relation to extending permits. However, I do refer to, as I do rely upon, the notion as to whether a permit would be granted if the current one was not revived and a new one, in like terms, was applied for. In this connection Mr. Gray said that there was a reasonable prospect that his client would obtain a new permit. However, in my opinion, this misunderstands the relevant consideration. It has been said, appropriately enough, that there is no point in refusing to grant an extension of time if the applicant can then immediately make a new application with assurance of a new permit being granted. Why put everybody to the time, trouble and expense of going round the circuit of a new permit application to get back to the situation that would be achieved by granting an extension?

23 All that is fair enough, but it depends upon the proposition of it being clear that the new permit would be granted in place of the unextended one, and upon the same terms as to conditions.

24 It is clear enough that, if it is obvious that the new permit would be refused, that will normally be an important consideration in favour of not extending the existing permit. However, the same situation does not arise if there is doubt as to whether the new permit would be granted, and if so whether it would be on the same terms. If there is doubt, the appropriate thing is to refuse the extension so that the applicant can apply again and have the proposal assessed on the basis of the current situation, including the current law, current planning policies and the current situation in relation to the land and locality. It is not enough that there might be a reasonable prospect of an identical permit being granted. If there is doubt, then the public interest requires that the new application should be made and determined appropriately. For this reason too, I would refuse this extension.

25 Change circumstances in relation to the land and locality, or in relation to applicable planning law and policies have long since been recognised as an appropriate reason for refusing an extension. In my opinion, the same applies if there has been a mistake in relation to the grant of the permit. This applies if there has been a legal mistake of the sort discussed above. What is the point of extending the life of an invalid permit, or a permit of doubtful validity? In any event, even if there is not a legal problem, what if there is a mistake in planning judgement in relation to the grant of a permit? It might be clear that, as an exercise of planning discretion, the permit should not have been granted in the first place. Even if it is not clear, it might be a matter of serious doubt as to whether it should have been granted. In these circumstances the best solution is not to extend the inappropriate permit, but to leave it lapsed and let a new application be made, if the applicant wishes to do that, for an assessment on the merits.

26 In this case the responsible authority opposes an extension, amongst other reasons, because it says that there is a greater appreciation of certain important rural planning policies in relation to the fragmentation of rural land, the proliferation of rural houses not required for rural farming activities in relation to the land, and in relation to the siting of buildings having regard to the Environmental Significance Overlay. The Overlay provisions discourage buildings in prominent positions on ridge lines where they are likely to detrimentally affect landscape. In effect, the responsible authority is saying that it should not, as a matter of exercise of planning discretion, have issued this permit in the first place.

27 If a mistake in planning judgement is made, and an inappropriate permit is granted, the holder of the permit nevertheless has an opportunity to act upon it and gain the benefit of it, unless action is taken by someone to have the permit cancelled or declared invalid. No such action has been taken in this case. However the responsible authority, and indeed the public, have an interest in the matter not proceeding in those circumstances. The responsible authority, and the public, may have to accept the possibility of the permit being acted upon while it is still alive, but may heave a sigh of relief if the permit holder fails to act when he or she had the chance and allowed the permit to lapse. In those circumstances, such a mistake is a good reason for not granting an extension. The same reason would be equally valid if it was not definite that a mistake had been made but where it is doubtful. This does not prevent the applicant from making a new application and having it dealt with on the merits. The applicant can obtain a new permit if it persuades the responsible authority, or the Tribunal on review, that such a permit is appropriate, and not a mistake after all.

28 In this case the responsible authority is really saying that mistakes have been made, and that this permit should not have been granted. I can only agree as to the legal side of things. In relation to the planning merits, I am satisfied that there is a strong argument (which I do not here determine) to that effect. The existence of this view is again a justification for refusing an extension.

29 There is clear authority for the proposition that a change in planning policy can be a good reason for refusing an extension, and then requiring the applicant, if he or she so desires, to apply again. Such change may appear in an amendment to the planning scheme or in a proposed amendment. There can be a situation where a new statement of policy really does not raise any new policy, and that all the relevant policy considerations were properly assessed and taken into consideration at the time the permit was granted.

30 In this case, there is a proposed planning scheme amendment. Mr. Gray, on behalf of the applicant, admits that it is a seriously entertained planning proposal. As such it is appropriate to be taken into consideration in assessing planning merits. The proposed amendment is at an advanced stage. It has been considered by a Panel under the PE Act which has approved it whilst making some minor suggestions for amendments. Those suggestions have been adopted by the council as planning authority and the proposal has been forwarded to the Minister for Planning for confirmation. I am informed that this occurred during May and that it is anticipated that the proposed amendment will become part of the planning scheme in the near future. Whether that is so or not, it is a relevant consideration, not available at the time the permit was granted, that should now be considered if a new application is made.

31 Mr. Gray argued that it is similar to policies that were in operation at the time the permit was granted. These policies are concerned to avoid rural residential developments and uses being scattered through rural land, and to have them concentrated in residential areas within townships. At the time the permit was granted this was said to be a "focus" of planning policy in this connection. The new provision for which the proposed planning scheme amendment is the vehicle, does not use the word "focus". It uses the rather firmer term of "contain" and this containment is to be not just within the township but within urban growth barriers to be delineated for the various townships. All in all, the proposed amendment is for a much clearer and firmer requirement on this question. I think this again justifies a refusal to extend. For the reasons given in the course of the hearing I have refused to extend the old permit.

32 The other review before me relates to land known as 39 Old Mill Road, Bannockburn, being Lot 7 on Plan of Subdivision 328319M. This land is located immediately to the south of Crown Allotment 23, across the unused road on the southern boundary of Crown Allotment 23. Lot 7, as I will call it, has its own access to Old Mill Road, which is an existing road on its southern boundary.

33 The applicant for the permit giving rise to this second proceeding before me is Mac Wreck Pty Ltd. However, I am assured that this company has the same interest in the matter as Mr. McKay. The idea here is to avoid the expense of access to Crown Allotments 23, 24 and 25 by the construction of the long circuitous road originally contemplated at the time the permit was granted. The current idea is to have a shortcut by creating a road along the eastern boundary of Lot 7 from Old Mill Road to the unused government road. This route would be much shorter, and the cost of construction much less. The applicant (whether considered as Mr. McKay or Mac Wreck Pty Ltd) can expect to pay for the provision of a serviceable road if permission is ultimately obtained for the use and development of Crown Allotments 23, 24 and 25, or any of them, for dwellings.

34 The whole idea of this new permit application in relation to Lot 7 is really something of a hypothetical question, now that I have determined not to extend the permit. This second review is of the failure to grant a permit for a subdivision to create the contemplated new road. The question of this road does not really arise with the original permit having lapsed, unless a new permit for use and development of the Crown Allotments for dwellings can be obtained. Without purporting to decide the question, that must be at least doubtful in the circumstances. I do not favour determining hypothetical questions of this sort. It is better for the Tribunal to be dealing with real questions as to the grant of real permits relating to real fact situations.

35 Mr. Gray nevertheless argued that there may be some use in consideration of this second review, in case his clients obtain a new permit, either for dwellings on each of the Crown Allotments, or even for a dwelling on a consolidated parcel of land constituted by the three presently existing Crown Allotments. Although a little reluctant, I was persuaded to proceed in this way.

36 Mr. Gray urged various arguments as to the planning merits of the proposed subdivision. However, in the reasons that I gave orally I relied upon a different consideration. Clause 35.01-4, which is amongst the zone provisions for the rural zone, deals with subdivision. It provides that a permit is required to subdivide land. It also provides that each lot must be at least the area specified for land in the schedule to the zone which, in this case, is 100 hectares. That requirement cannot be met. Lot 7 is only 18.28 hectares in area. Any lot created by subdivision must be less than that area, and thus much less than 100 hectares.

37 Mr. Gray advanced an argument that the area for the road to be taken off the eastern side of Lot 7 should not be regarded as a lot having regard to various relevant definitions. Be that as it may, the remainder of the present Lot 7, which would become Lot 1 in the new subdivision, would have an area of 17.27 hectares, far less than 100 hectares. As such, it falls foul of the provision that says that lots created by subdivision cannot be less than 100 hectares.

38 In this connection reliance was sought to be placed on an exemption, also found in cl.35.01-4. This provides that a permit may be granted for a smaller lot if the subdivision is a re-subdivision of existing lots. The number of lots must not be increased and all lots must be at least 0.4 hectare.

39 Mr. Gray centred his argument on the second of these propositions. By this he maintained that the number of lots would not be increased because the road area is not to be regarded as a lot.

40 My difficulty is in relation to the first sentence of the exemption provision reading:

The subdivision is the re-subdivision of existing lots.

41 As to this, Mr. Gray sought to refer back to an earlier subdivision number 328319M whereby Lot 7 itself was created. However, that was a subdivision of a larger area of land in the relevant parent title into at least nine allotments. Lot 7 is adjoined by Lot 8 on that Plan of Subdivision having an area of 16.22 hectares and Lot 9 of 17.38 hectares.

42 The current permit application, giving a rise to the current application for review of the failure of the responsible authority to grant a permit, is not in relation to all that area in the original parent title that was subdivided by subdivision No. PS328319M. On the contrary, the subject matter of current proceedings is Lot 7. Lot 7 has never been subdivided and so cannot, in my view, be re-subdivided. I think this exception is intended to cover, either exclusively or substantially, a situation sometimes referred to as a boundary realignment. An example of this is where there are two lots with a common boundary where it is proposed to move the common boundary between the two.

43 It is to be noted that this exemption refers to a re-subdivision of "existing lots". The current proposal is not for a re-subdivision of existing lots, but for an initial subdivision of a single lot, namely Lot 7.

44 Reference was made to the provisions in the Interpretation of Legislation Act that enable an interpretation of plurals to be taken as singulars, and vice versa unless the context suggests to the contrary. However, I am satisfied that the context here does suggest to the contrary. In my view, what the applicants are seeking here is a subdivision of a lot, not a re-subdivision of existing lots. As such I do not think that the exemption can apply. Therefore the ban on subdivisions creating lots of less than 100 hectares does apply. For this reason I would not grant the review.

_________________

RUSSELL BYARD

SENIOR MEMBER