Plaintiff v Defendant

Plaintiff v Defendant - [2006] VSC 35 - VSC 2006 case summary — Zoe

[3]

1 The plaintiff in this matter has instituted proceedings pursuant to r.56 of the Rules of the Supreme Court seeking to set aside a decision of the Victorian Civil and Administrative Tribunal ("the Tribunal") made with respect to a preliminary question of law arising in the course of the hearing of a planning appeal.

2 The plaintiff is the developer of a substantial residential estate known as the Burnside Estate, which is located within the municipality of the first defendant ("the Council") on the northern side of the Western Highway.

3 The relevant history of the estate goes back to 1987. In that year an amendment to the then Melbourne Metropolitan Planning Scheme was proposed to re-zone the estate from a rural zone to zones which facilitated urban purposes ("AM 436").

4 On 9 November 1987 an agreement was entered into between the then Shire of Melton and the owner of the land, a company called Peball Pty Ltd ("the 52A agreement"). In common with a number of land development companies operating in the late 1980s, Peball Pty Ltd has since undergone liquidation. The Tribunal was informed that there have been a number of owners of the land subsequently and that the undeveloped land within the estate is now owned by the plaintiff.

5 The 52A agreement entered into between the then Shire of Melton and the owner of the land in 1987 was intended to provide a framework for the provision of road reserves, open space, a main drain, a vehicular crossing structure over Kororoit Creek, a pedestrian bicycle path along Kororoit Creek and the surface preparation of public open space both along Kororoit Creek and where transferred to the responsible authority for recreational or community purposes.

6 The 52A agreement was entered into in anticipation of the implementation of AM 436. It was expressed to come into effect upon development approvals which would be facilitated by AM 436 namely either the sealing of any plan of subdivision in respect of the subject land or any part thereof pursuant to the provisions of the Local Government Act 1958 ("the LGA"); or the grant of any permit under the planning scheme for any development on the subject land. Clause 2 of the 52A agreement provided:

[28]

"61 The s.52A agreement in this case is exhibit S6. It commences with some paragraphs that purport to be recitals setting out the then existing position including that the responsible authority and the owner had agreed to enter the agreement to come into operation concurrently with any sealing of any plan of subdivision of the subject land or part of it or the grant of any permit under the planning scheme for any development of the land after the planning scheme had been amended in the form of proposed planning scheme amendment No. 436. Clause 1 then goes on to define the parties and say that it is intended that the burden of the covenants on the part of the owner pursuant to the agreement are to run with the subject land and every part thereof.

62 Clause 3 then goes on to set out covenants being entered into by the owner intended to bind the owner. These include covenants dealing with widening of road reserves and intersections and the transfer of land involved to the council. After cl.3(f) there is a further provision, misnumbered (e) - there being an earlier (e) - dealing with public open space for passive and active recreation, stream and floodway provision, reservation for public purposes provisions of areas buildings and structures of historical or architectural interest and drainage with a total not to exceed 33.425 ha. Clause 4 provides for the transfer of the open space to the Shire, or if so directed, to the Melbourne and Metropolitan Board of Works.

63 Clause 6 provides for the public open space to include a continuous linear park way and drainage reserve of a certain width along Kororoit Creek and cl.8 provides for a continuous all weather seal coated pedestrian/bicycle path 1.8 metres wide within that area. Clause 7 provides for various matters to be done or undertaken at the expense of the owner and cl.9 refers to the removal of surface rock and re-grading to provide proper drainage of an area being part of the public open space and close to the creek. We have mentioned that a number of these things are no longer relevant or have been superseded. This one in relation to interfering with the surface and re-grading it to allow the use of motorised mowing equipment, in particular, is no longer appropriate. The relevant area includes an area of native grass land that is to be protected.

[70]

63 Once again it could not be said that a plan of subdivision complied with the requirements of the planning scheme relating to the form and content of the plan as required by the Subdivision Act unless it was generally in accordance with an approved development plan prepared in accordance with the planning scheme.

64 Further, as the Tribunal recorded, the statutory scheme governing provision of public open space has altered since the making of the 52A agreement. The consequences of s.18 of the Subdivision Act and the provisions of cl.52.01 of the Melton Planning Scheme are that a mandatory provision of 9% of the land is now required. Although the plaintiff contends that the 52A agreement requires substantially in excess of 9% of the relevant land to be provided for public open space, the relevant statutory requirements reinforce the view that the discretion with respect to approval of a development plan and in turn a permit to subdivide must be regarded as governed by the current legislation and the current planning scheme.

65 Accordingly, in my view the Tribunal was correct to answer the preliminary question raised before it as it did. Its discretion is not fettered by the provisions of the 52A agreement. It may be that the history of subdivision in the area including the provisions of the 52A agreement might be regarded as constituting background factual matters in some respects relevant to the Tribunal's discretion. Nevertheless, that discretion falls ultimately to be exercised by reference to the current controls.

The Procedural Question

66 Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 now provides that a party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding. "Order" is defined to include interim order. The right of appeal is subject to a requirement for leave. In my view if the Tribunal's decision on the preliminary question before it were to be reviewed by this Court the appropriate vehicle would in the normal course be an appeal pursuant to s.148 of the VCAT Act. Accordingly, there is a serious argument that the Court should not in a case such as this as a matter of discretion grant leave in the nature of certiorari, prohibition or mandamus even if such relief were otherwise justified.

67 I do not accept Mr Pitt's submission that the proceeding raises jurisdictional issues. The terms of the originating motion demonstrate that it is directed to alleged errors of law on the face of the record which record includes the reasons of the Tribunal by reason of s.10 of the Administrative Law Act 1978. The terms of the originating motion make plain that this is so. The originating motion states under the heading "Remedy Sought" the following:

[80]

[4] See [32] of the decision quoted above.

[5] See Ansett Transport Industries Operations Pty Ltd v Commonwealth of Australia [1977] HCA 71; (1977) 139 CLR 54 per Mason J at 76-77.

[6] [1994] VicRp 10; [1994] 1 VR 163

[7] per Marks and Gobbo JJ at 184

[8] above at 76

[9] A passage emphasised in the judgment of Marks and Gobbo JJ in City of Camberwell v Camberwell Shopping Centre Pty Ltd at 186.

[10] The defendant has issued a summons which has been adjourned for hearing together with the trial of this proceeding, seeking that the proceeding be dismissed on this basis.

[11] See Rules 5.05 and 56.01 of the Rules of the Supreme Court.

[12] See Rule 2.01

[13] The Tribunal stated: "[57] We do not agree that the failure to register has this significance. The agreement might have been registered, but still the covenants in it that purport to bind or fetter the responsible authority would not have that effect because it is contrary to the principles of public policy in relation to unfettered nature [sic] of public discretions, because of the legal authorities to that effect and because the exception, where a fetter by means of a contract can be valid, namely where there is statutory authority for such a fettering agreement, does not apply here. Apart from that we would be prepared to consider this matter on the basis of that which should have been done, pursuant to s.52B, had been done. As things turn out, it is not necessary to worry about that point as we find the covenants that purport to bind the responsible authority do not have that effect. They were not authorised by the statute."

[14] As Lord Greene MR stated in Ransom & Luck Ltd v Surburton Borough Council (1949) Ch 180 at 196 with respect to comparable legislation: "One would have expected that if the intention had been what Mr Blain says it was, the section would have expressly provided for what I may call mutuality, that both parties and the successors in title of the landowner should not only be bound, but should be entitled to the benefit of these covenants which he contemplates. Nothing of the kind is mentioned."

[15] The former Shire of Melton has since been extended and reconstituted pursuant to the Local Government Act 1989.

[16] [1985] VicRp 48; [1985] VR 433 at 463

[17] Ibid.

[18] [1979] VicRp 37; [1979] VR 347

[19] Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259

[20] [1996] VicRp 79; [1996] 2 VR 465

[21] Above at 481

[22] [2004] VCAT 2356, 8 December 2004

[23] [1955] HCA 21; (1955) 97 CLR 492

[24] (1999) 197 CLR 611 at 654-655

[25] Citing R v Judges of Federal Court of Australia; ex parte Pilkington ACI (Operations) Pty Ltd [1978] HCA 60; (1978) 142 CLR 113 at 127 and referring to further authority.

[26] See Maple Nominees v Whitvan Pty Ltd (1992) 29 ALD 223 at 227 and VBI Properties Pty Ltd v Victorian Civil and Administrative Tribunal [2003] VSCA 17.

At a glance

Court

Decision date

Before

Source

Judgment (80 paragraphs)

Parties

Cases Cited (5)