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[2003] VCAT 31
appellant. The Tribunal allowed the Application for Review. Permit P01.067 was amended by deleting part (b) of Condition 6 and renumbering Condition 6(c) as Condition 6(b). The Responsible Authority was...
The Council's permit allowed a two-lot subdivision but included a condition requiring consolidation of other land parcels. The Tribunal decided that this condition went further than was reasonable, even though protecting agricultural land and avoiding fragmentation were legitimate planning concerns. It found the condition could be removed without undermining the rest of the permit. The Council's request to cancel the permit could not proceed under the statutory cancellation provision because the Tribunal accepted, for that purpose, that the Council had power to impose the condition. The Tribunal therefore deleted the condition and left the permit otherwise in place.
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2,204 words · generated 30/09/2026
P A & J A Brereton Pty Ltd held Permit P01/067, issued by Gannawarra Shire Council for a two-lot subdivision of land at Cohuna Island Road, Cohuna. The Council first issued the permit on 18 February 2002 and amended it on 16 April 2002 ([1]). The dispute concerned Condition 6(b), not the general grant of the subdivision permit.
1 cited instrument linked from this judgment.
Condition 6 required certain matters to be completed before a statement of compliance could issue. Part (b) required Lot 1 on PS 3337663 and a group of Crown Allotments to be consolidated into one parcel, while Lot 2 of PS 421599H was to remain separate ([2]). An earlier version of the condition had also required a proposed lot from the permitted subdivision to be consolidated with those other parcels. The Council changed that wording in its amendment of the permit ([3]).
The company applied for review on 18 April 2002, challenging Condition 6(b) ([1]–[2]). Following a hearing on 3 September 2002, the Tribunal gave interim findings and invited further submissions. It expressed the preliminary view that the condition might be beyond the Council's power and was unreasonable, but also raised the possibility that the permit could be cancelled if the statutory requirements for cancellation were met ([4]–[5]).
The Council later submitted that the permit should be cancelled because it would not have granted it without the disputed condition. It provided a legal opinion concluding that the condition was valid ([7]). The company opposed cancellation, arguing that cancellation would be unfair and unreasonable ([8]). Neither party asked for a further oral hearing ([9]).
In its final decision, the Tribunal concluded that it could not cancel the permit under the provision discussed in the interim findings. It also found the condition severable and unreasonable. The order deleted Condition 6(b), renumbered former Condition 6(c) as Condition 6(b), and directed the Council to issue an amended permit.
The decision turned on three linked questions: the statutory route to cancellation, whether the condition could be separated from the permission, and whether the condition was reasonable.
First, the Tribunal addressed s 85(1)(g) of the Planning and Environment Act 1987. The judgment describes that provision as requiring two matters before cancellation could be considered: the Tribunal must uphold a review on the ground that the responsible authority had no power to impose the condition, and it must consider that the permit should not or would not have been granted without that condition ([4], [12]). The Council's submission addressed the second matter by saying it would not have granted the permit without Condition 6(b). But the Council also maintained that the condition was valid. The Tribunal reasoned that, if the condition was valid, the first statutory requirement was absent. It therefore had no basis in these s 80 proceedings to cancel the permit under s 85(1)(g) ([12]).
Second, the Tribunal considered whether the permit would fall if the condition were removed. It referred to authorities discussing the difference between a condition that is fundamental to the structure of a permission and one that can be removed without the permission failing ([14]–[15]). The Tribunal's operative finding was that Condition 6(b) was severable. It considered that a two-lot subdivision permit could have issued without the condition, and that removing it would not cause a contravention of the Scheme or the Act or affect the root of the permission ([16]).
Third, the Tribunal assessed the condition's reasonableness. It accepted the importance of protecting agricultural resources and avoiding land fragmentation. It noted that Clause 22.18 concerned the management of excisions in the Rural Zone, while Clause 22.19 placed stronger emphasis on retaining agricultural land in productive units and discouraging fragmentation ([18]). It also considered the Rural Zone schedule's 20-hectare minimum lot size, while clarifying that the minimum did not mean permits would automatically issue for subdivisions at that intensity ([19]).
Against that planning context, the Tribunal concluded that the condition went too far. It referred to the scale of the consolidation, about 90 hectares, and found the Council's legitimate planning objective did not justify the condition as framed ([19]). The decision is therefore not that agricultural land protection was unimportant. Rather, the Tribunal accepted the objective but considered this particular condition unreasonable in the circumstances.
The Tribunal did not replace the condition with a narrower consolidation requirement. It considered the company's earlier suggestion to consolidate Crown Allotments 18 and 19, but found that proposal did not provide an appropriate compromise. The resulting land would be about 35 hectares, and the Tribunal noted the possibility of re-subdivision in the absence of a section 173 or similar agreement ([20]). It then allowed the review ([21]).
The judgment does not set out a comprehensive account of the law before the case, nor does it claim to alter a general rule. Its reasoning applies the statutory wording and principles identified in the judgment to this permit and this condition.
Before the decision, Condition 6(b) formed part of the permit requirements that had to be completed before a statement of compliance could issue ([2]). The Council's position was that the condition served an agricultural planning objective and that the permit would not have been granted without it ([7], [11], [13]). The Tribunal's interim view had been that the condition might be invalid and unreasonable, but it invited further submissions before reaching its final determination ([4]).
After the decision, the permit remained in place, but the disputed consolidation requirement was deleted. The Council was directed to issue an amended permit with former Condition 6(c) renumbered as Condition 6(b). This was a variation, not cancellation ([Order], [21]).
The judgment's treatment of s 85(1)(g) is conditional and specific. The Tribunal reasoned that accepting the Council's position that the condition was valid meant the statutory requirement that the Council lacked power to impose it was not satisfied. Consequently, the cancellation mechanism was unavailable in the proceedings ([12]). The judgment does not finally determine the validity issue after a contested legal analysis. It records the Council's legal opinion and uses the assumed validity position to explain why the cancellation route was closed.
The severability reasoning is also tied to this permit. The Tribunal found that deleting this condition would not undermine the permission's structure or its root ([16]). It did not hold that every condition requiring land consolidation is severable, or that every permit remains operative after the removal of a condition. The cited distinction is between conditions fundamental to a permission and those whose removal leaves the permission able to endure ([14]–[16]).
At [12], the Tribunal states that if it accepted the Council's submission that Condition 6(b) was valid, one of the requirements for cancellation under s 85(1)(g) was not met. In plain English, the Council could not both maintain that it had power to impose the condition and rely on the statutory ground that the Council had no power to impose it as a basis for cancellation.
At [14]–[15], the Tribunal refers to a distinction between conditions that are part of the essential structure of a permission and incidental or unimportant conditions. The cited decisions supply the language the Tribunal used to analyse severability. In plain English, the question was whether removing this condition would cause the permit itself to collapse, or whether the permit could continue without it.
At [16], the Tribunal gives its direct answer: “the structure of the permission does not fall with the Condition's deletion”. It also says a permit for the two-lot subdivision could have issued without Condition 6(b). This finding supports the order to remove the condition while leaving the permit operative.
At [18], the Tribunal recognises the planning policy context. It notes the different emphases of the policies concerning excisions and agricultural land. It also observes that whether the permit should have been granted at all could be questioned, but makes clear that this issue was not directly before it. The observation should therefore not be read as a decision to revoke the subdivision permission.
At [19], the Tribunal accepts that the Council sought a planning outcome by imposing the condition, which it says added weight to a position that the condition was valid. It nevertheless concludes that the condition “simply goes too far”. In plain English, a legitimate objective did not, in the Tribunal's assessment, make this particular requirement proportionate or reasonable in the circumstances described.
At [20], the Tribunal explains why it did not adopt the suggested alternative of consolidating Crown Allotments 18 and 19. It referred to the resulting area and the possibility of later re-subdivision absent an agreement. The decision therefore did not substitute that proposed compromise for the condition it deleted.
The decision is most relevant as a reasoning example where a planning permit condition requires consolidation of land beyond the parcel or subdivision directly addressed by the permit. In this case, the condition applied to identified lots and Crown Allotments, and the Tribunal treated the scale of the resulting consolidation as important ([2], [19]).
It is also relevant where the responsible authority relies on a broader planning objective, such as protecting agricultural land or avoiding fragmentation, but the permit holder argues that the condition restricts land beyond what is justified by the permission. The Tribunal accepted the importance of the objective, then assessed whether the condition went too far in the particular setting ([11], [17]–[19]).
A further feature is whether the challenged condition can be removed while leaving the rest of the permit workable. The Tribunal's finding that a two-lot subdivision permit could issue without Condition 6(b) was central to severability ([16]). A fact pattern in which the condition is integral to the permission's structure may raise a different question under the distinction discussed at [14]–[15].
The statutory cancellation issue may also be relevant where a party seeks cancellation because a permit would not have been granted without a challenged condition. The judgment describes s 85(1)(g) as requiring both that the responsible authority lacked power to impose the condition and that the permit should not or would not have been granted without it ([4], [12]). The first requirement was not met on the basis the Tribunal accepted in this case.
These are features of the decision, not a checklist guaranteeing the same outcome. The judgment's result depended on its findings about the particular parcels, planning controls, scale, and effect of deleting the condition.
The supplied judgment text contains no later judicial or tribunal decisions discussing or applying P A & J A Brereton Pty Ltd v Gannawarra SC. On the material provided, it is not possible to state whether later courts have followed, distinguished, or otherwise treated this decision.
The judgment itself cites Spurling v Development Underwriting, Kent County Council v Kingsway Investments (Kent) Ltd, and Hall & Co Limited v Shoreham-by-Sea Urban District Council in its severability discussion ([14]–[15]). It also cites Crichton v City of Moorabbin when addressing the significance of the Council's planning objective and the validity of a condition ([19]). Those citations show the sources the Tribunal relied on in this decision; they do not establish how later courts have treated the present decision.
The Tribunal expressly left open whether the permit should have been granted at all. It said that the local policies could prompt that question, but that the issue was not directly before it ([18]). The decision therefore resolves the review of Condition 6(b), not the merits of the original permit grant as a whole.
The judgment also does not give a final, fully reasoned determination of the condition's validity after adversarial argument on that point. It reports that the Council's legal opinion concluded the condition was valid, and then reasons that if it accepted that position, s 85(1)(g) could not support cancellation ([7], [12]). The condition was removed because it was unreasonable and severable, not because the final reasons conclusively held it invalid.
The boundary between an unreasonable condition and a condition that is beyond the responsible authority's power is not fully developed in the final reasons. The Tribunal treated validity and reasonableness as distinct questions: validity affected the cancellation route, while reasonableness supported deletion on review ([12], [16]–[19]). The judgment does not provide a general test for every land-consolidation condition.
Nor does it decide what evidence or planning analysis would justify a narrower consolidation condition in another case. The proposed consolidation of Crown Allotments 18 and 19 was rejected on the particular considerations recorded at [20]. The decision does not determine whether a different condition, supported by different circumstances or an agreement, would be reasonable.
Finally, the Tribunal did not decide the consequences of deleting a condition that is genuinely fundamental to a permit. It stated the relevant distinction by reference to the cases cited at [14]–[15], but found this particular condition severable ([16]). The result in a case where the permission could not operate without the condition remains outside the decision's holding.
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Application under s. 80 of the Planning and Environment Act 1987; Gannawarra Planning Scheme; Rural Zone; Environmental Management Overlay; Land Subject to Inundation Overlay; Subdivision; Condition Requiring Consolidation of Other Land; Power to Impose Condition; Grounds to Cancel Permit under Section 85(1)(g) ;
Lot 2 PS 421599H Section 8 Parish of Gunbower, Cohuna Island Road, Cohuna
The decision of the Responsible Authority is varied. Permit P01.067 is amended by the deletion of part (b) in Condition 6 and the re-numbering of Condition 6(c) as Condition 6(b).
The Responsible Authority is directed to issue an amended permit in accordance with this order.
1. This is an Application under Section 80 of the Planning and Environment Act 1987 brought by P A & J A Brereton Pty Ltd to review a condition included on Permit P01/067 issued by the Gannawarra Shire Council ("the Council") on 16 April 2002. This was the date on which the permit was amended, having originally issued on 18 February 2002.
2. The Application for Review was lodged on 18 April 2002 with a statement of grounds seeking a review of Condition 6(b). The preamble to Condition 6, and part (b) of that Condition, are:
6. Prior to the issue of a statement of compliance the following must be completed.
b) The following lots shall be consolidated to form one parcel of land:-
Lot 1 on PS 3337663, CA's 14, 15, 18, 19, 20 and 20a, Section 8, parish of Gunbower.
Lot 2 of PS 421599H (previously lots 1 and 2 on LP 8877) shall remain as a separate lot from the above.
3. Condition 6 was altered by the Council by the amendment on 16 April 2002. The earlier version of the Condition required Lot 1 on PS 3337663, CA's 14, 15, 18, 19, 20, 20a and proposed Lot 1 of the subdivision allowed by the permit to all be consolidated into one parcel.
4. A Hearing in relation to this Application for Review was conducted on 3 September 2002. Directions were issued by the Tribunal by order dated 10 September 2002. The interim findings, and reasons, were set out. As the written reasons are available, I do not recite the detail. I refer to the following findings, however:
Having now had an opportunity to consider the matter further, I am of the view that the Condition may not be lawful. The following sets out my reasons for this and, as foreshadowed with the parties, I will provide an opportunity for further submissions to be made on this matter. I have also set out my interim findings in relation to the merits of the Application.
Irrespective of the issue of validity, the disputed Condition is an unreasonable one, in the context of the permission being granted and the other requirements of the Permit. Condition (b) goes beyond what is reasonable in relation to the permission granted and what is fair in terms of the applicable controls under the Scheme relating to the additional 90 hectares of land.
However, I also consider that Condition 6(b) may be invalid. It is open to me to form a view that the Responsible Authority had no power to impose that Condition. Taking into account the factors that were said by Mr McCurdy to have influenced the Council's two decisions, it is equally open to me to form a view that a permit would not have been granted without Condition(b).
The provisions of Section 85(1)(g) of the Planning and Environment Act 1987 states that the Tribunal, after hearing an Application for Review, may cancel a permit if:
(i) it upholds an application for review of a condition specified in a permit on the ground that the Responsible Authority had no power to impose the condition; and
(ii) it considers that a permit should not or would not have been granted without the condition.
As the two parts to the Section could be said to be satisfied, it is open to me to come to a conclusion that there are grounds under which Permit P01.067 may be cancelled.
However, in considering the exercise of a discretion conferred under Section 87, I should also consider whether it would be fair and just to the Applicant to cancel the Permit. In this case, as the Permit may properly be able to operate with the removal of Condition 6(b), it is open to me to allow the Application for Review and direct that Condition 6(b) be deleted and Condition 6(c) re-numbered accordingly.
5. At the September 2002 Hearing, the parties consented to the process proposed by the Tribunal as constituted of preparing further submissions if necessary.
6. After some delay (which I understand from the correspondence from the Council and Mr Brereton included some discussions between the parties and formal consideration of the matter by Council), a supplementary submission was forwarded to the Tribunal by Gannawarra Shire Council dated 13 December 2002.
7. The Council's submission acknowledged the Tribunal's interim finding that Condition 6(b) was unreasonable. The Council resolved to advise the Tribunal that it considers Permit P01.067 should be cancelled as the Council would not have granted the planning permit without Condition 6(b). A legal opinion was obtained by the Council in relation to the legality of Condition 6(b). That was prepared by Mr J Rantino of Maddocks Lawyers dated 6 November 2002. A copy was provided to the Tribunal and to Mr Brereton. The legal opinion concluded that the Tribunal's concerns about the validity of Condition 6(b) are not warranted.
8. In response, P & J Brereton advised the Tribunal by way of letter dated 1 January 2003, that they opposed the cancellation of the permit. They submitted that to cancel the permit would be unreasonable and unfair.
9. No party requested to be heard orally in support of their further submission.
10. The description of the subject site, proposal and planning controls set out in the interim determination of 10 September 2002 are relied upon. I am not aware of, and no party has referred to, any changes in these circumstances or matters.
11. The main points of the submissions on the merits of the Application were that the Council maintained that Condition 6(b) is reasonably directed to the achievement of a planning objective relating to the protection of agricultural land whereas Mr Brereton submitted that Condition 6(b) would unreasonably limit his rights in relation to the land parcels that were not the subject of the permit application.
12. If I accept the Council's uncontested submission that Condition 6(b) is valid, then permit cancellation is no longer an avenue open to me. This is because there are two tests in Section 85(1)(g) that must both be satisfied for cancellation to be considered by the Tribunal under that provision. One test is that the Responsible Authority had no power to impose the condition. If I accept the legal advice obtained by the Council, then that pre-condition is not met. There is, therefore, no power for the Tribunal to utilise Section 85(1)(g) of the Act to contemplate the cancellation of the permit and consequently no avenue to accede to the Council's request that the permit be cancelled through the current Section 80 proceedings.
13. I therefore move to the next consideration, which is whether Condition 6(b) is severable from the permit. The Council submitted that it is not; that is, the Council would not have granted the permit without the Condition being imposed whereas the submission put by Mr Brereton is based on a presumption that the Condition can be deleted.
14. To assist, I refer to Spurling v Development Underwriting (1973) VR1; 4- wherein reference is made to a decision of the House of Lords in Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72. Lord Morris, with whom Lord Guest and Lord Donavan agreed, made the following observations about matters to be considered when deciding about the severability of a permit condition:
"There might be cases where permission is granted and where some conditions, perhaps unimportant or perhaps incidental, are merely super imposed. In such cases if the conditions are held to be void the permission might be held to endure just as a tree might survive with one or two of its branches pruned or lopped off. It will be otherwise if some condition is seen to be a part, so to speak, of the structure of the permission so that if the condition is hewn away the permission falls with it". His Lordship went on the refer to the distinction between conditions "fundamental to the whole of the planning permission" in which case the planning permission fails if the conditions are ultra vires, and other cases where when the conditions are not of this character "it would be difficult to justify saying that the whole of the permission failed".
15. In his judgment in Hall &: Co Limited v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240, 251-252 Willmer LJ contrasted a case in which one or two trivial conditions might be held to be ultra vires (where it would be difficult to justify saying that the whole permission failed) and a case in which conditions are "fundamental to the whole of the planning permission" in which case the planning permission would fail. In the same case, at page 261, Pearson LJ, distinguished between conditions which are "essential, or at least important," and those which are "trivial or at least unimportant".
16. I am persuaded that Condition 6(b) is severable. That is, the structure of the permission does not fall with the Condition's deletion and a permit could have issued for the two lot subdivision without Condition 6(b). Having said that, it is evident that there are clearly different views about the merits of such a condition. I understand that the Council sees Condition 6(b) as important to its decision, however, I can see no basis to conclude that its removal would bring any contravention of the Scheme or Planning and Environment Act 1987 nor effect the root of the permission. I therefore turn to the merits next.
17. I indicated in my interim determination that I consider the condition to consolidate all lots associated with the property to be unreasonable to the extent of being unfair. I have no reason to change my view in this regard.
18. I reach that conclusion cognisant of the importance of protecting agricultural resources and avoiding land fragmentation. Indeed, when noting the local policy at Clause 22.18 relating to subdivision for dwellings within the Rural Zone, and the policy at Clause 22.19 relating to agriculture, it could be fairly questioned as to whether a permit should have been granted at all and on any condition. Having made that observation, I also note that Clause 22.18 seeks to manage excision processes, rather than discourage excisions per se, in contrast to Clause 22.19 that appears to place a stronger emphasis on the retention of agricultural land in productive units and gives strong discouragement of fragmentation. However, the fundamental question of whether the permit should have issued is not directly before me when taking into account the Council's legal advice as referred to above.
19. I accept that the Council has sought to achieve a planning outcome by the imposition of Condition 6(b) and that adds weight to a position that the condition is valid (refer to the principles referred to in Crichton v City of Moorabbin [1992] VicRp 69; (1992) 8 AATR 172). However, as I said in my interim determination, the outcome is one where some 90 hectares of land would be consolidated in an area where the minimum lot size under the schedule to the Rural Zone of 20 hectares. Pursuant to Clause 31 of the Scheme, that minimum lot size does not mean that permits would automatically issue for lots to be subdivided at that intensity. Nonetheless, although the Council's aims are laudable, I find that Condition 6(b) simply goes too far and beyond what is reasonable in the circumstances that have been described to me.
20. In addition, I am not persuaded that some compromise, such as pursuing the original suggestion made on behalf of the Applicant to consolidate Crown Allotments 18 and 19, is appropriate in place of Condition 6(b). That suggestion would result in the number of lots being equivalent to that existing today, however, the combined area of the two lots would be around 35 hectares and there may still be potential for re-subdivision of that land in absence of any Section 173 or similar agreement to prevent such. [For example, the schedule to the Rural Zone would allow a permit application to be considered for lots of less than 20 hectares for horticultural based activities in irrigated areas in the Rural Zone where the policies at Clause 22.21 are satisfied].
21. It follows from the above reasons that I will allow the Application for Review.
P A & J A Brereton Pty Ltd
Gannawarra SC [2003] VCAT 31
The Tribunal allowed the Application for Review. Permit P01.067 was amended by deleting part (b) of Condition 6 and renumbering Condition 6(c) as Condition 6(b). The Responsible Authority was directed to issue an amended permit.