Victorian Civil and Administrative Tribunal|2003-06-26

Plentie Pty Ltd v Banyule SC [2003] VCAT 750 (26 June 2003)

72 - 84 Upper Heidelberg Road & 1 - 5 Keirnan Avenue, Ivanhoe

4, 5, 6, 7, 11,12, 13 March 2003 & 2 June 2003 (Part Heard)

1. The questions of law are determined are as follows:

(a) The Section 173 Agreement has not been ended but operates by virtue of clause 1.1(7) thereof so that the reference to the Design Guidelines referred to in the Agreement is now a reference to the 2002 Design Guidelines.

(b) Neither the Section 173 Agreement nor any of the covenants forming part of it is a registered restrictive covenant within the meaning of Section 61(4) of the Planning and Environment Act 1987.

2. The consideration of the other questions of law is adjourned to a date to be fixed.

Mr A Finanzio of Counsel instructed by D M Davidson, Solicitor

For the Respondents, Seacrest Pty Ltd & Bratsk Pty Ltd:

Mr S Morris QC with him Ms S Brennan of Counsel instructed by Rigby Cook, Solicitors (Mr Morris appeared only in the March hearing dates)

1. In this matter the Tribunal was originally constituted by Members Hewet and Fong. On 5 March 2003, Mr Morris raised legal issues in his submission, of which prior notice had not been given in accordance with Practice Note Planning and Environment List (No.1), clause 4.3. After discussion between the parties, the Tribunal was reconstituted to include a legal practitioner, Deputy President Horsfall, with Mr Hewet, Mrs Fong retiring from the hearing.

2. It was agreed between the parties that Mr Cicero's submissions and the statement by Mr Course could be taken as read subject to a reservation of rights to supplement what they had said before the reconstituted Tribunal.

3. The Applicant reserved its rights as to cost for the days lost as a result of the late notice of the questions of law.

4. At the reconstituted hearing, Mr Cicero's submission was taken as read and Mr Cicero did not wish to make any supplementary comments to the reconstituted Tribunal.

5. The hearing proceeded and on 13 March was adjourned to 2 June 2003 to enable completion of the Applicant's case.

6. On 2 June 2003 the Applicant indicated that discussions had been taking place and it proposes to apply for leave to substitute amended plans which involved changes including deletion of the supermarket, reduction in height of the north tower by 1.5m (half a storey), reduction in height of the south tower by 4.5m (one and a half storeys), an increase in separation between the towers, and other consequential changes including changes to the retail, carparks and loading bay arrangements.

7. Mr Finanzio for the Applicant advised that notice of the amended plans would be given pursuant to Clause 11 of Practice Note Planning and Environment List (No. 1) and that the changes would most likely lead to a withdrawal of the objections of Seacrest Pty Ltd & Bratsk Pty Ltd as objectors and Respondents.

8. Ms Brennan who now represented these parties (Mr Morris QC no longer being present following his appointment to the Supreme Court and as President of this Tribunal) confirmed this would most likely occur on a successful conclusion of negotiations and agreement on the amended plans.

9. The Tribunal enquired if any party had any concerns as to its impartiality following His Honour's appointment as President of the Tribunal, but no one expressed any concerns or objections to the constitution of the Tribunal on this account.

10. Orders were made adjourning the hearing to 15 September 2003 for 3 days before the same members, for the filing and service of the foreshadowed amended plans and any necessary supplementary witness statements or expert reports and for a directions hearing to be held on 4 August 2003 to consider the application to substitute amended plans.

11. After discussion it was agreed that it was now appropriate for the question of law to be determined in the interim before the adjourned hearing and the Tribunal indicated that Deputy President Horsfall would proceed to do so.

12. Mr Morris commenced his submissions on the questions of law that he had foreshadowed earlier. He tabled a Statement of Legal Issues and Contentions on behalf of his clients (Exhibit 04), which was delivered pursuant to a direction made by Members Hewet and Fong on 5 March 2003, and also an Outline of Legal Submissions in support.

13. Generally he submitted the Tribunal had no legal power to grant a permit having regard to the s 173 Agreement dated 14 July 2000 between the Council and ACS Property Developments Pty Ltd registered on the title to the subject land in Dealing No W925304T (the Agreement").

14. He referred to clause 3.1(2) of the Agreement which provides:

"The owner covenants and agrees that he will ensure the Development is generally in accordance with the Design Guidelines and in particular the site specific guidelines for the land as detailed on pages 24-28 (both inclusive of the Design Guidelines."

15. He further contended that the Agreement was a "registered restrictive covenant" within the meaning of s 61(4) of the Planning and Environment Act 1987 ("PE Act"), that the development proposed was in breach of clause 3.1 of the Agreement which required any development on the land must be generally in accordance with the Design Guidelines and other provisions, and as a result the Tribunal was prohibited by s 61(4) from directing the grant of a permit as it would result in a breach of a "registered restrictive covenant".

16. We now turn to the specific questions of law, which are determined by Deputy President Horsfall as a member who is a legal practitioner.

17. The first question of law raised was whether the Agreement had ended. The Applicants contended that it had, but Mr Morris argued that it has not ended and is still in force.

* The Agreement has not ended. It has not been removed from the Register in accordance with s 183 PE Act_._

* No evidence of revocation of the Agreement has been provided by the Applicant.

* There is no basis for concluding that the 1999 Guidelines have been impliedly repealed by the approval of the 2002 Guidelines. The 2002 Guidelines are not inconsistent with the continued operation, pursuant to the Agreement, of the 1999 Guidelines, and he submitted in all relevant respects they are the same.

* Alternatively, by reason of clause 1.1(7) of the Agreement, which reads:

"a reference to any Agreement or document by that Agreement or document (and where applicable, any of its provisions) as amended, innovated, supplanted, or replaced from time to time."

the reference in the Agreement to the Design Guidelines must be understood as being a reference to the 2002 Guidelines. If this interpretation is adopted, the Agreement has not ended.

19. Mr Morris foreshadowed an argument by Mr Canavan that the event referred to in clause 7.1(2) of the Agreement had occurred as the 1999 Guidelines had been replaced by the 2000 Guidelines, which are incorporated into the planning scheme.

(2) the revocation by the Responsible Authority of the Design Guidelines."

21. He referred to s 183 PE Act relating to cancellation or alteration of registration. These provisions oblige the Responsible Authority to tell the Registrar of Titles in the prescribed manner without delay of the ending of any Agreement and that the Registrar of Titles must as appropriate cancel in whole or in part or alter the recording of the agreement in the Register. He advised recent title searches do not show the cancellation of the Agreement, which remains on the title, and that there is no indication on the public record that the obligations have ended. He submitted Mr Cicero had proceeded on the basis that the Agreement was still in force and that there was no evidence that it had ended.

22. Mr Canavan relied on clause 7.1(2) of the Agreement for his submission that the adoption of the 2002 Design Guidelines by the Council had the effect of replacing the 1999 Design Guidelines with the 2002 document and that this amounted to a revocation.

23. My determination of this question is that the Agreement has not ended but is still in force. I accept Mr Morris's submissions. Whilst the wording of the Agreement is difficult I consider there has been no formal act terminating the Agreement by consent of the parties or pursuant to clause 7.1 thereof. I do not consider the Council's adoption of the 2002 guidelines is a revocation of the previous Guidelines. They stand as an independent document.

"a reference to any Agreement or document is to that Agreement or any other document (and where applicable, any of its provisions) as amended, innovated, supplemented, or replaced from time to time;"

Whilst the Design Guidelines are identified in the Agreement as the 1999 document, I consider clause 1.1(7) has the effect of substituting the 2002 Guidelines as the document to be referred to, and that clause 7.1(2) does not apply as the Guidelines have not been revoked, but amended.

Is the S 173 Agreement a Registered Restrictive Covenant?

25. The next question of law raised was whether, if the Agreement has not ended, is it, or covenants forming part of it, a registered restrictive covenant within the meaning of the s 61(4) PE Act?

26. Mr Morris contended that the Agreement is a registered restrictive covenant within the meaning of that section and that accordingly the grant of a permit was prohibited pursuant to s 61(4) PE Act which reads as follows:

"(4) If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant.

27. Mr Morris referred to the Tribunal decisions of Ur v Wellington Shire Council [2001 VCAT 2453 (23 November 2001 - No P50309/2001) and Haydon v Mansfield Shire Council (22 January 2003 - No P938/200)

28. The question considered in each of those decisions was whether the registration of a s 173 agreement on the Title to the subject land in each case which would have prevented the development proposed fell within the definition of "registered restrictive covenant" in the PE Act and accordingly the grant of a permit was prohibited pursuant to s 61(4) PE Act.

29. In Ur v Wellington the Tribunal comprising Mr Liston and Mrs Rickards said:

"14. Unlike restrictive covenants which can only be endorsed by a person who owns land benefiting from the covenant, the covenant in a Section 173 agreement can be enforced by the Responsible Authority pursuant to the statutory provision of Section 182(b) PE Act as if it were a restrictive covenant even though the Responsible Authority is not the owner of land benefiting from the covenant.

"15 The only relevant persons who can end the agreement is the owner of the lots on which the covenant is registered and the Responsible Authority. Such an agreement has been entered into, the Section 173 Agreement is therefore not a bar to the consideration of the application in relation to the subject land."

30. In Haydon and Marshall Mrs Rickards as the sole Member presiding said:

"18 In B Ur and others v Wellington Shire Council [2001] VCAT 2453 (P50309/2001) the Tribunal although not reaching a final conclusion accepted the submission that a Section 173 agreement although referred to within the PE Act as being treated as a `restrictive covenant' did not fall within the definition of a "registered restrictive covenant" in the PE Act and the referral in section 61(4) PE Act. The Tribunal also accepted that although there is a reference under the Transfer of Land Act 1958 (TLAct) to the registration of a restrictive covenant, the requirement to register a Section 173 Agreement is derived under the PE Act, Section 181(3) PE Act stating "the Registrar of Titles must make a recording of the agreement in the Register" and not under the TL Act, the reference under that Act to the registration of an instrument not including reference to a Section 173 Agreement."

31. It is preferable to set out Mr Morris' submissions on this question in full as follows:

The Objectors submit that the Tribunal's decision in Van der Heyden v Shire of Mansfield (P938/2002) is in error and should not be followed. In that case, Member Rickards found that a section 173 agreement was not a registered restrictive covenant because it was registered under the Planning and Environment Act 1987, not the Transfer of Land Act.

If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant.

Section 3 of the Planning and Environment Act 1987 defines "registered restrictive covenant" to be

A restriction within the meaning of the Subdivision Act.

Section 3 of the Subdivision Act defines "restriction" to mean:

A restrictive covenant or a restriction which can be registered, or recorded in the Register under the Transfer of Land Act 1958.

In the Objectors' submission, the Agreement is a restriction. The word "restriction", where used within the definition, is not defined; but section 174 of the Planning and Environment Act 1987 expressly contemplates that a section 173 agreement may contain restrictions. In the Objectors' submission, a covenant to ensure development is generally in accordance with design guidelines is a restriction. It is akin to a building envelope, concept plan, etc. The present agreement amounts to a restriction.

It is the intention of the Parliament that a restriction attaches to and runs with land; and operates as if it were a restrictive covenant. A section 173 agreement represents a covenant of a serious kind made by a land owner to a public agency designed to impose restrictions over the use of land. In this context, it is not surprising that a section 173 agreement may be a restriction on land.

If section 61(4) was intended only to operate in ' relation to traditional restrictive covenants, it is submitted that the legislature would not have invoked the definition in the Subdivision Act, which refers not only to restrictive covenants, but restrictions also.

Simply because section 60(2) of the Planning and Environment Act contemplates the removal of restrictions by the grant of a permit to which benefiting land owners consent does not mean that restrictions which do not benefit identifiable land owners do not fall within the meaning of "restriction". The word "any" in this sub-section is revealing.

The Objectors note that section 60(4) of the Planning & Environment Act explicitly makes provision in relation to restrictions registered under the Subdivision Act, lodged for registration or recording under the Transfer of Land Act or created before 25 June 1991. In the Objectors' submission, section 60(4) reinforces that not only traditional restrictive covenants are contemplated by the definition of "registered restrictive covenant".

The definition of "restriction" in the Subdivision Act can be interpreted in one of three ways.

The first possible interpretation is that a restriction is a restrictive covenant or restriction which can be:

s recorded in the Register under the Transfer of Land Act.

The second possible interpretation is that a restriction is a restrictive covenant or restriction which can be:

in the Register under the Transfer of Land Act.

Under both these interpretations, the words "under the Transfer of Land Act" describe the Register. [That is, describe the noun, not the verbs.]

Under the first interpretation, the words "under the Transfer of Land Act' refer to the Act pursuant to which the restriction is recorded, but do not refer to the Act pursuant to which the restriction is registered.

A third possible interpretation is that a restriction is a restrictive covenant or restriction which can be:

under the Transfer of Land Act.

Under the third interpretation, the words "under the Transfer of Land Act' would refer to the Act pursuant to which the restriction is registered or recorded.

The Objectors submit that the first (alternatively the second) interpretation is correct.

It is noteworthy that the Subdivision Act defines "Registrar" as having the same meaning as it has in the Transfer of Land Act 1958, but does not define "Register". See also the definitions of "registered cluster plan" and "registered plan of strata subdivision" in section 3 which identify other Acts under which registration occurs.

Thus it is appropriate for the Act to specify which Register is referred in the definition of "restriction".

In the Objectors' submission, the assumption of the Tribunal in Van der Heyden that the words "under the Transfer of Land Act' qualify the registration or recording was mistaken. It is noteworthy that the question of interpretation was not argued before it.

Indeed, if the first interpretation is correct, it does not matter pursuant to which Act the Agreement was registered; it is sufficient if it amounts to or includes "restrictions" and is registered [somewhere].

Prior to 1998, there were two Registers: one under the Transfer of Land Act for Torrens title land and one under the Property Law Act for general law land. In 1998, the general law register was abolished and all land was required to be brought within the Torrens title system. But in 1988, when the Subdivision Act was introduced and defined restriction as a restrictive covenant or restriction which could be registered under the Transfer of Land Act, it did not make provision for registration under the Property Law Act. In 1989 when the Subdivision Amendment Act was passed to correct oversights and deficiencies in the Subdivision Act, the words ", or recorded in the Register" were added to the definition of restriction, and registration of restrictive covenants over both general law land and Torrens title land was included. Although there were two ways of registering a restrictive covenant at that time, there was only one way of recording it: on the Register under the Transfer of Land Act. Thus, the definition of restriction provides registration generally (under the Property Law Act or the Transfer of Land Act) and recording specifically under the Register of the Transfer of Land Act.

If the third interpretation is correct, the Objectors submit that the Agreement is nonetheless a restriction registered under the Transfer of Land Act.

A responsible authority may apply to the Registrar of Titles to register an agreement relating to land other than Crown land.

The Registrar of Titles must make a recording of the agreement in the Register.

Section 27(6)(a) of the Transfer of Land Act provides:

(a) must contain the recordings that are required or authorised to be made in the Register by or under this Act or any other Act and that affect the land for which the folio is created;

Section 27A(I) of the Transfer of Land Act provides:

An instrument capable of registration under this Act is registered by -

to the extent necessary, to give effect to the instrument.

Instrument is defined in section 4 of the Transfer of Land Act as:

every document registered or capable of registration under this Act or in respect of which any recording is, by this Act or any other Act, directed, required or permitted to be made in the Register.

In relation to the Agreement, the Objectors submit:

* section 181 of the Planning and Environment Act applies to the Agreement;

* the responsible authority applied to the Registrar in accordance with subsection 181 (1);

* the Registrar was required to make a recording in the Register by reason of subsection 181(3);

* further, section 27(6) of the Transfer of Land Act also required that the Register contain the recording required to be made under the Planning and Environment Act; and

* Section 27A(I) provided that once recorded, the Agreement was registered under the Transfer of Land Act.

The requirement to record the section 173 agreement arises out of the Planning and

Environment Act; but the act of registration and recording takes places under the

Transfer of Land Act. Put another way, the requirement for recording of the Agreement

arises out of the Planning and Environment Act 1987 but the requirement to register the

Agreement is found in the Transfer of Land Act. There is nothing in the Planning and

Environment Act 1987 requiring the Registrar to register a section 173 agreement.

Equivalent restrictions are found in agreements under the Victorian Conservation Trust

Act, section 3A, and the Heritage Act, sections 91-92. Agreements under these Acts are

excluded from the operation of the planning system by section 6A(3)(b) of the Planning

and Environment Act. No similar exclusion was made in relation to section 173

The s.173 agreement is "not a restriction which can be registered or recorded in the register under the Transfer of Land Act:

* The words "under the Transfer of Land Act" qualify both the verbs register and record. This is supported by the word "can" which conveys the concept of entitlement to be registered or recorded. The words "under the Transfer of Land Act" define the source of entitlement. Van der Heyden v Mansfield (2001) VCAT Act 2453.

* The gateway to registration is s.181 of the Planning and Environment Act. It, in turn, invokes the registration machinery of the Transfer of Land Act.

The Planning and Environment Act does not evince an intention to treat s.173 agreements as restrictions within the meaning of s.61(4).

Section 61(4) provides -

If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority may refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant.

* The operation of the section is conditioned upon the breach of a restriction. It is true that some s.173 agreements contain restrictions, but the inclusion of restrictions in a s.173 agreement is not of the essence of the instrument. Section 174(2) Planning and Environment Act. The defining element of the instrument which enables it to be registered or recorded is that it is an agreement between and RA and an existing or future owner. Section 173(1) Planning and Environment Act. It may or may not impose restrictions on land is irrelevant to its entitlement to registration or to its characterisation. In contrast, an essential characteristic of a restriction within the meaning of s.61(4) is restriction on land which benefits other land s.60(2).

* Section 173 agreements and restrictions are treated in different parts of the Planning and Environment Act and in different ways

(a) Restrictions Part 4 Div 1 60 (2), (3), (4), (5), (6), (7) (N.B s.60(2)) The owner of the land benefited by the restriction -

In turn, Clause 52-02 of the Banyule Planning Scheme and s.23 Subdivision of Land Act.

S. 174(2)(a),(c) Regulation. Can have agreement that don't impose restriction.

S.178 amendment - requires approval of Minister entirely inconsistent with power of RA to amend or remove restrictions, clause 52(2).

(i) Div. 2 of Part 9 provides a code for the creation, amendment, termination and enforcement of agreement. The Minister plays a pivotal role.

(ii) It would be extraordinary if a Clause 52.02 was intended to be such a wide power that it enabled a Responsible Authority to avoid the requirement of ministerial approval and/or benefited persons approval.

* If the ambiguity in the construction of s.61(4) Hansard makes it clear that Parliament intended to deal with restrictive covenants per se.

33. My conclusion on this question is that neither the agreement nor any of the covenants contained in it are a "registered restrictive covenant" within the meaning of s 61(4) PE Act.

34. I agree with the submissions of Mr Canavan. Despite the ingenuity of Mr Morris' contentions, I consider the proper interpretation of the definition of "restriction" in s 3 of the Subdivision Act ("SD Act") rests on the word "can" as identifying the source of the entitlement to registration. The definition requires that that entitlement must arise under the Transfer of land Act 1958 ("TL Act"). However the entitlement to registration or recording of the Agreement arises under s 181(3) PE Act, not under the TL Act.

35. I adopt the reasoning of the Tribunal in Van der Heyden v Mansfield and Ur and others v Wellington Shire Council.

36. I agree that the provisions of the PE Act relating to s 173 agreements constitute a code which covers comprehensively their creation, amendment, termination and enforcement. To hold that a s 173 agreement is a "registered restrictive covenant" in terms of s 61(4) PE Act would create an anomaly that the requirement of the Minister to terminate a s 173 agreement in the absence of agreement between the responsible authority and the owner would be negated by the power of the responsible authority to issue a permit to remove or vary it.

37. A significant feature of the differences in the sets of provisions in the PE Act relating to s 173 agreements on the one hand and registered restrictive covenants on the other is who is entitled to their benefit. A s 173 agreement may be made between the responsible authority by itself or jointly with any other person and the owner of the land or a person in anticipation of that person becoming the owner of the land (s 173 PE Act) and may be terminated either by its operation (s177(1)) or by agreement between the responsible authority and all parties bound by any covenants in the agreement, or by the responsible authority with the approval of the Minister(s 177(2)). There is no provision giving other persons who are not parties to the agreement (except subsequent owners of the land by virtue of the burden of the agreement running with the land pursuant to s 182 PE Act) any rights or benefits, except s 114 which gives third parties a right of enforcement.

38. This is in contrast to s 52(1)(ca) & (cb) PE Act and its references to the requirements to give notice of applications for permits which would result in a breach of a registered restrictive covenant or for the removal or variation of such a covenant to "...the owners...and occupiers of land benefited by a registered restrictive covenant..." which reflect the right of owners of land benefiting from a registered restrictive covenants at common law.

39. It is noted that s 88 TL Act makes specific provision for the notification of restrictive covenants on the titles of land subject to the burden of a covenant which is consistent with the scheme of the provisions in the PE Act relating to registered restrictive covenants.

40. Examination in Hansard of the Second Reading Speech of the Planning and Environment (Restrictive Covenants) Bill 2000 reveals no suggestion that it was the intention of Parliament that the definition of "registered restrictive covenant" should be given the wide meaning suggested by the Objectors, but rather confirms that the whole focus of the Bill was to strengthen the provisions in the PE Act relating to the right of the owners and occupiers of land benefited by a registered restrictive covenant as commonly understood.

41. The comments in paragraphs 37 - 40 do not directly govern the interpretation of the definition but confirm that the interpretation adopted by the Tribunal is consistent with the respective schemes in the PE Act for registered restrictive covenants on the one hand and s 173 agreements on the other.

42. The next question of law is that Seacrest and Bratsk contend that clause 3.1 binds the owner of the land, and operates as a restriction on the land, so that:

* any development of the land to be constructed by the owner of the land must be generally in accordance with the Design Guidelines in accordance with the Design Guidelines which are Annexure A to the Agreement and, in particular, must be generally in accordance with the site specific guidelines for the land as detailed on pages 24 to 28 of the Design Guidelines; and

* the Public car-parking spaces, as defined in clause 1.2 of the Agreement, must be constructed, at the cost of the owner of the land, in association with the development; and

* title to the Public Carparking Spaces must be transferred to the responsible Authority on or before the commencement of the use of the development, which title must not form part of a body corporate on a plan of subdivision.

* Can the Design Guidelines annexed to the Section 173 Agreement be adapted to reflect the fact that the subject land now comprises 72-84 Upper Heidelberg Road, Ivanhoe and numbers 1, 3 and 5 Kiernan Avenue, Ivanhoe? And, if yes, how should they be adapted?

Seacrest contends that the Design Guidelines must be applied as expressed in Annexure A to the Section 173 Agreement and cannot be altered by reason of the fact that there has been a change in circumstances. Seacrest further contends that the Design Guidelines anticipate how they might be interpreted in the event that numbers 1, 3 and 5 Kiernan Avenue are developed jointly; and Seacrest contends that in this event the maximum height of a building on numbers 1, 3 and 5 Kiernan Avenue is RL 56.00.

* What is the meaning of the word requirements in the provision in relation to car parking on page 26 of the Design Guidelines annexed to the Section 173 Agreement?

Seacrest contends that this word means the number of car spaces derived by the application of the table at clause 52.06-5 of the Banyule Planning Scheme.

* What is the meaning of the expression generally in accordance with Clause 3.1(2) of the Agreement.

Seacrest contends that a development will be generally in accordance with the Design Guidelines if it is either totally in accord with the Design Guidelines or is in accord with the Design Guidelines save in minor, immaterial or minimal respects which would not preclude the conclusion that, in an overall sense, the development was in accord with the Design Guidelines. It contends that the proposed development is not in compliance with clause 3.1 of the Agreement, and not reasonably open for a Tribunal to conclude that it does so.

* By reason of the above contentions, Seacrest submits that the Tribunal has no power to grant a permit for the proposed development as the grant of such a permit would authorise development which would result in a breach of a registered restrictive covenant (as defined in the Planning and Environment Act 1987).

* Further, any person who uses or develops the subject land in contravention of, or in a manner which fails to comply with, the Section 173 Agreement is guilty of an offence: see section 126 of the Planning and Environment Act 1987. In which instance the person could be prosecuted. Further, it would be open for a person to apply for an enforcement order, pursuant to Section 114 of the Act, in relation to the contravention of the Section 173 Agreement. Hence, the development of the land in a manner which is in contravention of, or which fails to comply with, the Section 173 Agreement is unlawful. Further, having regard to the principles in Walker v Shire of Flinders [1984] VicRp 33; [1984] VR 409 the Tribunal does not have power to grant the permit sought.

44. The dot points referred to in paragraph 43 relate to the terms and conditions of the Agreement and it is axiomatic to say that the parties to the Agreement and subsequent owners of the land on whose title the Agreement is registered are bound by those provisions in the terms that are set out in the Agreement. However he determination of the second question of law is that the Agreement does not operate as a restriction in terms of the definition in the SD Act or as a registered restrictive covenant in terms of 61(4) PE Act.

45. This changes the status of the Agreement in these proceedings and we have concluded that it is now premature to consider the further questions.

46. The reason for this conclusion is that the Applicant now proposes to apply to substitute amended plans, which, if admitted by the Tribunal and agreed to by Mr Morris's clients will result in the withdrawal Seacrest and Bratsk from the proceedings.

47. Further the position of the Council as to the amended plans is not yet known, but from what has been said already, there is some likelihood that the amendments may meet Council's concerns. In that case, if Council supported the amended proposal, any conflict between the Agreement and the 2002 Guidelines could be dealt with by a further agreement between the Applicant and the Council, assuming that the amended proposal was not generally in accordance with the 2002 Guidelines, which can only be decided if and when the Tribunal approves the substitution of the amended plans.

48. Further, as the Agreement is not a registered restrictive covenant, the Tribunal should consider the 2002 Guidelines as part of the policies, strategies, objectives and decision guidelines in the Planning Scheme, which the Tribunal must assess and balance to produce an acceptable planning outcome. In this context, the 2002 Guidelines and the Agreement do not have the status of mandatory texts to be followed to the letter, and in reaching its decision there would be no obstacle to the Tribunal applying and adapting the Guidelines in the light of circumstances which have changed since they were developed, such as the incorporation of land into the subject site in addition to the land considered by the Guidelines.

49. Accordingly the further consideration of the question of law is adjourned to a date to be fixed with liberty to apply. When the amended plans have been produced and the application for substitution is dealt with, and the respective positions of the parties is known, it will be possible to determine whether any further consideration of those questions is necessary.

Environment Act 1987

Plentie Pty Ltd v Banyule SC [2003] VCAT 750

At a glance

Court

Decision date

Source

Judgment (155 paragraphs)

Plentie Pty Ltd v Banyule SC [2003] VCAT 750 (26 June 2003)

Parties

Legislation Cited (3)