Plaintiff v Defendant

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:

"This agreement shall come into effect upon either -

(a) the sealing or confirmation 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; or

(b) the grant of any permit under the planning scheme for any development on the subject land -

after the coming into operation of the provisions contained in the amendment as exhibited pursuant to s.28 of the Act insofar as they affect the subject land, whichever be the sooner."

7 In the event AM 436 was overtaken by the implementation of the Planning and Environment Act 1987 ("the P&E Act") and its provisions were subsequently substantially implemented pursuant to another amendment of a new planning scheme made under that Act.

8 Following the implementation of this amendment, it appears the development of the estate has proceeded in stages which have worked north from the Western Highway. The land comprises 88.47 hectares in total area and the plaintiff now wishes to subdivide an area known as "The Point" which occupies a promontory around which Kororoit Creek loops. The Point has the potential to yield in the range of 800 to 1,000 residential allotments which the plaintiff intends would be subdivided and developed in sub-stages.

9 Save for a fringe along the Kororoit Creek which is subject to special controls responding to its environmental and landscape qualities, the bulk of The Point land is zoned Residential 1 under the Melton Planning Scheme and is also subject to a Development Plan Overlay.

10 The Residential 1 zone control requires a permit to subdivide the land.[1] The Development Plan Overlay in effect provides a requirement for a framework for subdivision.[2]

"A permit must not be granted to use or subdivide land, construct a building or construct or carry out works until a development plan has been prepared to the satisfaction of the responsible authority ...

A permit granted must:

• be generally in accordance with the development plan.

..."

11 Schedule 1 to the Overlay provides that a development plan must show:

• Detailed plans of sub areas within the plan as well as supporting documentation which assists to clarify the nature of development proposed.

• The relationship of the land to existing or proposed land uses on adjoining land.

• The proposed subdivision lot layout, the road network, pedestrian and bicycle network and open space and drainage reserves.

• The layout of any proposed Activity Centre.

• The proposed land uses for sub areas within the locality.

• The location of all vehicle and pedestrian access ways within, to and from the development.

• The location and layout of all car parking areas, loading bays and access to and from these areas.

• Details of all landscaping development proposed, including the types and species of plants and any arrangements for the maintenance of the landscaping after it has been established.

• The management of vegetation to minimise fire hazard and to ensure the safety or people and property.

• The stages (if any) by which the development of the land is proposed to proceed.

12 Schedule 1 further provides that before deciding to approve a development plan, the responsible authority must consider:

• The existing and possible future development and use of the land and of contiguous or adjacent land.

• The need for appropriate setbacks from residential areas.

• The provision of water, sewerage, drainage and electricity services.

• The orderly planning of the zone, including the management of traffic, the provision of pedestrian ways and open space.

• The need for financial or other contributions towards the provision of reticulated service infrastructure, community and social facilities and services, transport infrastructure and services.

• The provisions of the Melton East Strategy Plan and municipal planning policy.

13 Thus in order to proceed with the subdivision of The Point land the plaintiff must first have prepared a development plan to the satisfaction of the Council and secondly, obtain a permit for subdivision which must be generally in accordance with such development plan.

14 A development plan dated 23 July 2001 has been approved as satisfactory by the Council for The Point land, but this plan no longer reflects the plaintiff's aspirations for The Point land.

15 Accordingly, the plaintiff has submitted an alternative development plan and made application for a permit to subdivide the land generally in accordance with the alternative plan.

16 The Council has failed to approve the alternative development plan and in turn failed to grant a planning permit to subdivide in accordance with it.

17 The plaintiff in response has instituted proceedings in the Tribunal first seeking to have the alternative development plan approved pursuant to s.149(1) of the P&E Act 1987[3] and secondly, seeking to review pursuant to s.79 of the P&E Act the failure of the Council to grant a permit to subdivide.

18 By reason of the form of the control it can be seen that the permit appeal cannot succeed unless the s.149 proceeding resolves the dispute over the development plan.

19 When the matter came on before the Tribunal the responsible authority took the position summarised by the Tribunal as follows:

"24 The responsible authority takes the view that it has the duty and responsibility of determining whether the February plan should be approved, and whether the subdivision permit should be granted, on the basis of the planning merits of both those proposals judged on the basis of the law, including the planning scheme, as it stands at the time the decision is made. These two questions being now before the Tribunal on review, the responsible authority takes the view that the Tribunal should likewise determine these matters on their planning merits on the basis of the current planning laws including the current planning schemes.

25 On the face of it, this approach is correct, see Ungar v. City of Malvern [1979] VicRp 25; [1979] VR 259.

26 The responsible authority is not minded to approve the February plan or grant the subdivision permit because, in its view, insufficient provision is made in relation to public open space, road reserves and infrastructure provision."

20 Conversely, the plaintiff contended as follows:

"31 ... North Burnside Pty Ltd considers that the responsible authority, and the Tribunal on review, is not entitled to determine the approval of the development plan or the granting of a subdivision permit on the basis of the planning merits based on the current planning scheme. On the contrary, the company considers that the responsible authority, and in turn this Tribunal, is bound or 'fettered' by the s.52A agreement of 9 November 1987. The company contends that the responsible authority is bound by the agreement and is estopped from denying the application of the terms of the agreement.

21 The Tribunal observed with response to this condition:

33 The s.52A agreement in this case was made a long time ago, before the current PE Act, the so called 'Day 1' planning schemes that came into operation with the current Act on 16 February 1988, the later so called 'Day 2' planning schemes that came into operation in October 1989, before the current Victorian planning provisions were inserted in the PE Act and before the current Melton Planning Scheme, based on the Victorian planning provisions, came into operation. It was before the current Residential 1 zoning under the current planning scheme came into operation, and before the current Development Plan Overlay. It was also long before the current provision in the planning scheme at cl.52.01 in relation to public open space contributions. The s.52A agreement was entered in anticipation of the re-zoning of the land enabling it to be used for urban commercial and residential purposes. It is a fairly elaborate agreement and many of its provisions and covenants have been superseded so that they are no longer relevant or desirable, or in some cases even possible. The company, however, claims that this document, in effect, overrules the current planning laws to the extent that it is inconsistent with them. It claims that the predecessor responsible authority, namely the council of the previous Shire of Melton has already, and irrevocably, made its choice and committed itself in relation to the subdivision now being proposed more than 15 years later."

22 Faced with this threshold dispute the parties agreed on the third day of the Tribunal hearing that "the question of the s.52A agreement and its alleged constraints on current planning decisions should be treated as a preliminary matter in relation to which a preliminary decision should be made." Although this statement of the preliminary question was not as precise as is strictly desirable, the essential question which the Tribunal addressed by agreement was whether "the responsible authority is bound by the agreement and is estopped from denying the application of the agreement."[4]

23 The Tribunal, after setting out the relevant facts and referring to a number of authorities concluded by written decision dated 12 April 2005 that:

(a) There is a long standing line of authority relating to town planning approvals which establishes that a public authority such as the Council cannot ordinarily be constrained by prior agreement from exercising free judgment on the merits of discretion vested in it for a public purpose.[5]

(b) As the decision in City of Camberwell v Camberwell Shopping Centre Pty Ltd[6] demonstrates an authority like the Council may bind itself to fetter its discretion by contract if this is authorised by statute. Although not quoted by the Tribunal the following passage summarises the relevant principle:

"The judgments in Ansett make it clear that a self-imposed contractual fetter on the exercise of discretionary power is only unlawful where it is alone without power. Where the contract, which is said to have the effect of fettering the exercise of a statutory power or discretion in the future, is authorised by a power, it is lawful."[7]

(c) Section 52A of the Town and Country Planning Act 1961 ("the T&CP Act") did not authorise the Shire of Melton to fetter its future discretion in the manner for which the plaintiff contends. Again, although not quoted by the Tribunal the following passage from the judgment of Mason J in Ansett summarises the relevant principle:

"The decisions to which I have referred are all cases in which the contract or undertaking held to be invalid was one to which the repository of the power or discretion was a party. The contract or undertaking was therefore an anticipatory fetter by that person on his future exercise of the statutory power or discretion. At the same time because the contract or undertaking was not one authorised by the relevant legislation, or was incompatible with it, the contract or undertaking was invalid or ultra vires."[8]

..."[9]

24 Accordingly, the provisions of the 1987 agreement upon which the plaintiff sought to rely were held to be not binding upon the Council. Those provisions were summarised by the Tribunal as follows:

"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.

64 Clauses 10, 12 and 14 purport to bind the responsible authority.

65 Clause 10 provides that the responsible authority will accept the provision of road reserves and public open space in full satisfaction of the obligations of the owner for the provision of road reserves and public open space.

.... in full satisfaction of the obligations of the Owner for the provision of road reserves and Public Open Space in respect of the total development of the subject land for urban purposes and in particular, without affecting the generality of the foregoing, will not impose any condition upon any permission or consent which it is required to give under any legislation in respect of the subject land to provide additional road reserves or Public Open Space.

66 Clause 12 provides:

The responsible authority agrees that it shall not impose in any permit required to be obtained for the use or development of the subject land or any part thereof for an urban purpose any condition that is inconsistent with the provisions of this Agreement.

67 Clause 14 provides:

It is mutually agreed between the Owner and the Responsible Authority that the provisions of this agreement are intended to provide for the provision of main and collector road reserves, the provision of Public Open Space and the provision by the owner of public facilities in the course of or arising from the development of the subject land and every part thereof."

25 Clauses 10, 12 and 14 formed the basis of the plaintiff's position before the Tribunal and in turn formed the basis of its case before me.

26 The plaintiff now seeks to challenge the decision of the Tribunal on the preliminary question decided by it. The plaintiff seeks relief by way of judicial review setting aside that decision and compelling the Tribunal to proceed on the basis that its discretion is fettered by the 52A agreement. The Council resists the plaintiff's application on five principal grounds:

(1) It contends the proceedings are incompetent or defective;[10]

(2) It contends the 52A agreement has never come into effect;

(3) It contends the 52A agreement is not enforceable by the plaintiff against it.

(4) It contends the Tribunal's decision on the preliminary question was correct; and

(5) It contends the Court should not in any event intervene in the VCAT proceeding by way of judicial review when to do so would result in fragmentation of the proceeding and there is legislative provision for an appeal on a question of law.

27 I have come to the view that the fourth and fifth grounds are complete answers to the plaintiff's application and it is unnecessary to further consider the other matters save to observe:

(a) Whilst I accept that it is seriously arguable the originating motion is defective because it makes no adequate claim for relief[11], such deficiency might, if it were otherwise appropriate, be rectified by amendment even at this late stage;[12]

(b) Insofar as it is asserted the agreement has never taken effect in accordance with its terms, such allegation turns upon questions of fact upon which the Tribunal has not decided, and it is undesirable the Court enter into them unless strictly necessary.

(c) The content of the 52A agreement forms the factual context for the statutory construction argument raised by the preliminary question but this proceeding should not be resolved on the basis of questions of privity of contract for reasons which I shall further elaborate.

Section 52A

28 Section 52A of the Town and Country Planning Act provided at the time of the making of the 52A agreement:

"52A(1) Subject to this section, a responsible authority may enter into agreements with any owner of land in the area or areas covered by a planning scheme or interim development order for which it is the responsible authority.

(2) An agreement made pursuant to sub-section (1) shall be an agreement under seal under which the owner of the land binds himself to the covenant specified in the agreement.

(3) An agreement made pursuant to sub-section (1) may with the approval of the Minister be released by the responsible authority or modified or varied by an agreement between the responsible authority and all persons having an interest in the land burdened by any covenant contained in the agreement or are bound by the covenant.

(4) An agreement made pursuant to this section in relation to any land may provide for any one or more of the following matters:

(a) the prohibition restriction or regulation of the use or development of the land or the doing or carrying out of any matter or thing in relation to the land;

(b) the conditions subject to which -

(i) the land may be used or developed for specified purposes; or

(ii) any specified matter or thing may be done or carried out in relation to the land;

(c) any matter intended to achieve or advance an objective specified in any -

(i) approved planning scheme;

(ii) planning scheme deposited in accordance with s.28(1)(a); or

(iii) local development scheme deposited in accordance with s.59AB(1)(a) -

in respect of the land; and

(d) any matter ancillary or incidental to one or more of the above matters.

...

(9) An agreement made pursuant to this section shall not require authorise or allow anything to be done which would constitute a breach of any provision of the planning scheme, interim development order or order made under section 32(5) or any permit granted thereunder.

..."

29 Section 52B provided that an agreement made pursuant to s.52A in relation to land under the Transfer of Land Act 1958 should be recorded by way of a memorandum of the agreement on the relevant Crown grant or certificate of title. The responsible authority was required to make an application to the Registrar forthwith after making the agreement. Parallel provisions were made with respect to a memorial of agreement relating to land not under the operation of the Transfer of Land Act 1958. In turn s.52B(7) provided:

"Where any memorandum or memorial has been registered under this section the burden of any covenant in the agreement shall run with the land affected and the responsible authority shall have the power to enforce the covenant against any person or persons deriving title from the person or persons who entered into the covenant as if it were a restrictive covenant notwithstanding that it may be positive in nature or that it is not for the benefit of any land of the responsible authority."

30 In the present case the agreement was not registered pursuant to s.52B but the Tribunal indicated that it did not regard this failure as critical.[13] The recitals to the 52A agreement recorded:

"F The responsible authority and the owner have agreed that, without restricting or limiting their respective powers to enter into this agreement and insofar as it can be so treated, this agreement has to be treated as being an agreement entered into pursuant to s.52A of the Act."

31 Reference to s.52A demonstrates, however, that an agreement made pursuant to that section "shall be an agreement under seal under which the owner of the land binds himself to the covenant specified in the agreement." What is contemplated is not an agreement imposing mutual obligations upon the responsible authority and the owner of the land but an agreement under seal (and therefore not requiring consideration) under which the owner of the land covenants with respect to one or more of the matters set out in s.52A(4). The provisions of s.52B in turn provide that the burden of such a covenant runs with the land affected if the agreement is registered. As a consequence the responsible authority has the power to enforce the covenant against any person or persons deriving title from the person or persons who entered into the covenant as if it were a restrictive covenant. This statutory scheme does not provide for contractual obligations to be imposed upon the responsible authority which run with the land.[14]

32 Accordingly, the agreement (whatever its effect may have been as between the contracting parties) is not enforceable against the successors of the former Shire of Melton[15] at the instance of the plaintiff simply by virtue of the fact that the plaintiff is a successor in title to part of the land formerly owned by Peball Pty Ltd and forming part of the land the subject of the 52A agreement.

33 Nevertheless, although there is no evidence of assignment of any benefit of the agreement to the plaintiff, the plaintiff asserts that the defendant is estopped from denying the plaintiff is entitled to such benefit by reason of correspondence between a company associated with the plaintiff and the defendant in which the defendant affirms the mutual obligations arising under the 52A agreement. In this regard the Tribunal itself recorded:

"[34] It is true, of course, that ultimate subdivision of the land, including this last section up in the point, was in general contemplation at the time of the agreement. The responsible authority also admits that, at various stages since then, it has agreed or acknowledged that the s.52A agreement applies to and governs further works and development. ..."

34 It is unnecessary to resolve the difficulties raised by the plaintiff's contentions concerning estoppel by reason of the view I have reached as to the fundamental issue of construction governing the effect of the s.52A agreement.

The Construction Question

35 The central submission made on behalf of the plaintiff is that s.52A(4) enabled the responsible authority to permanently fix the conditions subject to which the land might be used or developed for specified purposes. As set out above, s.52A(4) provided that an agreement made pursuant to that section might provide for:

"the conditions subject to which -

(i) the land may be used or developed for specified purposes; or

(ii) any specified matter or thing may be done or carried out in relation to the land;"

36 The plaintiff submits that this constitutes an express power granted to the responsible authority to fetter its future discretion and the present case should be regarded as falling within the same class of cases as the City of Camberwell case to which I have referred above.

37 In my view, however, the power contained in s.52A(4) is constrained by s.52A(9). Section 52A(9) is intended to be ambulatory in its ongoing operation. It relevantly provides that a s.52A agreement shall not "authorise or allow anything to be done which would constitute a breach of any provision of the planning scheme, ... or any permit granted thereunder". The 52A agreement could not authorise a subsequent approval given in breach of the provisions of the planning scheme. The phrase "the planning scheme" in s.52A(9) is the planning scheme operative at the time the thing in issue is done. Likewise the reference to "any permit" refers to any permit imposing relevant conditions at that time.

38 A powerful consideration supporting this construction is that the alternative would enable a responsible authority and landowner to contract out of the public participation processes which the T& CP Act otherwise required as a necessary incident of the valid grant of a permit. If the plaintiff's contentions are correct the responsible authority could not, upon a permit application, respond to objections received from third parties with respect to conditions of subdivision specified by the 52A agreement. It is clear from the authorities referred to by O'Bryan J at first instance in Thorne v Doug Wade Consultants Pty Ltd[16] that a failure to comply with the mandatory notice requirements of the T&CP Act might result in a permit being declared invalid. The language of s.18B of the Act imposed a precondition to a determination to grant a permit.

"Where the responsible authority is of the opinion that the grant of a permit may cause a substantial detriment to any person other than the applicant the responsible authority shall not determine to grant the permit unless it first does one or other of the following acts or things ..."[17]

39 In the case of a large scale subdivision it is apparent that the possibility of substantial detriment to third parties cannot be regarded as hypothetical. In the case of subdivision of The Point land as Mr Pitt SC conceded during argument, notice would at the very least have been required to be given to the Melbourne and Metropolitan Board of Works as the authority responsible during the currency of the T&CP Act for the creek adjoining the land.

40 In Addicoat v Fox (No. 2)[18] Brooking J held that the notice provisions of the T& CP Act relating to permit applications supported the view that the power to modify the content of a permit application by the imposition of conditions was necessarily constrained by the content of what had been the subject of prior notice in accordance with the Act. Brooking J stated at 367:

"If, contrary to my view, the Tribunal did have power to direct the issue of a permit for a use or development which differed radically from the use or development to which the application for a permit related, the safeguard afforded by s.18B to persons to whom a substantial detriment might be caused would be much diminished. The importance of that safeguard is shown by SS Constructions v Ventura Motors Pty Ltd [1964] VicRp 32; [1964] VR 229, and Attorney-General v MMBW [1965] VicRp 19; [1965] VR 143; cf Scurr v Brisbane City Council [1973] HCA 39; (1975) 133 CLR 242."

41 In my view like considerations support the view that s.52A(9) is intended to be given ongoing force and effect. It was not the intent of s.52(4) that the ongoing operation of relevant planning scheme controls might be evaded by specifying conditions of development in a s.52A agreement. Such a construction would be contrary to the apparent intention of the T&CP Act read as a whole.

42 The exercise of the discretion to grant a permit to subdivide land pursuant to a planning scheme requires regard to be had to all matters relevant to the exercise of that discretion at that point in time.[19] To act otherwise is to act in 'breach of the planning scheme' to use the words of s.52A(9). The section forbids a responsible authority from contracting out of its obligations to give ongoing effect to the planning scheme applicable to a decision to approve a particular subdivision.

43 As noted by the Tribunal in the passage I have previously quoted clauses 10, 12 and 14 of the 52A agreement are as follows:

"10. The Responsible Authority shall accept the provision of road reserves and the provision of Public Open Space in accordance with the Owner's covenants contained in this Agreement in full satisfaction of the obligations of the Owner for the provision of road reserves and Public Open Space in respect of the total development of the subject land for urban purposes and in particular, without affecting the generality of the foregoing, will not impose any condition upon any permission or consent which it is required to give under any legislation in respect of the subject land to provide additional road reserves or Public Open Space.

12. The Responsible Authority agrees that it shall not impose in any permit required to be obtained for the use or development of the subject land or any part thereof for an urban purpose any condition which is inconsistent with the provisions of this Agreement.

14. It is mutually agreed between the Owner and the Responsible Authority that the provisions of this Agreement are intended to exhaustively provide for the provision of main and collector road reserves, the provision of Public Open Space and the provision by the owner of public facilities in the course of or arising from the development of the subject land and every part thereof."

44 In my view cls. 10, 12 and 14 of the 52A agreement must either be regarded as void or as subject to the right of the responsible authority not to perform the contract if their performance would be inconsistent with statutory duties to exercise relevant discretion pursuant to the planning scheme in force at the relevant time thereafter. Because of their direct inconsistency with the retention of a future discretion concerning permit conditions, the better view is that they are void. They purport to prevent the due exercise of the relevant discretion at the time required by law.

45 The relevant principles were stated by Callaway JA in another context in L'Huillier v State of Victoria[20]:

"I put to one side cases where the discretion is properly exercised in advance at the time the contract is made. What I am about to say relates only to contracts where the discretion must be exercised in the future in the light of the public interest at that time or whatever other factors may be made relevant by the nature of the power, its purpose or any applicable statute. In such a case a provision of the contract will be void if it purports to prevent the due exercise of the discretion at the time required by law. Goldsbrough's Case and The Amphitrite were both cases of that kind. See also Ayr Harbour Trustees v. Oswald (1883) 8 App.Cas. 623 at 634, 638 and 640 and South Australia v. The Commonwealth [1962] HCA 10; (1962) 108 C.L.R. 130 at 141. Unless a contract has that meaning on its true construction, the relevant provision will not be void. Instead it will be read subject to the repository's right not to perform the contract in the future if performance would be inconsistent with a proper exercise of the discretion. In other words there is a contract, but the repository of the discretion reserves the right not to perform it if performance is inconsistent with his or her common law or statutory duty when the time for performance arrives.[21]

46 Assuming that the current Melton Planning Scheme is to be regarded as "the planning scheme" for the purposes of s.52A(9) then in the circumstances which confronted the Tribunal the plan of subdivision could not comply with the requirements of the planning scheme as to the form and content of the plan (including the provision of reserves) unless it was generally in accordance with an approved development plan.

47 In turn the Council and the Tribunal were required to exercise their discretion with respect to the approval of a development plan by reference to mandatory criteria.

48 The Council and the Tribunal were bound to give effect to the planning controls in force at the time of their decisions with respect to both the development plan and the permit. They were further required to have regard to all relevant factual matters as at the time of decision.

49 Section 52A(4) did not give the then responsible authority the power to stipulate the conditions for future subdivision of the land irrespective of a subsequent planning scheme controls and changes in circumstances.

50 If contrary to the assumption made above the Melton Planning Scheme is not to be regarded as "the planning scheme" in terms of s.52A(9) the plaintiff cannot readily rely on the 52A agreement as conditioning the exercise of the Council's power pursuant to such scheme. Either the 52A agreement operates with respect to the current scheme made pursuant to the P&E Act or it does not. The plaintiff contends that it does have continuing effect by reason of transitional provisions contained in the P&E Act.

51 I turn then to the requirements of legislation subsequent to the T&CP Act. The P&E Act provides by s.206:

"Except as in this Act expressly or by necessary implication provided all persons, things and circumstances appointed or created by or under any Act which is amended or repealed by this Act or existing or continuing under that Act immediately before the commencement of the item in the Schedule amending or repealing that Act continue under and subject to this Act to have the same status, operation and effect as they respectively would have had if that Act had not been so amended or repealed."

52 The T&CP Act was repealed by the P&E Act and the plaintiff contends the 52A agreement continues to have force and effect by reason of s.206.

53 Section 206, however, provides not only that circumstances continuing under the repealed Act shall continue under the P&E Act, but also that they shall be "subject to this Act." In my view this necessarily conveys that the agreement insofar as it may have had continuing operation is subject to the provisions of the P&E Act and planning schemes made thereunder.

54 Section 207 of the P&E Act further relevantly revoked the provisions of the Melbourne Metropolitan Planning Scheme, being the planning scheme referred to in the 52A agreement. Clause 1(c) of the 52A agreement provides:

"The Responsible Authority makes each of the covenants to be performed by it on its own behalf and on behalf of its successors from time to time as the responsible authority in respect of the subject land under the Planning Scheme."

"(b) Any arrangement, contract or agreement entered into by or on behalf of a responsible authority in relation to a revoked scheme or order that could be so entered into under this Act in relation to the relevant new planning scheme may be enforced by or against the responsible authority for the new planning scheme; ..."

56 The transitional provisions thus provided that the pre-existing agreement was enforceable against the responsible authority for the new planning scheme if it could be "entered into under this Act."

57 Such an agreement could only be entered into pursuant to Division 2 of Part 9 of the P&E Act. Section 174 states that an agreement made pursuant to that division may provide for any one or more of the following matters:

"(a) the prohibition, restriction or regulation of the use or development of the land;

(b) the conditions subject to which the land may be used or developed for specified purposes;

(c) any matter intended to achieve or advance -

(i) the objectives of planning in Victoria; or

(ii) the objectives of the planning scheme or any amendment to the planning scheme of which notice has been given under s.19;

(d) any matter incidental to any one or more of the above matters."

"An agreement must not require or allow anything to be done which would breach a planning scheme or a permit."

59 As I have stated a permit in the present case could not be granted under the current Melton Planning Scheme unless the plan of subdivision were generally in accordance with a development plan. In turn the approval of a development plan required the exercise of an independent discretion by the responsible authority having regard to mandatory considerations.

60 Once again, a powerful factor encouraging the view that s.180 is to be given substantial effect is that to do otherwise would enable a responsible authority to evade its obligations to give notice to affected third parties and in turn to properly consider such objections. Under the P&E Act such parties may be referral authorities pursuant to s.55 or persons notified pursuant to s.52. Section 60 requires a responsible authority before deciding on an application to consider all objections and other submissions which it has received and any decision and comments of a referral authority which it has received. In turn s.84B requires the Tribunal in determining an application for review relating to a planning permit, to take into account any matter which the responsible authority was required to take account of in making its decision.

61 It follows that even if s.52A(4) of the T&CP Act were not constrained by s.52A(9), s.180 of the P& E Act would prevent the 52A agreement being given the effect for which the plaintiff contends. In Solid Investments Australia Pty Ltd v Greater Geelong City Council & Anor[22] Morris J sitting as President of the Tribunal was of the view at[54] that:

"... section 180 of the Act reflects the primacy of the planning scheme and any relevant permit over a section 173 agreement. The language used in section 180 of the Act is absolute; it does not depend upon the exercise of any discretion. Two things follow from this. First, whether or not an agreement does or does not require or allow anything to be done which would breach a planning scheme or a permit should be regarded as a jurisdictional fact; that is, a fact to be determined by a court or tribunal. Second, the parliament intended that an agreement, or part of an agreement, that did not comply with section 180 of the Act be invalid."

I agree.

62 Furthermore, it is not only the P&E Act which has altered the relevant statutory scheme. The process of subdivision is now governed by the provisions of the Subdivision Act 1988 ("the Subdivision Act"). Section 6(1) of that Act provides the Council must certify a plan of subdivision within the prescribed time if -

"the plan complies with this Act, the regulations, and those 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; ..."

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:

"1. Pursuant to Order 56 of the Supreme Court Rules the Plaintiff applies to review the preliminary decision ('the decision') of the Victorian Civil and Administrative Tribunal ('the Tribunal') dated 12 April, 2005 in Applications No. P1937/2004 and P2203/2004 on the basis that the Tribunal erred in law within the decision by mistakenly concluding that it could not consider the provisions of the S.52A Agreement entered into pursuant to S.52A of the Town and Country Planning Act 1961 on the basis that the agreement purports to impose restrictive covenants and constraints or fetters on the future exercise of discretions entrusted to the Responsible Authority and are not authorised by legislation and are not legally valid.

2. The question of law to be determined by the Court is whether the Tribunal erred in law in concluding that the S.52A Agreement, purports to impose restrictive covenants and constraints or fetters on the future exercise of discretions entrusted to the Responsible Authority in the public interest, and was not authorised by legislation and was not legally valid."

68 It has been accepted at least since the decision of the High Court in Tooth & Co Ltd & Anor v The Council of the City of Parramatta[23] that the existence of a statutory right of appeal in town planning matters is relevant to the question of whether relief in the nature of the prerogative writs should be granted with respect to the conduct of a statutory authority or tribunal. The obvious reason for this is that Parliament has made clear what it regards to be an appropriate framework for the review of errors of law. As Dixon CJ observed in the Tooth & Co case:

"No doubt it would not be right to treat the provisions creating them (i.e. statutory remedies) as excluding as a matter of legislative intention an application for mandamus where there has been a clear failure on the part of a council to perform a public duty imposed upon it. But where the legislature has provided for the very description of case a remedy designed as appropriate and adequate, a court should be careful that mandamus is not used to avoid recourse to the remedy or as a substitute for it. The general rule is that the court exercises its discretion against granting a writ of mandamus where a remedy is provided by way of appeal or the like which is equally convenient, beneficial and effective. If the writ of mandamus does not provide the party with a more convenient and better remedy, the court in such a case, leaves the party with that which has been provided."

69 To similar effect Gummow J observed in Minister for Immigration and Multicultural Affairs & Anor ex parte Eshetu[24] that the existence of a right of appeal with special leave to the High Court under s.73(2) of the Constitution is a relevant consideration in considering whether prerogative relief should be granted in the original jurisdiction of the High Court.

"These considerations have encouraged the view in this Court that it is desirable that the Federal Court "should be permitted to exercise its jurisdiction without interference by this Court by way of grant of prohibition except in those instances where the matter in question plainly gives rise to an absence or excess of jurisdiction'."[25]

70 In the present case it is clear that the legislature has established a particular framework for appeal on questions of law to this Court. Moreover, as I have stated, this is not a case where the matter in question plainly gives rise to an absence or excess of jurisdiction. In these circumstances I would not have been prepared to exercise my discretion to grant relief in the nature of certiorari, prohibition or mandamus in the present matter even if I had regarded the plaintiff's attack on the Tribunal's decision with respect to the preliminary question of law as having substance to it.

71 A particular matter supporting this conclusion is that upon an application for leave pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998, the appropriateness of fragmentation of the proceedings would need to be considered[26].

Conclusion

72 For the above reasons the originating motion must be dismissed. The history of subdivision of the area including the 1987 agreement might potentially be relevant to the Tribunal's consideration of what is fair, reasonable and currently appropriate, but the plaintiff cannot rely on the 1987 agreement to avoid the requirements of the current scheme.

[1] Clause 32.01-2

[2] Clause 43.04-1

(1)

A specified person may apply to the Tribunal for the review of-

(a)

a decision of a specified body in relation to a matter if a planning scheme specifies or a permit contains a condition that the matter must be done to the satisfaction, or must not be done without the consent or approval, of the specified body; or

(d)

if there is no prescribed time for a decision of a kind referred to in paragraph (a), (b) or (c), a failure of a person or body to make that decision within a reasonable time after the matter is referred to it."

[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.