Victorian Civil and Administrative Tribunal|2005-08-25|Before: Mr J

Perfect Builders Pty Ltd v Greater Geelong CC [2005] VCAT 1795 (25 August 2005)

Subdivision without services - Whether permit may be granted for multi-unit residential development without requiring construction of roads and provision of drainage - Clause 55.02-4 provision of infrastructure - question of who pays for infrastructure - sections 62(5) and 62(6) Planning and Environment Act 1987

1 The hearing of these matters is adjourned to a date to be fixed.

2 By no later than 14 October 2005 the responsible authority must file and serve details of the works, services and facilities it requires to be provided on or to the subject land or other land as a result of the grant of any permits in these applications.

3 The applicant must file and serve details of its objections to any of the works, services and facilities specified and the grounds upon which it relies by no later than 31 October 2005.

4 This matter is listed for an administrative mention on 9 December 2005. By that date each party must advise the Tribunal in writing:

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whether the matter is resolved or is proceeding to a hearing,

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if that party is ready for a hearing,

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that party's estimate of the duration of the hearing, and

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whether a further directions hearing or mention is requested.

Mr J Atkins of Counsel instructed by Richard Szentil

1 Both these applications are in respect of the failure by the responsible authority to grant a permit for multi unit development on two sites, namely 82-86 Altair Avenue and 58-62 Altair Avenue, Lara. The subject sites are located within an existing subdivision in Altair Avenue. The subdivision was carried out in 1960 but no subdivision works were undertaken at this time. With the exception of several lots that front Antares Avenue, which is serviced, and that have been developed for houses, the subdivision as a whole remains undeveloped and vacant at present. Altair Avenue is unconstructed and there is no drainage infrastructure serving the subdivision. With the exception of the developed lots fronting Antares Avenue, the applicant owns all the lots in the subdivision which front onto Altair Avenue.

2 The land is located in a Residential 1 Zone under the Greater Geelong Planning Scheme. A permit is required to construct two or more dwellings on a lot.

3 The responsible authority does not oppose use and development of the two sites for the purpose of multi dwellings and is prepared to grant a permit subject to certain conditions. The issue in dispute between the responsible authority and the applicant is drainage. In general terms, the Council contends that the applicant must construct Altair Avenue and provide drainage works to service not only the sites in question but the subdivision as a whole. The applicant contends that the Council's requirements are excessive and will benefit properties other than those owned by the applicant. It contends that either the Council or other properties that will also benefit should be required to pay for upgrading existing drainage infrastructure.

4 The difficulty the Tribunal faces is that the Council has not specified exactly what works, services and facilities it requires as part of these applications which are before the Tribunal. It has simply said the works must be to the satisfaction of the responsible authority. On the other hand, neither has the applicant been clear about the works it proposes, the precise concerns it has with the proposed drainage conditions or what alternate conditions would be deemed acceptable.

5 In our view there can be no doubt that construction of Altair Avenue and the provision of adequate drainage infrastructure is required as a condition of the grant of permits in these applications. It would be quite contrary to the principles of orderly and proper planning to allow development of a total of 17 dwellings on the two sites in the absence of a made road and proper drainage. Specifically, clause 55.02-4 of the planning scheme sets out the Res Code objectives, standards and decision guidelines relative to infrastructure required for two or more dwellings on a lot. It provides as follows:

To ensure development is provided with appropriate utility services and infrastructure.

To ensure development does not unreasonably overload the capacity of utility services and infrastructure.

Development should be connected to reticulated services, including reticulated sewerage, drainage, electricity and gas, if available.

Development should not unreasonably exceed the capacity of utility services and infrastructure, including reticulated services and roads.

In areas where utility services or infrastructure have little or no spare capacity, developments should provide for the upgrading of or mitigation of the impact on services or infrastructure.

Before deciding on an application, the responsible authority must consider:

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The capacity of the existing infrastructure.

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In the absence of reticulated sewerage, the capacity of the development to treat and retain all wastewater in accordance with the State Environment Protection Policy (Waters of Victoria) under the Environment Protection Act 1970.

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If the drainage system has little or no spare capacity, the capacity of the development to provide for stormwater drainage mitigation or upgrading of the local drainage system.

6 This clause provides clear planning justification for the responsible authority to require road construction and the provision of adequate drainage infrastructure, including the upgrading of existing drainage infrastructure. The legal power to impose a condition requiring the provision of works, services and facilities is found in clause 62(5) of the Planning and Environment Act 1987, which provides as follows:

(5) In deciding to grant a permit, the responsible authority may -

(a) include a condition required to implement an approved development contributions plan; or

(b) include a condition requiring specified works, services or facilities to be provided or paid for in accordance with an agreement under section 173; or

(c) include a condition that specified works, services or facilities that the responsible authority considers necessary to be provided on or to the land or other land as a result of the grant of the permit be -

(iii) provided or paid for partly by the applicant where the remaining cost is to be met by any Minister, public authority or municipal council providing the works, services or facilities.

7 Given the breakdown in negotiations between the applicant and responsible authority regarding the level of infrastructure required, we consider it is necessary for the responsible authority to be specific about the works, services and facilities it requires to meet the objectives of clause 55.02-4 and to satisfy the requirements of section 62(5)(c). The responsible authority must identify the specified works, services or facilities it considers necessary to be provided on or to the land or other land as a result of the grant of the permits and to specify how such works etc should be provided or paid for.

8 With respect to the issue of payment or provision of works, section 62(6) of the Act is relevant. It provides:

(6) The responsible authority must not include in a permit a condition requiring a person to pay an amount for or provide works, services or facilities except -

(a) in accordance with sub-section (5) or section 46N; or

(b) a condition that a planning scheme requires to be included as referred to in sub-section (1)(a); or

9 The effect of section 62(6)(a) is that if works, services and facilities are required under a planning permit conditions, they must be provided or paid for either solely by the applicant or partly by the applicant and partly by the council or other authority in accordance with section 62(5) of the Act, or by way of a development contributions plan (see section 46N). This means that unless the Council is willing to contribute some part of the cost, the only way in which contributions can be obtained from landowners other than the applicant is in accordance with a developments contributions plan. However, there is no mechanism whereby the applicant can force the responsible authority to apply a Development Contributions Plan Overlay to land in the area or to implement a development contributions plan for the works in question if the council is not willing to do so. This leaves the only viable option being for the applicant to provide the works, services or facilities itself.

10 In the present case, once the responsible authority specifies what works, services and facilities are required, the applicant will be in a better position to argue whether the works etc are in fact necessary as a result of the grant of the permit within the meaning of section 62(5)(c). If the applicant cannot resolve the matter with the responsible authority by negotiation and wishes to return to the Tribunal, it will be necessary for it to provide further and better particulars of its grounds of objection to the works, services or facilities and to provide expert evidence to support its contentions. We will make directions to facilitate this course.

Perfect Builders Pty Ltd v Greater Geelong CC [2005] VCAT 1795

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Judgment (26 paragraphs)

Perfect Builders Pty Ltd v Greater Geelong CC [2005] VCAT 1795 (25 August 2005)

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Legislation Cited (1)