Plaintiff v Defendant

1 In 2016, Arshad Ali Khan ('the plaintiff') and his partner Shagufta Riaz purchased a house on a block of land at Dedina Walk, Dandenong. The property is in a subdivision named Meridian Estate, which was developed in 2009-2010 by VicUrban, the developer, and the Melbourne Water Corporation, the land owner, under Planning Permit PLN07/0439.03 ('the planning permit'). The planning permit was issued by Greater Dandenong City Council ('the Council') subject to the Greater Dandenong Planning Scheme, and provided for the 'staged subdivision of the land into residential lots, with associated civil works'.

2 After moving into the property, the plaintiff observed a number of issues regarding development of the subdivision, particularly with respect to safety. He began communicating with the Council, pointing out that in his opinion, aspects of the subdivision contravened the relevant planning scheme and planning permit, 'especially in terms of road size, kerbing and paths, including footpaths and shared zones.[1]

3 In response to the plaintiff's concerns, the Council advised that all of the relevant planning criteria and legislative requirements had been met, and there was nothing that it could do.

4 As the Council refused his requests for rectification of the claimed failings, the plaintiff made a series of applications to the Victorian Civil and Administrative Tribunal ('VCAT'), seeking an enforcement order for the planning permit, pursuant to s 114 of the Planning and Environment Act 1987. The applications were made against a number of bodies that he regarded as having responsibility over the rectification of the said faults 'due to alleged contraventions in the relevant planning scheme, planning permit, and endorsed plans.'[2]

(a) a lack of footpaths;

(b) roads that were insufficiently wide;

(c) roads of insufficient strength, and inappropriate geometrical shaped intersections and driveways; and

(d) insufficient drainage, and a lack of kerbs and channels for water management.

6 Each of the applications made by the plaintiff was rejected by VCAT, primarily on the basis that VCAT lacked jurisdiction to grant the relief sought.

7 Following VCAT's rejection of his third application, on 15 August 2017 the plaintiff filed an originating motion seeking leave to appeal the rejection pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act'), and requesting -

the Supreme Court to overturn the Member of VCAT's decision as the application is within the due jurisdiction of the Tribunal under PLANNING AND ENVIRONMENT ACT 1987 PART 6 - ENFORCEMENT AND LEGAL PROCEEDINGS Division 1 - Enforcement orders - SECTION 114 and [a] hearing should be held by at VCAT.

8 Specifically, the plaintiff seeks for this Court to set aside the orders made on 17 July 2017 by the VCAT Member and that the matter be remitted to VCAT for hearing.

9 In the proceeding before me the plaintiff conducted his arguments unrepresented by legal counsel. Regrettably, the plaintiff's request, which formed his ground of appeal, is imprecisely drafted. However, the intent is clear enough. The plaintiff claims VCAT erred in concluding that it lacked the jurisdiction to hear his complaint and make enforcement orders.

(1) A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding -

(a) if the Tribunal was constituted for the purpose of making the order by the President or Vice President, whether with or without others, to the Court of Appeal with the leave of the Court of Appeal; or

(b) in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.

(7) The Court of Appeal or the Trial Division, as the case requires, may make any of the following orders on an appeal -

(a) an order affirming, varying or setting aside the order of the Tribunal;

(b) an order that the Tribunal could have made in the proceeding;

(c) an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court;

(d) any other order the court thinks appropriate.

11 Part 6 of the Planning and Environment Act 1987 provides the legislative regime in respect of enforcement orders and legal proceedings. Pursuant to s 114(1):

A responsible authority or any person may apply to the Tribunal for an enforcement order against any person specified in subsection (3) if a use or development of land contravenes or has contravened, or, unless prevented by the enforcement order, will contravene this Act, a planning scheme, a condition of a permit or an agreement under section 173.

12 Section 119 of the Planning and Environment Act 1987 provides that an enforcement order made by the Tribunal -

(a) must specify -

(i) the use or development which contravenes or has contravened or will contravene this Act or the planning scheme, permit condition or agreement; and

(ii) any other prescribed information; and

(b) may direct any person against whom it is made to do any one or more of the following -

(i) to stop the use or development within a specified period; or

(ii) not to start the use or development; or

(iii) to maintain a building in accordance with the order; or

(iv) to do specified things within a specified period -

(A) to restore the land as nearly as practicable to its condition immediately before the use or development started or to any condition specified in the order or to any other condition to the satisfaction of the responsible authority, a Minister, public authority, municipal council, referral authority or other person or body specified in the Order; or

(B) to otherwise ensure compliance with this Act, or the planning scheme, permit condition or agreement under section 173.

13 The plaintiff brought three applications to VCAT in support of his claims. On each occasion he appears to have represented himself. It is the third application that has resulted in the appeal to the trial division of this Court. In order to put the third application into overall context, it is useful to briefly summarise the first and second applications.

14 The plaintiff made the first application to VCAT on 17 January 2017 naming the Council as the respondent. The application was for the cancellation or amendment of the planning permit under ss 87 and 89 of the Planning and Environment Act 1987. [3]

15 On 24 February 2017, a VCAT member made orders striking out the application pursuant to s 75 of the VCAT Act on the basis that the application was misconceived. In written reasons, the member expressed two reasons for the striking out of the application. Firstly, the plaintiff had no standing to bring the proceeding as he had no interest that would have allowed him to object at the time the planning permit was granted. Secondly, and of greater significance to the present proceeding, the member concluded that the Tribunal could not make the orders sought where the approved development had been completed. The member held that:

by virtue of section 88 of the Act, the Tribunal cannot direct the cancellation or amendment of a permit where the approved development is complete. In the case of subdivision, this has been held by the tribunal to be the registration of the plan of subdivision. In this case the subdivision was clearly complete, with statement of compliance issued by the responsible authority demonstrating that all civil works and requirements of the permit were met to its satisfaction. Individual titles issued many months ago. There is therefore no capacity to grant the relief that this applicant seeks.

16 The plaintiff made a further application on 20 March 2017 and again relief was sought against the Council.[4]

17 This application sought the enforcement of the same planning permit under s 114 of the Planning and Environment Act 1987. The relief proposed was 'a complete assessment by an independent consultant in consultation with the local community and make the estate in compliance with the Council's Subdivision Design Manual'. The plaintiff nominated the specific areas of concern that warranted attention in his opinion.

18 This application was also struck out pursuant to s 75 of the VCAT Act as being misconceived where it was brought against the Council on the basis that the Council approved the permit application. The VCAT member held:

Section 114(3) of the Planning and Environment Act 1987 specifies persons against whom an enforcement order may be made, and the Council is not such a person in terms of the breaches alleged.

20 The third application (application P1283/2017) made 6 June 2017 was expressed as being an application for enforcement of the planning permit under s 114 of the Planning and Environment Act 1987. This application named the respondents as Places Victoria and the Melbourne Water Corporation.

21 In essence, the relief sought was the same that founded the plaintiff's second application, and directed towards 'a complete assessment by an independent consultant in consultation with the local community and make the estate in compliance with the Council's Subdivision Design Manual'.[5] The plaintiff supplemented his third application with further written material, which he provided to VCAT. The plaintiff alleged breaches of the planning scheme, along with breaches of conditions 9, 23, 27, 29 and 20.1 of the planning permit.

22 By letter dated 22 June 2017, VCAT advised the plaintiff that, inter alia, pursuant to s 71 of the VCAT Act the principal registrar may reject an application if it does not comply with the Act, regulations or rules. The deputy registrar, as delegate of the principal registrar, advised:

I have rejected your application on the grounds that the Tribunal does not have jurisdiction as the statement of compliance has been issued, separate files have been created in accordance with the plan of subdivision and the planning permit has been spent.[6]

23 In response, the plaintiff sought for the rejection to be referred to the Tribunal for review. He stated in a letter dated 23 June 2017, in effect, that the principal registrar was wrong in rejecting his application on the basis that he was a resident of the relevant estate, that there was nothing in s 114 of the Planning and Environment Act 1987 that stated he was not entitled to make the application he did, and that the application was made against a relevant person.

24 The matter was referred for hearing before the Tribunal on 14 July 2017. Pursuant to an Order of 17 July 2017, the member confirmed the decision of the principal registrar to reject the application 'due to the Tribunal's lack of jurisdiction to grant the relief sought'.

25 Thus, VCAT dismissed each of the plaintiff's three applications for relief on the basis that it had no jurisdiction to entertain the proceedings.

26 At the hearing before me the plaintiff did not have legal representation, and presented his arguments personally.

27 In his written outline of argument dated 23 October 2017 the plaintiff argued, inter alia, that:

(a) his application to VCAT was made due to alleged contraventions in the relevant planning scheme, planning permit and endorsed plans;

(b) VCAT's conclusion that the Tribunal did not have jurisdiction due to the statement of compliance being issued, separate files having been created in accordance with the plan of subdivision, and the planning permit having been 'spent' is wrong;

(c) a consequence of VCAT's decision is that pt 6 of the Planning and Environment Act 1987 is 'nullified'. This is especially so in cases where a development has been completed, and in circumstances where contraventions are subsequently identified, the buyer is forced to take the brunt of the consequences;

(d) the correct interpretation of the legislative provisions should lead to the conclusion that the planning permit is not spent, and that the conditions of a planning permit remain enforceable at any time;

(e) there are no time or stage limits set out in pt 6 of the Planning and Environment Act 1987 as to 'when' or 'when not' an application for an enforcement order could be rejected or accepted by VCAT;[7]

(f) as a result of the planning permit not being spent, VCAT has full authority and jurisdiction to hear the matter, and to take action; and

(g) accordingly, he argued that VCAT was wrong in law in its conclusion that the permit was spent and as a result, the Tribunal had the power to make the enforcement orders he seeks.

28 In written submissions dated 17 May 2018 the plaintiff provided supplementary arguments in which he argued that VCAT erred in finding that:

(a) only the Subdivision Act 1988, and not the Planning and Environment Act 1987, has a role to play in assessing compliance with the planning permit in relation to roads and drainage; and,

(b) the Tribunal did not have jurisdiction because a statement of compliance had been issued, the permit was spent and the issue of a statement of compliance is conclusive evidence that the public works permitted by the certified plan of subdivision have been carried out in accordance with the planning permit.

29 The submissions appeared to be an attempt to refine the plaintiff's original arguments and he reiterated the argument that the planning permit had not been exhausted.

30 The plaintiff accepted that once a subdivision has been completed with new titles issued, the clauses relating to procedural mechanisms for the subdivisions of land will be spent and no longer have any independent ongoing operation. However, he argued that a number of clauses in the permit seek to create continuing future obligations, including compliance with the endorsed plans. It is submitted that as a result, these provisions of the planning permit have ongoing operation, and it follows that enforcement orders can be made.

31 In support of his arguments the plaintiff referred to a number of decided cases. These included Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472; Cope v Hobsons Bay City Council [2004] VCAT 2487; Whelan v Baw Shire Council (2004) (unreported, Civil and Administrative Tribunal, Vic, P2793/2004, 05 November 2004); Bayside City Council v Sullivan [2000] VCAT 672; Benedetti v Moonee Valley City Council [2005] VSC 434; and Box v Moreland CC [2014] VCAT 246.

32 Initially VCAT informed the Court that it would not take an active role in the proceedings but indicated that consistently with the principle expressed in R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35, it would be bound by the decision of the Court.[8] However, that position changed and on the last occasion of hearing the defendant appeared and made submissions specifically stated to assist the Court.

33 The defendant pointed out that ss 114 to 119 of the Planning and Environment Act 1987 empower the Tribunal to make enforcement orders if the use or development of the relevant land contravenes the compliance of a condition of a permit or a planning scheme. However, where a planning permit relates to subdivision and there is an issue relating to matters such as roads and drainage, the question is to be determined pursuant to the provisions of the Subdivision Act 1988.

34 The defendant submitted that as the planning permit related to a staged subdivision of land into residential lots, the Subdivision Act 1988 was relevant to the determination of the issues in this proceeding.

35 The defendant submitted that plans of subdivision in the present case were certified and registered under the Subdivision Act 1988. Further, pursuant to s 6 the relevant local council must certify a plan of subdivision if it complies with the Subdivision Act 1988. The defendant argued that pursuant to s 13 of the Act, the fact of certification was conclusive evidence that the provisions relating to certification had been complied with.

36 Under Part 2 of the Subdivision Act 1988, headed 'Certification of Plans', s 6 relevantly states:

What must the Council do?

(1) The Council must certify a plan within the prescribed time if -

(a) 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; and

(b) the land is under the Transfer of Land Act 1958 or steps have been taken to bring the land under the Act;

37 Further, the defendant referred to ss 13, 16, 17, 21 and 22 of the Subdivision Act 1988 in support of the contention that the Act provides a legislative scheme comprising a number of steps ultimately leading to the registration of the certified plan and the issuing of new titles by the Registrar of Titles.

38 It was submitted that pursuant to s 21 of the Subdivision Act 1988 a council must issue a statement of compliance where it is satisfied that all requirements under the Planning and Environment Act 1987 and the Subdivision Act 1988 have been complied with. Once this has taken place, the certified plan may be registered by the Registrar of Titles. Upon registration occurring, former lot numbers of the previously existing land become extinguished and new certificates of title are created for the newly subdivided plots of land.

39 In referring to the present case, the defendant submitted that the statement of compliance that was issued evidenced the completion of works, including as they related to roads and drainage. The defendant further pointed to the fact that the plaintiff had purchased a separate title for his property. Thereby, it was submitted that the planning permit granted in respect of the former lot numbers had been exhausted because the title of the land to which the permit related had been cancelled and new titles issued.

40 Finally, it was submitted that 'where a planning permit has been exhausted, the Tribunal ceases to have any jurisdiction to enforce it'.[9]

41 The first step for the plaintiff to succeed in this matter is to satisfy the Court that leave to appeal should be granted.

42 In Secretary, Department of Premier and Cabinet v Hulls,[10] the Court of Appeal set out the principles to be applied when an appeal pursuant to s 148 of the VCAT Act is brought. In short, the plaintiff must identify a question of law, as distinct from a question of fact, which is important to the success or failure of the appeal. That question of law must be such that if it is proven that there is an error, the appellant's claim 'will thereby be advanced'.[11]

43 Phillips JA, with whom Tadgell and Batt JJA agreed, observed that:

it is not possible to lay down, in advance, any useful guideline on the degree to which the court from which leave is sought must be satisfied that the question of law which has been identified is arguable in the would-be appellant's favour. For myself, I am attracted to the proposition articulated in Niemann, that the decision below should be 'attended by sufficient doubt to justify the grant of leave appeal'. That seems to me to leave open what is 'sufficient', while at the same time confirming that there must be doubt 'sufficient...to justify the grant of leave'. Beyond that it is difficult to be more precise.[12]

Once a question of law has been identified which bears directly upon the relief which will be sought on the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, it may be supposed that leave will ordinarily go if the order below is a final order. That must always be subject to its being just to grant leave, a consideration which will in some cases be determinative.[13]

45 The principles laid down in Secretary, Department of Premier and Cabinet v Hulls were followed in Myers v Medical Practitioners' Board of Victoria with the Court of Appeal confirming that the decision to grant leave is a discretionary one.[14]

46 The case of Manderson v Wright [2016] VSC 677considered the expiry of conditions in a subdivision planning permit upon the issue of new titles. Neighbours on adjacent blocks of land were in dispute over one party removing native trees and other indigenous vegetation in order to construct an extension on a house. The relevant allotments formed part of a subdivision, and a restriction had been recorded on each of the titles preventing owners from developing their lots other than in accordance with a neighbourhood design plan approved by the City of Greater Geelong. One of the neighbours removed native trees from an allotment and proceeded to build, and the other sought an injunction requiring the removal of buildings and reinstatement of the land.

47 An application for a 14-lot subdivision had been made to the Geelong Council following which they issued a subdivision planning permit with conditions, including that development be in accordance with a neighbourhood design plan. The Council certified the plan of subdivision with a restriction preventing development other than in accordance with the design plan. The meaning and effect of that restriction was in issue in the case.

48 The question arose whether the subdivision planning permit was still in force.[15] Emerton J observed that the permit contained, like all subdivision permits, a number of conditions, which included requirements to provide drainage, footpaths, and vehicle access barriers. The plaintiff submitted that conditions relating to the neighbourhood design plan involving restrictions on building and development and removal of trees and vegetation imposed continuing obligations upon landowners and that they remained enforceable against the owners of the lots. The plaintiff submitted that the subdivision planning permits prohibited the landowners from removing trees and vegetation. On the other hand, the defendant submitted that the subdivision planning permits no longer had any force or effect generally and specifically.

49 Emerton J referred to the decision in Hillpalm Pty Ltd v Heaven's Door Pty Ltd,[16] in which it was held that 'a condition imposed in a permit for the subdivision of land could not be enforced against a new owner of a lot created by the subdivision'.[17] The High Court of Australia had noted that if a continuing obligation or a right in rem was created to affect a later owner of a lot in a subdivision, then this would raise a question as to consistency with the effective operation of the Torrens title system.

50 Her Honour also referred to Cope v Hobsons Bay City Council[18] where Morris J, sitting as President of VCAT, considered whether a planning permit was spent following the completion of the development which was authorised by the planning permit. His Honour concluded that the answer as to whether a planning permit had continuing relevance after the completion of the development depended on the nature of the development and the form of the permit. His Honour referred to the general acceptance in Victoria that once a subdivision has been effected and new titles issued, the permit is no longer relevant. Morris J noted:

Similarly a condition imposed upon a subdivision permit requiring the provision of building envelopes has been conceded to be of no independent force or effect after the subdivision has been carried out.[19]

The President observed that the decision in Hillpalm was consistent with the principle that once the subdivision has been effected and new titles have been issued, the planning permit for the subdivision is no longer relevant. He expressed the 'tentative view' that if an obligation imposed upon a subdivider had not found its way into or become attached to the title of a lot, it could not bind the new owner of the lot, for this would be inconsistent with s 42 of the Transfer of Land Act 1958 (Vic).[20]

as a general rule, a planning permit for a subdivision will be spent once the plan of subdivision has been registered and new titles have issued. Any conditions in the permit that are intended to be carried over to bind the owners of the new lots can be attached to the new lots by the registration of a restrictive covenant on the new titles or by a registered agreement made under s 173 of the Planning and Environment Act 1987 (Vic).[21]

53 The present plaintiff's circumstances do not involve the transfer of any obligation upon him. Instead, the plaintiff argues that the obligation has survived the registration of the subdivision and the creation of new titles now rests upon the VCAT respondents, namely Places Victoria, and the Melbourne Water Corporation.

54 Section 114 of the Planning and Environment Act 1887 provides the power for a person to apply to VCAT for an enforcement order against any person specified in sub-s 114(3) of the Act. Those nominated are the owner of the land, the occupier of the land, any other person that has an interest in the land, and any other person by whom or on whose behalf the use or development was, is being, or is to be carried out.

55 As pointed out by the plaintiff, it is correct to observe that s 114(3) does not explicitly provide a time limit on an application for enforcement orders. Furthermore, it may be argued that Places Victoria and the Melbourne Water Corporation could fall within the description under s 114(3)(d) of persons amenable to the making of an enforcement order. However, in my opinion due to the provisions of the Subdivision Act 1988 that have been discussed above, with the issuing of the statement of compliance, the creation of separate files, and the registration of new titles, the planning permit had no relevance to the two respondents in the VCAT application.

56 In the present case, the planning permit allowed for a staged subdivision of the land into residential lots, with associated civil works, all in accordance with the endorsed plans. Relevantly, the conditions in the permit relating to the complaints made by the plaintiff were conditions precedent to the issue of the statement of compliance or the commencement of construction. Accordingly, they were clearly not intended to survive the completion and registration of the subdivision.

57 Additionally, condition 9 provided that the works were to be carried out 'to the satisfaction of the Responsible Authority'. The 'Responsible Authority' is the Greater Dandenong City Council.

58 The Council issued the statement of compliance on 3 May 2011 pursuant to s 21 Subdivision Act 1988 for the 'whole of the above plan' (being PS639365U). Thereby, the Council stated that it was satisfied that the relevant conditions had been complied with, and that 'requirements under Parts 2 and 3 of the Subdivision Act 1988 have now been satisfied'.[22]

59 Pursuant to s 21 of the Subdivision Act 1988, the Council having certified the plan of subdivision and issued the statement of compliance, is then conclusive evidence that the requirements under the Subdivision Act 1988 have been met. Accordingly, and consistently with the conclusions of Emerton J in respect of the conditions that were relevant in that case, the subdivision planning permit is spent and was not intended to survive the registration of the plan of subdivision.[23]

60 The issue to be decided in this appeal is whether the VCAT member was legally correct in confirming the earlier decision of the Deputy Registrar to dismiss the application due to the Tribunal's lack of jurisdiction to grant relief.

61 I have concluded that VCAT was correct in law in deciding that it had no jurisdiction to hear the claim made against these defendants. The plaintiff specifically requested VCAT to make enforcement orders against the stated defendants. It had no power to do so. It is to be noted that this conclusion regarding the jurisdiction of VCAT does not involve a determination of the plaintiff's substantive complaints seeking rectification arising from alleged contraventions of the relevant planning scheme, planning permit, and endorsed plans. The resolution of these issues was not within the bounds of the limited nature of this proceeding.

62 In the circumstances of this case, I grant leave pursuant to s 148 of the VCAT Act. However, I dismiss the appeal.

63 Due to VCAT's indication at the hearing of the matter, I will make no order for costs.

[1] See Affidavit of the plaintiff filed 15 August 2017, 2.

[2] Plaintiff's outline of submissions, 1.

[3] Application for Enforcement Order dated 13 January 2017.

[4] Application for Enforcement Order dated 16 March 2017.

[5] Application for Enforcement Order dated 6 June 2017, 5.

[6] VCAT Letter to the plaintiff dated 22 June 2017.

[7] See Affidavit of the plaintiff dated 15 August 2017, 5.

[8] Letter from VCAT to Supreme Court dated 11 August 2017.

[9] See Benedetti v Moonee Valley City Council [2005] VSC 434.

[10] [1999] 3 VSCA 117.

[14] [2007] VSCA 163; (2007) 18 VR 48.

[15] Manderson v Wright [2016] VSC 677 [18].

[16] [2004] HCA 59; (2004) 220 CLR 472.

[17] Manderson v Wright [2016] VSC 677 [22].

[18] [2004] VCAT 2487.

[20] Manderson v Wright [2016] VSC 677 [24].

[22] Statement of Compliance dated 3 May 2011.

[23] See Manderson v Wright [2016] VSC 677 [29].