Port Phillip City Council v Hickey [2001] VSC 129

Port Phillip City Council v Hickey [2001] VSC 129 - VSC 2001 case summary — Zoe

[20]

The council argued before the Tribunal that the planning system did not concern itself with issues of title and that if Ms Hickey's private property rights were threatened or imperilled then the proper course for her was to take proceedings in court. The council's representative referred to s.48 of the Planning and Environment Act 1987 which, he said, plainly contemplated that persons other than the owner of the subject land could seek a permit for its use and development and the only requirement of the section was that the owner either consented to the application or else the authority had before it notice that the owner had received notice of the application. Its representative argued that there was an analogy in the relationship of restrictive covenants to the planning scheme and referred to the history of the planning legislation and restrictive covenants with the position having been reached under the Planning and Environment Act 1987 where s.60 permitted the removal or modification of restrictive covenants. The council's representative argued, however, that to obtain a permit for a development in breach of a restrictive covenant did not in itself entail the covenant's removal or modification. The result was that, if a permit was granted which, if carried out, would involve a breach of a restrictive covenant and no permit was given to modify or remove the covenant, it remained competent for the person entitled to the benefit of the covenant to seek its enforcement in the Supreme Court. He further argued that the erection of a building partly on common property in this instance did not amount to a "dealing" with the common property or a modification of lot entitlements within the subdivision or the granting of a permit to do so. He argued that the terms of the subdivision and the entitlements of the owners and the delineation of the common property remain as they were on the plan in 1983 which had not been subject to any modification, consolidation or re-subdivision. He finally observed that there had been a defacto subdivision and apportionment of the common property as a result of the fence.

[38]

" GROUNDS OF APPEAL A1 - The Tribunal erred in having regard to the fact that the first respondent as the owner of Unit 1, 49 Robe Street, St Kilda ("Unit 1") had not provided her consent to the proposed use and development of the subject land. A2 - the Tribunal erred in finding that the views of the first respondent as owner of Unit 1 in relation to non planning considerations were relevant to its decision. A3 - The Tribunal erred in having regard to an irrelevant consideration, namely that the first respondent as the owner of Unit 1 had not provided her consent to the proposed use and development of the subject land. A4 - the Tribunal erred in regarding the absence of the consent of the first respondent as determinative of the application before it. A5 - the Tribunal erred in determining the application before it solely on the basis of the proprietary rights asserted by the first respondent. A6 - The Tribunal denied the appellant, and the fifth and sixth respondents (as applicants for the permit, and respondents to the application for review):- (a) natural justice; (b) procedural fairness - in determining the application before it without hearing the merits of the application. A7 - the Tribunal denied the appellant and the fifth and sixth respondents: - (a) natural justice; (b) procedural fairness - by finding the first respondent's argument in relation to the absence of consent to be of such significance as to be determinative of the application before it without having regard to any other considerations bearing upon the merits of the application. B - The questions of law which arise for determination are as follows:- Questions of Law B1 - Was the absence of consent of the first respondent to the proposed use and development of the subject land a relevant planning consideration? B2 - Did the Tribunal have regard to an irrelevant consideration, namely the absence of consent by the first respondent to the proposed use and development of the subject land? B3 Was the consent of the first respondent to the proposed use and development of the subject land a mandatory consideration to which the Tribunal was obliged to have regard and give effect? B4 - Was the absence of the consent of the first respondent to the proposed use and development of the subject land determinative of or fatal to the application for a permit? B5 Did the Tribunal deny the appellant and the fifth and sixth respondents:- (a) natural justice; (b) procedural fairness in determining the application before it without:- (c) hearing the merits of the case; (d) having regard to any other considerations bearing on the merits of the application?"

[40]

For the council it was submitted before me that the presence or absence of consent was an irrelevant consideration in the permit application. It submitted that s. 48 of the Planning and Environment Act (above) contemplates that permit applications can be made in relation to land by persons other than the owner. It requires only either the consent of the owner or evidence that the owner was notified of the application. There was no obligation to obtain the views of the owner about the application. Counsel submitted that if the owner does not consent, the owner has the same rights as any other objector to participate in the planning process. It was submitted that if the owner's consent was a pre-requisite then the absence of such consent would be a bar to the grant of a permit and s. 48 would have been drafted differently. Counsel also submitted that there is a clear distinction between what counsel referred to as private and public law obligations. It was put that the public has no interest in a contract between private individuals. Many members of the public, however, may have a sufficient interest in a planning permit application to entitle them to appear and participate in any relevant hearing. It was further submitted that the granting of a planning permit has no impact upon the rights of the owner or in this case co-owners. It does no more than remove planning restrictions imposed upon the development of a particular piece of land (see Pimas Group Pty Ltd v Maratime Services Board of New South Wales (1994) 82 LG ERA 205; Paino v Woollahra Municipal Council (1990) 71 LG RA 62; Eaton & Sons Pty Ltd v The Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270.) It was submitted further that to require an investigation of the consent issue in each application could result in endless inquiries. Counsel submitted that if the owner had planning objections to raise, the owner could do so otherwise and that whether the owner consented or not was not a planning matter.

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Judgment (66 paragraphs)

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Legislation Cited (9)

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