To implement the Municipal Planning Strategy and the Planning Policy Framework.

To provide for residential use in a rural environment.

To provide for agricultural land uses which do not adversely affect the amenity of surrounding land uses.

To protect and enhance the natural resources, biodiversity and landscape and heritage values of the area.

To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision.

1. Clause 35.03-4 of the RLZ contains the permit requirements for buildings and works.
2. Clause 35.03-5 of the RLZ contains the decision guidelines that are to be applied, as appropriate, in addition to the decision guidelines in clause 65.01 of the Scheme that are themselves to be considered 'as appropriate'.
3. Schedule 1 to the RLZ does not modify or contain any requirements for any of the identified matters.

To ensure that there is no net loss to biodiversity as a result of the removal, destruction or lopping of native vegetation. This is achieved by applying the following three step approach in accordance with the Guidelines for the removal, destruction or lopping of native vegetation (Department of Environment, Land, Water and Planning, 2017) (the Guidelines):

1. Avoid the removal, destruction or lopping of native vegetation.
2. Minimise impacts from the removal, destruction or lopping of native vegetation that cannot be avoided.
3. Provide an offset to compensate for the biodiversity impact if a permit is granted to remove, destroy or lop native vegetation.

To manage the removal, destruction or lopping of native vegetation to minimise land and water degradation.

1. Pursuant to clause 52.17-1, a permit is required to remove, destroy or lop native vegetation, including dead native vegetation.
2. Pursuant to clause 52.17-5, the biodiversity impacts from the removal, destruction or lopping of native vegetation must be offset in accordance with the Guidelines.
3. Exemptions from the need to obtain a permit are contained in clause 52.17-7. No party relies on exemptions in this case.

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To identify areas which require the form and conditions of future use and development to be shown on a development plan before a permit can be granted to use or develop the land.

To exempt an application from notice and review if a development plan has been prepared to the satisfaction of the responsible authority.

1. Pursuant to clause 43.04-1 of the head clause, a schedule to the DPO may specify objectives to be achieved for the area affected by the overlay. Schedule 1 to the DPO does not specify any objectives.[12]
2. Pursuant to clause 43.04-2 of the head clause:

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.

This does not apply if a schedule to this overlay specifically states that a permit may be granted before 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.
• Include any conditions or requirements specified in a schedule to this overlay.

1. Schedule 1 to the DPO does not specifically state that a permit may be granted before a development plan has been prepared.[13]
2. It is common ground that the Ruttle Lane, Inverloch Development Plan ('RLI Development Plan') applies to the Land. The RLI Development Plan is a one-page document and is as follows.

1. Pursuant to the operation of the DPO1, any permit granted for the proposal:
   1. must be generally in accordance with the RLI Development Plan; and
   2. must include any conditions or requirements specified in Schedule 1 to the DPO.
2. The parties differ in how they say the RLI Development Plan applies to the Land, which I discuss later in this decision.
3. Clause 3.0 of Schedule 1 to the DPO contains the conditions and requirements for permits, organising the conditions and requirements under the following headings:
   1. Subdivision;
   2. Buildings and works;
   3. Landscaping; and
   4. Common Property.
4. Clause 3.0 twice refers to the RLI Development Plan:
   1. under the heading 'Subdivision':

The land must be subdivided generally in accordance with the "Ruttle Lane" Development Plan prepared by the Shire of Bass and dated 17 November, 1993.

A wetlands area (shown as Reserve No. 1 on the "Ruttle Lane" Development Plan) must be developed on the land in accordance with a program to the satisfaction of the responsible authority.

1. Given the proposal seeks permission for buildings and works and vegetation removal, the conditions and requirements relating to subdivision are not applicable to the assessment of this application.
2. I discuss the 'common property' conditions later in this decision.

1. The Council refused the permit application[14] for the following reasons:
   1. The application is not generally in accordance with the Development Plan.
   2. The application is inconsistent with Clause 3.0 of Schedule 1 whereby a wetlands area (shown as Reserve No. 1 on the 'Ruttle Lane' Development Plan) must be developed on the land in accordance with a program to the satisfaction of the responsible authority.
2. As can be seen, the Council's concerns with the proposal revolve around the RLI Development Plan and 'Clause 3.0 of Schedule 1', which is a reference to clause 3.0 of Schedule 1 to the DPO.
3. Otherwise, the Council is satisfied that the proposal is consistent with the various policies applicable to, and purposes of, the required planning permissions.[15] Further, the Council notes that the West Gippsland Catchment Management Authority has issued the landowner with a works on waterways permit in relation to the installation of the driveway culverts over the registered watercourse.[16] The Council has formed the view that the proposed development could proceed with minimal impact to flows.[17]
4. The applicant submits that the proposal:
   1. is generally in accordance with the RLI Development Plan; and
   2. is consistent with clause 3.0 of Schedule 1 to the DPO, with there being no requirement in the DPO1 that a wetlands area must be developed on the Land in accordance with a program to the satisfaction of the Council as responsible authority.
5. Further, the applicant submits that the Council's role in the approval of creation of the Land (through approving the plan of subdivision) prevents the Council from now asserting that the proposal is inconsistent with the RLI Development Plan and the DPO1. To this end, the applicant asserts that the following question of law[18] is a threshold issue in this case:

Having certified a plan of subdivision which created Lot 29 on PS524032Q, being the land comprised in certificate of title Volume 10924 / Folio 790 ('the Land'), does the operation of sections 6 and 13 of the Subdivision Act 1988 prevent the Council from now arguing that the proposed development is not generally in accordance with the Ruttle Lane Development Plan because it does not nominate the Land or part thereof as a reserve?

1. The applicant also relies on the doctrine of indefeasibility of title in support of the Land not being a reserve set aside for public purposes, given there is nothing to this effect registered on the title to the Land.
2. There is some history surrounding the creation of the Land, the surrounding lots and the RLI Development Plan. The parties rely on this history to varying degrees. I address this history, as well as the DPO1, in the next section of this decision.

1. In addition to the applicant's question of law, the key issues in dispute in this proceeding are:
   1. is the proposal generally in accordance with the RLI Development Plan;
   2. should planning permission be granted under the RLZ1; and
   3. should planning permission be granted under clause 52.17?
2. Having heard the submissions of the parties and having considered the material before me, I have determined to set aside the decision of the Council with the result that a planning permit is directed to be issued subject to conditions. My reasons follow.

DETAILS ABOUT THE CREATION OF THE LAND AND THE RLI DEVELOPMENT PLAN

1. The Land was created with the registration of Plan of Subdivision PS524032Q on 8 February 2006.
2. The Land is subject to registered Restrictive Covenant AQ880386B[19] ('Restrictive Covenant'). Broadly, the Restrictive Covenant addresses the forms of development that are not allowed on the Land along with the keeping of certain animals, the planting of certain species and the use of certain weed killing substances. The Restrictive Covenant is not relevant to this proceeding.
3. The Land is not subject to any agreement made under section 173 of the PE Act.
4. As such, but for the Restrictive Covenant, the Land is an unencumbered title.
5. There were a number of steps involved in the creation of the Land, which are detailed below under headings that relate to each of the steps in the process.

1. The Land forms part of the Albert Ruttle Estate that was created by Planning Scheme Amendment L27 ('Amendment L27') to the (then) Bass Planning Scheme. The RLI Development Plan is dated 18 November 1993.[20]
2. Amendment L27 applied to the following area:

Figure 7: Map showing extent of Amendment L27 alongside RLI Development Plan

1. As can be seen, the area covered by the RLI Development Plan was proposed to be subdivided in two stages, demarcated by the heavy black 'staging line'.
2. Among other things, Amendment L27:
   1. rezoned the subject area of 60.63 hectares from Rural Zone to Rural Residential 2 Zone; and
   2. provided that subdivision of the subject area must occur generally in accordance with 'the overall development plan which forms part of this schedule', with the RLI Development Plan being included in Schedule 20 to Amendment L27.
3. The Council relied on the Explanatory Report for Amendment L27 ('Explanatory Report') in support of its submission that the proposed development of the Land is inconsistent with the RLI Development Plan.
4. The Explanatory Report provides details regarding what was proposed at that time in terms of the existing water bodies in the subject area: that they would be contained within a common property area that was to be developed and enhanced as a natural wetlands area. The total area of the 'wetlands area' was '8.7 hectares (14.3% of the total subdivided area)'. The wetlands area was to be contained within 'common property' with its maintenance controlled by a body corporate. The wetlands area was intended to be made available to 'appropriate community groups for enjoyment and study'.
5. The Explanatory Report includes the following passages:[21]

1. Schedule 20 (referenced in Amendment L27) was the control that contained the conditions and requirements that were referred to in the Explanatory Report.
2. Schedule 20 was as follows:

1. The first subdivision that occurred of the RLI Development Plan area was by Plan of Subdivision PS344899X, which was:
   1. certified by the Council Delegate on 24 April 1996;
   2. re-certified by the Council Delegate on 20 June 1996; and
   3. registered by the Land Titles Office on 20 October 1997.
2. Plan of Subdivision PS344899X is extracted below, with the first image showing the entire subdivision and the second image being an enlargement of some of the lots created.

Figure 8: Extracts from Plan of Subdivision PS344899X

1. As can be seen, PS344899X only subdivided part of Stage 1 of the RLI Development Plan, creating:
   1. Lots 1 to 5, 20 and 21 on PS344899X, which generally align with these numbered lots on the RLI Development Plan;
   2. 'Lot 28' on PS344899X, which is different to the Lot 28 shown on the RLI Development Plan;
   3. a remainder lot, being Lot 100 on PS344899X, that includes the remaining portion of Stage 1 and the entirety of Stage 2 of the RLI Development Plan; and
   4. part of the extension to Albert Ruttle Drive.
2. On 11 November 1996, the Council and the owner of Lot 28 on PS344899X entered into an agreement under section 173 of the Act ('Lot 28 s173 Agreement').[22] In the Lot 28 s173 Agreement the parties recorded that:

1. The Overall Development Plan is included at the end of the Lot 28 s173 Agreement on a page that states that '[t]his page forms part of Amendment L27 adopted by Council on July 5th 1993'. The Overall Development Plan is as follows:

1. As can be seen, the Overall Development Plan that is attached to the Lot 28 s173 Agreement is similar yet different to the RLI Development Plan in that:
   1. the labelling of the Reserve on Lot 28 does not include '(No.1)' as is included in the version of the RLI Development Plan that forms part of Amendment L27; and
   2. the layout of Stage 2 has changed and includes the two lots fronting Ruttle Lane that were previously excluded from Stage 2, where these lots are not numbered.
2. The Lot 28 s173 Agreement also attached a version of PS344899X. However, the mapping extracted with the label 'PS344899X' differs from the version of PS344899X that was re-certified by the Council Delegate on 20 June 1996 and registered by the Land Titles Office on 20 October 1997. Rather, this version of PS344899X in the Lot 28 s173 Agreement is annotated as having been certified by the Council Delegate on 24 April 1996 and appears as follows:

Figure 10: extracts from earlier version of PS344899X that is extracted in the Lot 28 s173 Agreement

1. As can be seen, the measurements for Lot 28 on PS344899X remain the same between the version of PS344899X that was registered with the Land Titles Office and the version that is extracted in the Lot 28 s173 Agreement; the differences relate to other parts of PS344899X fronting Ruttle Lane.

1. The next step involved the subdivision of Lot 100 on PS344899X. This occurred through Plan of Subdivision PS437544V,[23] which:
   1. was certified by the Council Delegate on 16 January 2001;
   2. received a statement of compliance on 4 July 2001; and
   3. was registered at the Land Titles Office on 10 July 2001.
2. The following is an extract from PS437544V:

1. As can be seen, PS437544V again only subdivided part of Stage 1 of the RLI Development Plan, creating:
   1. Lots 6 to 9 and 16 to 19 on PS437544V, which generally aligns with these numbered lots on the RLI Development Plan;
   2. a remainder lot, being Lot 103 on PS437544V, that includes the remaining portion of Stage 1;
   3. Lot 102 on PS437544V, being the entirety of Stage 2 of the RLI Development Plan; and
   4. two further extensions to Albert Ruttle Drive.

1. On 29 October 2002, the Council granted Planning Permit 02687 that allowed the subdivision of Lots 102 and 103 on PS437544V into 30 lots ('2002 Permit'). The 2002 Permit is extracted at Appendix B of this decision.
2. The applicant requested a copy of the endorsed plan under the 2002 Permit from the Council but the Council has not been able to locate this endorsed plan.

1. Lot 103 on PS437544V was subdivided into six lots by Plan of Subdivision PS502616L, which:
   1. was certified by Council Delegate on 27 December 2002;
   2. received a statement of compliance on 2 May 2003; and
   3. was registered at the Land Titles Office on 6 May 2003.
2. PS502616L is shown in the following extracts:

1. As can be seen, PS502616L subdivided part of Stage 1 of the RLI Development Plan, creating:
   1. Lots 10 to 15 on PS502616L, which generally aligns with these numbered lots on the RLI Development Plan; and
   2. a further extension to Albert Ruttle Drive.
2. Notably, PS502616L did not create a reserve at the termination of the further extension to Albert Ruttle Drive, between lots 12 and 13 on PS502616L, notwithstanding this being shown in the RLI Development Plan.

1. Following the registration of PS502616L, the Council endorsed the Road and Drainage Works plan for 'Stage 4, Inverloch'[24] under the 2002 Permit on 5 May 2004, as shown below.

Figure 13: extract from Road and Drainage Works plan endorsed under Planning Permit 02687

1. The Road and Drainage Works plan shows the six lots created by PS502616L. It also includes Lot 30 fronting Ruttle Lane, which appears to have been included in the subdivision although it was not part of the RLI Development Plan, nor PS502616L.
2. This is the earliest endorsed plan that the Council could locate for the 2002 Permit.

1. Lot 102 on PS437544V was subdivided by Plan of Subdivision PS524032Q, which:
   1. was certified by Council Delegate on 10 May 2005;
   2. received a statement of compliance on 27 January 2006; and
   3. was registered at the Land Titles Office on 8 February 2006.
2. The following extracts are from PS524032Q:

1. It is this subdivision that created the Land, being Lot 29 on PS524032Q.
2. It is notable that the shape of Lot 29 on PS524032Q is different to the shape of Lot 29 as shown in the Road and Drainage Works plan that was endorsed under the 2002 Permit. The following plans are coloured[25] to show this difference.

Figure 15: coloured extracts from the Road and Drainage Works plan and PS524032Q

1. As can be seen, Lot 29 on the Road and Drainage Works plan endorsed under the 2002 Permit is larger than Lot 29 on PS524032Q and extends south to Albert Ruttle Drive.
2. In relation to this difference, the material before the Tribunal includes the following page of what is marked as a superseded version of PS524032Q,[26] which depicts Lot 29 as being the same shape as shown in the Road and Drainage Works plan.

1. Whilst no explanation was provided for the discrepancy, this difference might be explained by the content of the following letter, which was relied on by the Council in relation to another issue.

Figure 17: extract of letter from Watsons Pty Ltd to the Council

1. As can be seen, this letter suggests that there was an attempt to create a different version of Lot 29 that also included the land in Lot 28 on PS344899X but that this was refused because the ' approved Planning Permit' (presumably the 2002 Permit) does not allow consolidation of lots.
2. In any event, what resulted in this part of the estate were two individual lots: Lot 28 on PS344899X and Lot 29 on PS524032Q.

1. In summary:
   1. the Albert Ruttle Estate was created by Amendment L27 to the (then) Bass Planning Scheme, where Amendment L27 created the RLI Development Plan;
   2. the first subdivision of the area covered by the RLI Development Plan was PS344899X;
   3. the Lot 28 s173 Agreement was entered into, addressing the development and maintenance of a wetlands area on Lot 28 on PS344899X;
   4. the second subdivision of the area covered by the RLI Development Plan was PS437544V;
   5. the 2002 Permit was issued, allowing the subdivision of Lots 102 and 103 on PS437544V;
   6. the third subdivision of the area covered by the RLI Development Plan was PS502616L;
   7. the Road and Drainage Works plan for the 2002 Permit was endorsed; and
   8. the fourth subdivision of the area covered by the RLI Development Plan was PS524032Q, which created the Land.

1. The parties' submissions covered:
   1. what each party says is the extent of Reserve (No.1) on the RLI Development Plan;
   2. the principles of interpretation applicable to interpretation of the RLI Development Plan;
   3. what they say is meant by the RLI Development Plan;
   4. the requirements of the DPO1;
   5. the requirements of the 2002 Permit; and
   6. the effect of the registration of the relevant plan of subdivision that created the Land.
2. It is common ground between the parties that the relative lack of detail in the RLI Development Plan supports a more flexible approach being given to what is 'generally in accordance with' the RLI Development Plan. The parties also agree in principle that:
   1. whether the proposal is 'generally in accordance with' the RLI Development Plan is a question of fact;
   2. 'general accordance' does not require the proposal to be identical to the RLI Development Plan; and
   3. the RLI Development Plan should be read as a whole.

1. The Council submits that:
   1. Reserve (No.1) of the RLI Development Plan is the entirety of the area north and south of the stage dividing line as well as to the west and the thinner portion running north-south and to Ruttle Lane; and
   2. the Land is within the area shown as Reserve (No.1) in the RLI Development Plan.
2. This area is shown in the following diagram (which has been coloured by the Tribunal to reflect the Council's submissions on this point).

Figure 18: RLI Development Plan coloured to show the Council's submission regarding the extent of Reserve (No. 1)

1. The Council:
   1. acknowledges that there is nothing on the title to the Land that sets the Land aside as a reserve. However, the Council submits that this is no different to any number of other properties across Victoria that are subject to planning controls and have physical circumstances that limit the ways in which those properties can be developed and used;
   2. submits that the wetlands were part of the original subdivider's obligations to deliver public open space. The Council relies on the Explanatory Report and the intention expressed in that document that there be 8.7 ha (or 14.3%) of the area the subject of Amendment L27 that would be wetlands and common property, controlled by a body corporate. This is notwithstanding that neither the creation of common property nor the body corporate has eventuated. The Council refers to the Minutes of Special Meeting of Council dated 7 June 2000 that dealt with a request to reduce the public open space contribution for PS344899X. The Council submits that if only Lot 28 on PS344899X is available as a wetlands area, this is less than the 14.3% referred to in Amendment L27;
   3. draws a distinction between the creation of common property and the creation of a reserve, noting that it was never the intention of Amendment L27 to create a reserve that would vest in, for instance, the Council. Rather, the intention was always that common property would be created that would be managed by a body corporate, with the Reserve (No.1) area being available for persons to access. The Council explains that this provision of open space was in lieu of the then-owner and developer making a public open space contribution; and
   4. acknowledges that Lot 28 on PS344899X is subject to a s173 agreement whereas the Land is not. The Council refers to submissions summarised in, and comments made by the Tribunal in, The Reserve Inverloch Pty Ltd v Bass Coast SC[27] ('The Reserve case'). That case dealt with a declaration sought as to whether a proposed use and development of a dwelling on Lot 28 on PS344899X would contravene the obligations of the Lot 28 s173 Agreement that burdened the subject land in that case.

1. The Council submits that given the sparsity of information in the RLI Development Plan, it is appropriate to have regard to extrinsic materials to interpret the RLI Development Plan. To this end, the Council relies on:
   1. the plan prepared by Watsons Pty Ltd showing the proposed subdivision and wetlands area dated 1992 ('Watsons Plan') that the Council says was prepared concurrently with the RLI Development Plan; and
   2. the 2002 Permit that resulted from the RLI Development Plan.[28]
2. The Council acknowledges that the Watsons Plan is not endorsed but states that it understands the Watsons Plan was provided to the Panel for Amendment L27 on behalf of the then-owners of the Albert Ruttle Estate.
3. The Watsons Plan is as follows:

1. In relation to the RLI Development Plan (which the Council refers to as 'Figure 1' in the extract below) and the Watsons Plan (which the Council refers to as 'Figure 2' in the extract below), the Council submits:[29]

1. The Council relies on the conditions of the 2002 Permit, submitting that these require the development of the wetlands area as per condition 15 of the 2002 Permit:

1. The Council also relies on conditions 1, 2, 16 and 37.1 of the 2002 Permit in support of the creation of the wetlands on the Land.
2. The Council submits that the conditions of the 2002 Permit remain in force and to this end, the Council relies on principles espoused in Benedetti v Moonee Valley City Council[30] ('Benedetti'), where the Supreme Court of Victoria held that in a development permit a condition can continue to have effect after approved works have been undertaken, for as long as the owner takes the benefit of that permit.[31] The Council acknowledges that the facts of that case and the present case are different. The Council submits that it was not able to locate any case that is on point with the facts in the present case.
3. The Council submits that the applicant is continuing to take the benefit of the 2002 Permit and so should be bound by the conditions of the 2002 Permit that require provision of the wetlands on the Land, noting that the Permit did not authorise the development of dwellings on Reserve (No. 1). The Council concludes:[32]

1. The Council also referred to Lloyd v Robinson[33] and Bayside CC v Sullivan & Ors[34] in support of its reliance on the conditions of the 2002 Permit.

1. The Council relies on the content of clause 3.0 of Schedule 1 to the DPO.
2. The Council submits:
   1. clause 3.0 of Schedule 1 to the DPO is not discretionary and the language in the DPO1 is clear and requires the wetlands as shown as Reserve No. 1 to be developed on the Land; and
   2. the substance of condition 15 of the 2002 Permit is contained in clause 3.0 of Schedule 1 to the DPO.

Is the proposal generally in accordance with the RLI Development Plan?

1. The Council submits that the proposal is not generally in accordance with the RLI Development Plan because the inclusion of a dwelling on the Land is not generally in accordance with the Land being 'reserved, in its entirety for a wetlands'.[35]

1. The Council and the applicant differ on what they say is the extent of Reserve (No. 1) of the RLI Development Plan, with:
   1. the applicant submitting that the Reserve (No. 1) is the area that is Lot 28 on PS344899X; and
   2. the Council submitting that the Reserve (No. 1) is the area that is highlighted yellow in Figure 18, above, which includes Lot 28 on PS344899X but also extends beyond that area.
2. In contrast to the Council's position, in discussing the first subdivision that occurred through PS344899X the applicant contends that:[36]

1. The applicant submits that the figures in the Explanatory Report were based on the area of land that was subject to Amendment L27, being 60.63 hectares, which was different to what was ultimately included in the subdivision. Given this, the applicant then provided alternative calculations for the area that was required to be set aside as a reserve. Ultimately, the applicant submits that what this indicates is that since Amendment L27 there have been changes to what was the original intention or vision for the area the subject of Amendment L27. As such, the applicant submits that I should not draw too much from what was intended in 1995; rather, what I need to look at are the documents in the Scheme.

Effect of registration of the plan of subdivision

1. This then leads to the applicant's question of law regarding the effect of sections 6 and 13 of the Subdivision Act 1998 (Vic) ('Subdivision Act').
2. The applicant contends that the Council's certification of the subdivision in PS524032Q means that the Council cannot now assert that the Land cannot be developed as proposed in this permit application. This is because the certification of PS524032Q meant that, as stated in section 6(1)(a) of the Subdivision Act:

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.[38]

1. This is in the context where the Council is able to require alterations to a plan to make a plan suitable for certification.[39]
2. Further, where a plan has been certified, this is evidence of compliance for the purposes of section 13 of the Subdivision Act:

Where the Council certifies a plan, the certification is conclusive evidence that the provisions of this Act relating to certification including any preliminary requirements, have been complied with, unless, before the plan is registered, an order is made under section 39(3) and served on the Registrar.[40]

1. The applicant:
   1. asserts that PS524032Q does not contain any common property at all, or any boundaries of proposed wetlands or reserves;
   2. submits that by certifying each of the plans of subdivision for the area covered by the RLI Development Plan (i.e. the Albert Ruttle Estate), the Council has each time provided conclusive evidence that the provisions of the Subdivision Act have been met, these including the requirement for a plan of subdivision to comply with those requirements of the Scheme and any planning permit 'that relate to the boundaries of roads, lots, common property and reserves and the form and content of the plan';
   3. asserts that in certifying PS502616L and PS524032Q, which were approved after the 2002 Permit, the Council has provided conclusive proof that the requirements of the RLI Development Plan have been complied with.[41] As such, it follows that the proposed development is generally in accordance with the RLI Development Plan.[42]
   4. submits that it is important that PS524032Q does not contain any common property because the creation of common property creates proprietary rights over land; that is, rights in rem, rather than personal rights (rights 'in personam'). Where common property is created, this provides beneficial owners of the common property with rights in rem to that common property: a right to access and use that common property. In the absence of such a right being created, there is no ability to access that area, with access to that area arguably constituting trespass;
   5. acknowledges that the term 'reserve' that is used in the question of law has a particular meaning in the Subdivision Act but says that the Reserve (No.1) area that the Council asserts extends onto the Land should have been shown as 'common property' on PS524032Q;
   6. submits that the principle of indefeasibility of title means that in the absence of any evidence on the face of the certificate of title for the Land that the Land is or contains a reserve, that the Land is not a reserve.[43]

1. The applicant asserts that no weight should be given to the Watsons Plan because, among other reasons, it has no status in the Scheme and there is no 'hook' to take that document into account. In any event, the applicant submits that the Watsons Plan identifies a 'dam' on the Land rather than this area being a wetlands or a reserve.

What has been 'generally in accordance with' the RLI Development Plan?

1. The applicant:
   1. points to various inconsistencies between the RLI Development Plan and what has been approved over time[44] but does not assert that any of those inconsistencies render those particular subdivisions as being not generally in accordance with the RLI Development Plan; and
   2. directly compares the subdivision approved in PS524032Q with the RLI Development Plan and what has been developed on the ground. To this end, the applicant has superimposed what it understands the Council contends is the additional extent of the Reserve (No. 1) (shaded in blue in each plan) in the following plans.

Figure 20: Diagrams prepared by the applicant showing Reserve (No. 1) as against PS524032Q and what has been developed

1. As can be seen, the Reserve (No. 1) area intrudes upon several (private) lots, none of which are identified on PS524032Q as a reserve or common property. For example, for Lot 27 on PS524032Q, the dwelling is constructed partially within what the Council considers to be Reserve (No.1) on the RLI Development Plan. In this respect, the applicant submits:[45]

1. The applicant distinguishes Benedetti on its facts, given that it did not deal with a subdivision permit. The applicant submitted that the other cases relied upon by the Council also should not be followed in this case, for various reasons.
2. In contrast, the applicant relies on Manderson v Wright[46] ('Manderson'), Khan v VCAT[47] ('Khan'), Zaric & Ors v City of Greater Dandenong[48] ('Zaric') and Hillpalm Pty Ltd v Heaven's Door Pty Ltd[49] ('Hillpalm').
3. The applicant submits that the general rule to distil from these decisions is that a permit for subdivision will be spent once the plan of subdivision is registered and new titles are issued. The conditions on the plan of subdivision that are conditions precedent to the certification of the plan or the issue of a statement of compliance are not intended to survive the registration of the plan and the creation of titles. For instance, a condition that pertains to the boundaries of a lot or an area. The applicant accepts that depending on the particular construction of the condition in question, a condition might survive the creation of titles.[50]
4. At the request of the Tribunal, the applicant then reviewed the conditions of the 2002 Permit to identify which conditions, in the applicant's submission, survived registration of PS524032Q and which did not.
5. Amongst the conditions that the applicant submits do not survive registration of PS524032Q are conditions 2 to 6, 17 to 22, and 27 to 30. Whilst other conditions, such as conditions 8, 11, 12, 14, 15 and 16 might impose ongoing obligations and due to their drafting, might survive registration of PS524032Q, the applicant submits that some of these conditions are not properly included in the 2002 Permit or cannot be enforced. For instance:
   1. conditions that relate to development or use, which is not permitted by the 2002 Permit, given it is a permit authorising subdivision; and
   2. condition 16 that requires all common property to be landscaped and maintained to the satisfaction of the responsible authority, which is not applicable to PS524032Q as there is no common property shown on or created by PS524032Q. As such, there is nothing to attach this condition to.
6. The applicant identifies that the 2002 Permit does not contain a primary permission creating a reserve. However, condition 2 of the 2002 Permit does contemplate that before certification of the plan of subdivision, certain information needs to be provided to the Council, as follows:

1. The applicant:
   1. submits that having regard to the propositions emerging from the various cases, the proper construction of the 2002 Permit is that the provision of the wetlands was a condition precedent to the certification process that took place for PS524032Q. However, when the titles issued out of PS524032Q there was no reference to a reserve or a wetlands, nor was there any encumbrance on the titles that issued that related to a reserve or wetlands;
   2. accepts that it is possible that the Lot 28 s173 Agreement was only intended to be for the part of the Reserve (No.1) that was in Stage 1 of the RLI Development Plan. However, this does not explain why when there were subsequent opportunities to create the reserve/wetlands on the Land, this was not done;
   3. queries why there is no explanation for there never being a wetlands development program, notwithstanding what is required by condition 15 of the 2002 Permit; and
   4. submits that even if the Council is successful in this proceeding and the proposed development does not go ahead, this will not result in the creation of a wetlands/reserve on the Land because there is nothing compelling the applicant to do so. Whilst people might have been provided with access to the Land to date, there is no requirement for the applicant to continue to do so; the applicant could fence the Land and exclude access to the Land. Further, there is no requirement for the applicant to maintain the Land in any particular way, given there is no wetlands development program applicable to the Land.

1. The applicant submits that as a consequence of there being no common property on the Land, the 'Common property' requirements in clause 3.0 of Schedule 1 to the DPO do not apply. To this end, the applicant submits:[51]

Is the proposal generally in accordance with the RLI Development Plan?

1. The applicant submits that the proposal is generally in accordance with the RLI Development Plan when regard is given to the fact that other land designated as part of Reserve No 1, such as Lot 27, has previously obtained approval for the construction of a dwelling.[52]
2. Further, the Council's certification of PS502616L and PS524032Q has provided conclusive proof that the requirements of the RLI Development Plan have been met and, therefore, the proposed development is generally in accordance with the RLI Development Plan.[53]

1. In response to the above matters, the Council submits:
   1. in terms of developments on other lots, those circumstances represent minor adjustments of the RLI Development Plan but those developments were still generally in accordance with the RLI Development Plan;
   2. the Reserve (No.1) area, identified in the Road and Drainage Works plan endorsed under the 2002 Permit as being the 'Existing wetlands' and the 'Proposed Wetlands extension', is both a 'reserve' and 'common property' for the purposes of the terms used in section 6 of the Subdivision Act;
   3. the applicant's question of law is framed very narrowly and the Council does not dispute the boundaries of the lots in PS524032Q but rather the proposed use of the Land as compared to what is shown in the RLI Development Plan;
   4. the applicant's assertion that the Lot 28 s173 Agreement did not contemplate the Land forming any part of Reserve (No.1) is incorrect. Rather, the Council submits that the staging line on the version of the RLI Development Plan that was annexed to the s173 agreement clearly shows other areas, including the Land, as being part of Reserve (No.1);
   5. the cases cited by the applicant contemplate that some conditions may survive the registration of a plan of subdivision, and the Council asserts that condition 15 is one such condition. In relation to the conditions the applicant asserts are not properly in the 2002 Permit, the Council submits that these conditions have their genesis in Schedule 1 to the DPO;
   6. having regard to the RLI Development Plan, there was no question that Lot 28 on PS344899X was intended to be a reserve. Following the recording of the Lot 28 s173 Agreement, that lot was developed as a reserve. Lot 28 on PS344899X and the Land are each a 'lot' and not 'common property', and so the same approach should apply for the Land; and
   7. whilst acknowledging the principle of indefeasibility of title, this does not lead to 'open slather' to do what you want on your property; you still need to comply with the Scheme, such as what is in the RLI Development Plan and the DPO1.

IS THE PROPOSAL GENERALLY IN ACCORDANCE WITH THE RLI DEVELOPMENT PLAN?**

1. In making my decision, before turning my mind to whether the proposal is an acceptable planning outcome under the planning controls that are triggered by the proposal, I must be satisfied that the proposal is generally in accordance with the RLI Development Plan for the purposes of the DPO1.
2. The applicant has also posed the question of law, extracted earlier.
3. In making my decision in relation to the DPO1, I have turned my mind to the following questions:
   1. What permissions are required to be generally in accordance with the RLI Development Plan?
   2. What is shown by, and required by, the RLI Development Plan?
   3. What is the effect of the registration of PS524032Q?
   4. What is the effect, if anything, of the 2002 Permit on the proposal?
   5. Is the proposal generally in accordance with the RLI Development Plan?
4. In answering these questions, I necessarily considered, and answered, the question of law.
5. In summary, my answers to these questions are:
   1. What permissions are required to be generally in accordance with the RLI Development Plan?

Both the permission required under the RLZ1 for construction of buildings within 100 metres of the registered waterway and the permission required under clause 52.17 for removal, destruction or lopping of native vegetation.

1. What is shown by, and required by, the RLI Development Plan?

This is detailed in that section and I do not repeat that detail here, save to say that I find that the majority of the Land is located in the Reserve (No.1) shown on the RLI Development Plan.

1. What is the effect of the registration of PS524032Q?

The effect of section 13 of the Subdivision Act is that the certification of both PS524032Q and PS502616L by the Council may be relied upon by the applicant as conclusive evidence that the provisions of the Subdivision Act have been met in relation to PS524032Q and PS502616L.

Given that no common property was created and no open space reserve was created in the location of the Land, I find that the Council's actions in certifying PS524032Q, which created the Land, is evidence that the Council did not require the creation of common property or an open space reserve in the location of the Land in order to meet the requirements of the 2002 Permit, for the purposes of certification of that plan of subdivision.

1. What is the effect, if anything, of the 2002 Permit on the proposal?

The Council cannot now rely on the conditions of the 2002 Permit to impose an encumbrance or impediment on the Land in the form of a requirement to develop a wetlands on the Land, because this was not imposed by PS524032Q through which the title for the Land issued.

Notwithstanding what might have been the intention of the Council at one time in relation to the creation of common property or a reserve in this subdivisional area, given what has arisen as a consequence of the registration of the various plans of subdivision, including PS524032Q, such intentions are unrealised.

1. Is the proposal generally in accordance with the RLI Development Plan?

1. In answer to the applicant's question of law, my answer is 'yes'.

What permissions are required to be generally in accordance with the RLI Development Plan?

1. The applicant has lodged a single permit application for the proposal, through which the applicant has applied for two planning permissions:
   1. permission under the RLZ1 for construction of buildings within 100 metres of the registered waterway; and
   2. permission under clause 52.17 of the Scheme for removal of native vegetation.
2. Are both permissions required to meet the requirements of clause 43.04-2 of the Scheme - that is, to be generally in accordance with the RLI Development Plan and comply with the DPO1?
3. It is common ground that the permission under the RLZ1 is required to meet the requirements of clause 43.04-2 of the Scheme.
4. However, in response to a question from the Tribunal in relation to the permission required under clause 52.17 of the Scheme, the parties hold differing views as to whether that permission is required to meet the requirements of clause 43.04-2 of the Scheme.
5. The applicant submits that the permission under clause 52.17 of the Scheme does not need to meet the requirements of clause 43.04-2 of the Scheme, given the content of the condition and requirements for permits contained in clause 3.0 of Schedule 1 to the DPO1 do not relate to removal of native vegetation.
6. The Council submits that there is no distinction made in the wording of clause 43.04-2 of the Scheme, so the DPO1 applies to the permission under clause 52.17 but as to how the DPO1 affects the permission sought, this will depend on the content of the DPO1.
7. I accept that where clause 43.04-2 states that 'a permit granted must' meet certain requirements it does not specify any type of permit. However, I find that this sentence should be read holistically in the context of the entirety of clause 43.04-2. When read that way, I find that the permissions to which clause 43.04-2 apply are permissions to 'use or subdivide land, construct a building or construct or carry out works'.
8. 'Works' is defined in the PE Act as follows:[54]

works includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil.

[Tribunal emphasis]

1. Hence, based on the meaning of the term 'works' in the PE Act, this includes the removal of native vegetation. As such, clause 43.04-2 would also include a permit for the removal of native vegetation.
2. Pursuant to clause 62.02-3 'Vegetation removal' of the Scheme:

Any requirement in this scheme relating to the construction or carrying out of works does not apply to the removal, destruction or lopping of trees and the removal of vegetation.

This does not apply if a permit is specifically required to remove, destroy or lop trees or to remove vegetation.

[Tribunal emphasis]

1. However, clause 62.02-3 is part of clause 62.02 'Buildings and works' of the Scheme that contains the following overarching text:

Clauses 62.02-1 and 62.02-2 set out exemptions from permit requirements in this scheme relating to the construction of a building or the construction or carrying out of works. These exemptions do not apply to the removal, destruction or lopping of trees and the removal of vegetation. Exemptions for vegetation removal are set out in Clause 62.02-3.

1. When clause 62.02-3 is read in light of clause 62.02 of the Scheme, I find that clause 62.02-3 applies in the context of exempting certain things from requiring a planning permit. That is, clause 62.02-3 is another instance where a permit will not be required because a reference to 'works' will not extend to a reference to the removal, destruction or lopping of vegetation, unless a permit is specifically required to remove, destroy or lop trees or to remove vegetation.
2. Here, what I am considering is not whether a permit is required for the removal, destruction or lopping of native vegetation - it is, under clause 52.17. Rather, what I am considering is whether the reference to 'works' in clause 43.04-2 of the DPO requires a permit under clause 52.17 of the Scheme to be generally in accordance with the RLI Development Plan. In the circumstances of clause 43.04-2 of the DPO, I find that the permit exemption contained in clause 62.02-3 of the Scheme is not applicable. As such, I revert to the meaning of 'works' in the PE Act, which includes the removal, destruction or lopping of trees and the removal of vegetation.
3. Accordingly, I find that the requirements in clause 43.04-2 do also apply to the permission required under clause 52.17 of the Scheme. That is, in assessing the permission sought under clause 52.17 of the Scheme for removal of native vegetation from the Land, that permission does need to be generally in accordance with the RLI Development Plan or include the conditions and requirements of Schedule 1 to the DPO.
4. As such, both the permission sought under the RLZ1 and the permission sought under clause 52.17 must meet the requirements of clause 43.04-2 of the Scheme.

What is shown by, and required by, the RLI Development Plan?

1. The RLI Development Plan comprises a diagrammatical plan on one page with few details. What I can discern from the RLI Development Plan is:
   1. there are 30 lots to be created, each numbered and of varying sizes. No lot areas are identified;
   2. there are two stages, Stage 1 and Stage 2, which I infer are demarcated by the thick black line separating the two identified stages;
   3. 28 of the lots front a new internal road that is to be constructed through Stage 1 and Stage 2;
   4. two of the lots front Ruttle Lane to the north;
   5. there is a 'Possible Future Road Link' identified that links the internal road in Stage 2 to land to the west that is outside of the RLI Development Plan area. Conceivably, this possible future road link might also have been intended to link to Ruttle Lane to the north via the thin portion of land running north-south that might have been intended as a road but has not been developed as such;
   6. two reserves are to be created, labelled 'Reserve (No.1)' and 'Res.';
   7. 'Res.' is located in Stage 1;
   8. 'Reserve (No.1)' is labelled as being in Stage 1. There are unmarked/blank/unnumbered areas adjoining this area to the north and west that are located in Stage 2. Whilst at first blush it appears that it is only the area that is labelled as 'Reserve (No.1)' in Stage 1 that constitutes 'Reserve (No.1)', given this interpretation would lead to there being unmarked/blank/unnumbered areas, this seems to be incorrect. The alternative and preferable interpretation is that all of the unmarked/blank/unnumbered areas are part of 'Reserve (No.1)' and it is just that those parts of 'Reserve (No.1)' are in Stage 2.
2. Relying on section 35 of the Interpretation of Legislation Act 1984 (Vic), I find that I can refer to the material that accompanied the creation of Amendment L27 in order to clarify this confusion. The Explanatory Report, extracted earlier, refers to the creation of a wetlands area 'as shown on the Development Plan'. However, I observe, as was also observed by the Tribunal in The Reserve case,[55] there is no 'wetlands area' shown on the RLI Development Plan.
3. In saying this, the Conditions of Development (Common Property) contained in Amendment L27 require the development of '[A] wetlands (shown as Reserve No. 1 on the overall development plan)', which links the wetlands to the 'Reserve (No.1)' area on the RLI Development Plan.
4. The location of Reserve (No. 1) in a similar area as the wetlands area is also supported by content in the Explanatory Report that refers to the 'small disused blue stone quarry' situated near the southeast corner of the property and 'a large farm dam' located along the eastern side boundary, with 'these water body areas' to be contained in a common property area and 'developed and enhanced as a natural wetlands area'.
5. I am also assisted by the reference in the Explanatory Report to this being a maximum 30 lot subdivision, which aligns with there being 30 numbered lots and these unmarked/blank/unnumbered areas then being part of Reserve (No.1) rather than being additional lots.
6. Accordingly, whilst the RLI Development Plan could be clearer, I find that the 'Reserve (No.1)' area on the RLI Development Plan extends beyond Lot 28 on PS344899X and into the Land. I find that the 'Reserve (No.1)' area on the RLI Development Plan also extends beyond these two lots and into part of what became the following lots on PS524032Q: Lot 22, Lot 23, Lot 24, Lot 27 and Lot 28.
7. As such, I find that Reserve (No.1) comprises both the area labelled 'Reserve (No.1)' that is contained in Stage 1 as well as the unmarked/blank/unnumbered areas adjoining this area to the north and west that are located in Stage 2.
8. Having regard to the applicant's plan that superimposes the Reserve (No. 1) area over the lots including the Land (as shown in Figure 20, above), and assuming the accuracy of this plan, I am conscious that there is not a complete overlap between the boundaries of the Land and the Reserve (No.1) area. This being the case, I find that the majority of the Land is located in the Reserve (No.1) shown on the RLI Development Plan.

What is the effect of the registration of PS524032Q?

1. The question of law refers to sections 6 and 13 of the Subdivision Act.
2. The Subdivision Act is the legislation that governs the subdivision of land in Victoria. This may include, where appropriate:
   1. the creation of reserves to vest in specific persons, for various purposes;
   2. the creation, variation or removal of easements or restrictions; and
   3. the creation of common property and the associated constitution and operation of an owners corporation to manage the common property.
3. If land is to be subdivided, it must occur in accordance with the process contained in the Subdivision Act. This process includes:
   1. the preparation of a plan in accordance with the requirements of the Subdivision Act and associated regulations;
   2. obtaining certification of the plan of subdivision from the council;
   3. obtaining a statement of compliance for the plan of subdivision from the council; and
   4. lodging the certified plan of subdivision together with any relevant application form, the statement of compliance and the prescribed information at the Office of Titles for registration, and the issue of resultant certificates of title.
4. Part 2 of the Subdivision Act deals with certification of plans. A council must certify a plan of subdivision if it meets the matters contained in section 6 of the Subdivision Act.
5. Section 6 of the Subdivision Act provides as follows:

6 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; and

(c) every referral authority has given consent; and

(d) all alterations required by referral authorities have been made; and

* * * * *

(f) alterations required by the Council have been made; and

* * * * *

(h) where the only access to a lot is over Crown land, either a road has been reserved or proclaimed or the Minister administering the Land Act 1958 has consented in writing to the use of the land for access; and

(i) where the plan does anything requiring the unanimous resolution of the members of the owners corporation under Division 3 of Part 5 or an order of the Victorian Civil and Administrative Tribunal under section 34D, the plan is accompanied by a copy of the unanimous resolution or the order of the Tribunal; and

(j) where a plan removes or varies a restriction -

(i) the removal or variation is in accordance with the planning scheme or a permit; or

(ii) the Registrar has declared that the restriction has been released modified or varied; and

(k) where a plan removes or varies the whole or part of an easement -

(i) the removal or variation is in accordance with the planning scheme or a permit; or

(ii) the Registrar has declared that the easement has been abandoned or extinguished; or

(iii) the easement was set aside for the purpose of a Council, public authority or other person which has requested or consented to the removal or variation; or

(iv) all parties interested in the easement or the part of it have agreed to the removal or variation; or

(v) the Victorian Civil and Administrative Tribunal has given leave under section 36 to remove the easement and, if leave is given subject to conditions relating to the plan, those conditions have been met.

(2) If the conditions in subsection (1) are not met, the Council must refuse to certify the plan and give its reasons in writing to the applicant within the prescribed time.

(3) The Council may rely on a verified copy of a unanimous resolution or Tribunal order accompanying a plan and referred to in section 6(1)(i) as conclusive proof that a unanimous resolution or order was made in those terms.

[Tribunal emphasis]

1. Section 7 of the Subdivision Act provides that a certification lasts for five years.
2. Section 8 of the Subdivision Act deals with when a council must refer a plan to a referral authority. Section 9 of the Subdivision Act deals with what a referral authority must do.
3. Section 10 of the Subdivision Act empowers a council to require alterations to be made to a plan of subdivision.
4. Section 11 of the Subdivision Act enables a council to consent to the amendment of a certified plan of subdivision.
5. Section 11A of the Subdivision Act enables a council to ask for further information about a plan of subdivision.
6. Section 11B of the Subdivision Act enables a council to amend a plan sealed by a council.
7. Section 12 of the Subdivision Act provides that a plan of subdivision must show easements and other rights.
8. Section 13 of the Subdivision Act addresses the consequences of a council's certification of a plan of subdivision. It provides:

Where the Council certifies a plan, the certification is conclusive evidence that the provisions of this Act relating to certification including any preliminary requirements, have been complied with, unless, before the plan is registered, an order is made under section 39(3) and served on the Registrar.

[Tribunal emphasis]

1. Pursuant to section 39(3) of the Subdivision Act, the County Court may order that the registration of a certified plan be stopped in certain circumstances.[56]
2. Part 3 of the Subdivision Act deals with the statutory requirements for plans of subdivision. This includes the requirement for a council to issue a statement of compliance as soon as possible after an applicant has provided the prescribed information and the council is satisfied that all the requirements under Part 3 and under the PE Act that relate to public works have been met or there is an agreement in place to secure compliance with those requirements.[57]
3. Part 4 of the Subdivision Act deals with the registration of certified plans.
4. Pursuant to section 22, the Registrar may register a plan of subdivision if certain matters have occurred, including:
   1. the plan has been certified and the certification remains valid; and
   2. the applicant provides a statement of compliance with the plan.
5. Pursuant to section 24 'What is the effect of registration?':

(1) The registration of a plan takes effect when the Registrar records that the plan has been registered.

(2) Upon registration -

(a) land set aside as a reserve vests in the body named in the plan freed and discharged from any mortgage, charge, notice or memorandum of charge, restriction, lease or sub-lease; and

(ab) land set aside as a reserve for public purposes in accordance with an approved infrastructure contributions plan vests in the collecting agency named in that plan freed and discharged from any mortgage, charge, notice or memorandum of charge, restriction, lease or sub-lease; and

(b) land set aside as a road vests in the Council or any other person or body identified for that purpose in the plan freed and discharged from any mortgage, charge, notice or memorandum of charge, restriction, lease or sub-lease; and

...

(c) any road vested in the Council becomes a public highway; and

(d) any easement, restriction or other right is created, varied or removed as specified in the plan; and

...

(3) The Registrar must create a folio of the Register under the Transfer of Land Act 1958 for -

(a) each lot; and

(b) each reserve.

[Tribunal emphasis]

1. Part 5 of the Subdivision Act addresses subdivisions with owners corporations. Division 1 deals with the creation of an owners corporation. Notably, if there is common property on a plan of subdivision, an owners corporation must be created.[58] Division 2[59] deals with the creation of common property: its vesting, the creation of a folio for the common property and dealings in common property.
2. 'Common property' is not defined in the Subdivision Act but is defined in the Owners Corporation Act 2006 (Vic), being legislation that has as one of its main purposes the amendment of the Subdivision Act in relation to the creation of owners corporations.[60] In that legislation, 'common property' is defined as follows:

common property means land shown as common property on a plan of subdivision or a plan of strata or cluster subdivision.

1. Having regard to the provisions of the Subdivision Act, certificates of title will only be created from a plan of subdivision in circumstances where the plan of subdivision has received the various approvals required under the Subdivision Act.
2. Of these approvals, the certification step provides that:
   1. a council must issue a certification if the conditions in section 6(1) of the Subdivision Act are met; and
   2. a council must refuse to certify a plan of subdivision if the conditions in section 6(1) of the Subdivision Act are not met.
3. The conditions in section 6(1) of the Subdivision Act include a council being satisfied that:

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.

1. Accordingly, a council must be satisfied that the plan of subdivision complies with 'those requirements of...any permit that relate to the boundaries of roads, lots, common property and reserves and the form and content of the plan'.
2. Pursuant to section 13 of the Subdivision Act, when a council issues a certification of a plan of subdivision, this is 'conclusive evidence that the provisions of this Act relating to certification including any preliminary requirements, have been complied with'.
3. Plan of Subdivision PS524032Q was certified by the Council on 10 May 2005.
4. Accordingly, pursuant to section 13 of the Subdivision Act, as at 10 May 2005 there was in existence 'conclusive evidence that the provisions of [the Subdivision Act] relating to certification including any preliminary requirements', had been complied with.
5. Pursuant to section 6(1), this certification was issued in relation to the requirements of the 2002 Permit that relate to the boundaries of roads, lots, common property and reserves and the form and content of the plan.
6. The 2002 Permit contains 37 conditions.
7. In relation to certification, condition 2 of the 2002 Permit is of particular relevance because it requires that prior to any application being made for certification of a plan of subdivision, a plan must be prepared to the satisfaction of the responsible authority showing the following:
   1. existing natural features;
   2. all road and lot boundaries;
   3. the boundaries of the proposed wetland and other common property reserves;
   4. topographic contours at a contour interval of not less than 2.5 metres;
   5. reserves for public open space;
   6. landscaping of road reserves and public open space reserves with locally indigenous vegetation; and
   7. details of fencing of the open space reserves.
8. In the absence of having before me the endorsed plan for the 2002 Permit, I am not certain what was shown in the endorsed plan in terms of these matters.
9. If I use the Road and Drainage Works plan as a guide, noting that it too was endorsed under the 2002 Permit[61] and that both endorsed plans should contain consistent detail, I see that the Road and Drainage Works plan shows:
   1. the boundaries of John Flagg Rise and Albert Ruttle Drive;
   2. the boundaries of 30 numbered lots, some of which are identified as being existing;
   3. an 'existing wetlands', which is arguably an 'existing natural feature' for the purposes of condition 2 of the 2002 Permit;
   4. an area marked as 'proposed wetland extension' and the boundaries of that area; and
   5. an area marked as 'electricity substation reserve'.
10. The above identified elements of the Road and Drainage Works plan appear to address both the matters contained in condition 2 of the 2002 Permit and those contained in section 6(1) of the Subdivision Act, noting that not all of what is required by condition 2 of the 2002 Permit is addressed. For instance, the Road and Drainage Works plan does not contain topographic contours at a contour interval of not less than 2.5 metres, although I acknowledge that the endorsed plan (that cannot be located) might have contained this detail. What is also not shown in the Road and Drainage Works plan is:
    1. boundaries of common property reserves;
    2. landscaping of road reserves and public open space reserves with locally indigenous vegetation; and
    3. details of fencing of the open space reserves.
11. Again, this detail might be included in the endorsed plan that cannot be located. However, it might also be that those elements were not identified in the Road and Drainage Works plan because no common property and no public open space reserves were created. I say this having regard to the two plans of subdivision that were certified following the 2002 Permit, being:
    1. PS502616L, which was certified on 27 December 2002; and
    2. PS524032Q, which was certified on 10 May 2005.
12. PS524032Q created:
    1. R-1 road reserve in favour of Bass Coast Shire;
    2. Reserve No 1 of 11m2 in favour of SPI Electricity Pty Ltd; and
    3. eight lots.
13. PS502616L created:
    1. R-1 road reserve in favour of Bass Coast Shire; and
    2. six lots.
14. In neither PS524032Q nor PS502616L was any other reserve created, nor any common property.
15. As such, in light of the material before me, it is clear that whilst condition 2 of the 2002 Permit identified certain details to be provided in the plan submitted to the Council prior to certification of the plan of subdivision, not all of those details were part of the subdivisions that occurred pursuant to the 2002 Permit. Importantly for the purposes of this proceeding, no common property was created and no open space reserve was created in the location of the Land.
16. Mindful of the effect of section 13 of the Subdivision Act, the certification of both PS524032Q and PS502616L by the Council may be relied upon by the applicant as conclusive evidence that the provisions of the Subdivision Act have been met in relation to PS524032Q and PS502616L.
17. As such, I find that certification of PS524032Q is 'conclusive evidence' that the requirements of the 2002 Permit and the Scheme have been met with respect to the land in PS524032Q; not just with respect to the Land but also in relation to other lots that appear to be partly within the Reserve (No.1), such as Lot 22, Lot 23, Lot 24, Lot 27 or Lot 28 on PS524032Q.
18. This certification occurred notwithstanding that there exists a mechanism for challenging certification,[62] which enables the certification of a plan to be stopped if there has been, among other things, a material breach of the Scheme. I am not aware of that provision having been utilised in this scenario. Even if it had been, what has eventuated is PS524032Q in its current form.
19. Given that no common property was created and no open space reserve was created in the location of the Land, I find that the Council's actions in certifying PS524032Q, which created the Land, is evidence that the Council did not require the creation of common property or an open space reserve in the location of the Land in order to meet the requirements of the 2002 Permit, for the purposes of certification of that plan of subdivision.

What is the effect, if anything, of the 2002 Permit on the proposal?

1. The Council contends that notwithstanding its certification of PS524032Q and the issue of titles from that plan of subdivision, including for the Land, that the conditions of the 2002 Permit require the creation of the wetlands on the Land. The Council contends that the conditions of the 2002 Permit remain in force and that the applicant is bound by those conditions.
2. The Council relies on condition 1 of the 2002 Permit, which states:

The subdivision as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

1. The Council also relies on condition 15 of the 2002 Permit, which states:

A wetlands area (shown on Reserve No. 1 on the "Ruttle Lane" Development Plan) must be developed on the land in accordance with a program to the satisfaction of the responsible authority.

1. The effect, if anything, of these conditions (and others) of the 2002 Permit on the proposal depends on whether those conditions have an ongoing effect that has survived the registration of PS524032Q and the creation of titles, including for the Land.
2. In short, below I find that:
   1. condition 1 did not survive registration of PS524032Q because of the nature of this condition but to the extent that condition 1 did survive registration of PS524032Q, in any event there is no inconsistency between what is allowed by the 2002 Permit and what is sought through the proposal; and
   2. condition 15 has no work to do because the condition is related to the carrying out of the subdivision works themselves, in that the development of a wetlands area should have been something that was completed prior, or in association with, the Land being set aside as a reserve or common property on the plan of subdivision. As the Land was not designated as either of these things, the opportunity for the Council to require the development of a wetlands on the Land has been lost
3. As such, I find that, for present purposes, the 2002 Permit does not prevent the approval of the proposal.

Reasons why the 2002 Permit does not prevent the approval of the proposal

1. The 2002 Permit allows subdivision.[63]
2. The 2002 Permit did not allow any use or development.
3. This distinction is important because of the different nature of what is allowed by each type of permit. That is:
   1. a permit for subdivision:
      1. authorises the creation of new certificates of title that can be disposed of separately and are different to their parent title;
      2. may authorise the creation of a reserve that will then vest in the identified entity and carry with it rights over that reserve, such as:

(1) a public open space reserve that vests in the municipal council and is available for public use and access;

(2) a road reserve that vests in the municipal council and is available for public carriageway and access;

(3) an electricity reserve that vests in an electricity authority and, generally, is not publicly accessible;

1. may authorise the creation of new legal interests, such as:

(1) an easement of way to provide access over one lot in favour of another lot;

(2) a restriction on title that burdens land and benefits other land;

(3) common property that is to be managed by an owners corporation and is accessible by members of that owners corporation but not the public at large;

1. a permit for use of land allows that land to be used in a particular way; and
2. a permit for development of land allows that land to be developed in a particular way.

1. Therefore, a permit for subdivision authorises the creation of new real property and associated proprietary rights or interests. Importantly, a council's action in approving a subdivision permit does not, in and of itself, create any new real property or associated proprietary rights or interests. Rather, this permission is a step in the process of the creation of these things, where any new certificate of title or proprietary right or interest will only come into being upon the registration of the relevant plan of subdivision. This is discussed further, below.
2. By contrast, while a permit for use and for development of land creates an entitlement to use or develop that land in accordance with that permit, and that entitlement runs with the land and can be transferred to a subsequent landowner, this is not the same as authorising the creation of new real property or proprietary rights.

1. The Council relies on Benedetti. Benedetti is often cited in support of the proposition that if you take the benefit of a permit, you must also accept the burden of a permit; that is, you take the good (the permission) with the bad (the obligations and requirements upon which the permit was issued).
2. The comments of the Court in Benedetti were made in the context of a permit that authorised development of land and the permit conditions in issue requiring that:
   1. the development not be altered without the consent of the responsible authority (being the 'first condition');[64] and
   2. no new buildings or works be erected or constructed, nor existing buildings be enlarged, rebuilt or extended without the consent of the responsible authority.[65]
3. In Benedetti, the Court stated that the first condition continues to have effect while the owner of the land takes the benefit of the permit. This was based on the statutory scheme regarding the expiry of permits, which contemplates that a development permit may continue to have effect after completion of the development, along with the plain meaning of the condition, the long-standing understanding of such conditions and the practical consequences of the alternative conclusion.[66]
4. The Court observed that:[67]

If Condition 1 were spent upon the completion of the development the physical context in which the building and works were permitted could be radically altered immediately after they were completed.

1. The Court then quoted from the Tribunal case under appeal:

Once one accepts as Cope's case requires that one must, that these conditions are not 'spent' on completion of the development, they operate as an indefinite constraint on what could otherwise be dealt with 'as of right' under the relevant Scheme. To hold otherwise would entail the view that items such as landscaping and so forth can be immediately reversed or demolished forthwith upon completion of the development a view of things which would reduce the planning permit process whether at the Responsible Authority level or the Tribunal level to a solemn farce.

[footnotes omitted]

1. The Court in Benedetti addressed the practical implications of this decision in terms of indefeasibility of title by referring to the warning to purchasers that is contained in the Sale of Land Act 1962 (Vic) to undertake a proper investigation of permitted land use before committing to purchase a property.[68]
2. Whilst I accept the Court's decision in Benedetti, as I must, that decision is only binding in situations with analogous facts. This is not such a situation, given the 2002 Permit authorises subdivision rather than development. This is an important distinction. Beyond this, I respectfully observe that the reasoning behind the Court's approach upholds the integrity of the system in which planning permit entitlements are issued subject to requirements or obligations that must be met in order to access the planning permit entitlement. However, in circumstances where proprietary rights are being created, the Torrens title system and its integrity also comes into play, whereby the register of land titles is the complete record of the property interests that apply to a parcel of land.
3. This is important and was explained by the High Court of Australia in Hillpalm.

1. Hillpalm dealt with two adjoining parcels of land in New South Wales. The two parcels were once part of the same parcel that was used for banana growing.
2. The respondent's land had no registered easement of way over the appellant's land although the plan of subdivision that had been sealed by the Shire clerk and registered at the relevant titles office included a depiction identifying the subject area as 'proposed right of way 10 wide'. Notwithstanding, the respondent contended that the condition granted the respondent's land an easement of way over the appellant's land and directed the construction of a track. The respondent contended that they could rely upon that condition, even though this was some time after the registration of the plan of subdivision and the creation of the titles.
3. The respondent sought a declaration that the appellant was in breach of the conditions of the development consent and sought orders for the appellant to create the easement and construct the track. The High Court of Australia rejected the respondent's application.
4. The majority of the High Court of Australia[69] took issue with the notion that there could be a continuing contravention by a later landowner of a development consent[70] where the land had been subdivided but without a condition of that development consent being met.[71] This was based on the distinction between a right in rem (that is, a right or action in property that is enforceable against the world) and a right in personam (that is, a right or action against a single or specific person only).
5. The High Court of Australia observed:[72]

If the Council's consent to the subdivision operated to create a right in rem that may be relied on by any later transferee of any lot in the subdivision, that would present a fundamental question about how the creation of such a right would be consistent with the effective operation of a system of Torrens Title.

1. After referring to the relevant property legislation, the High Court of Australia referred to the following comments of Barwick CJ in Breskvar v Wall[73]:

The Torrens system of registered title ... is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor.[74]

[Tribunal underlining emphasis]

1. The High Court of Australia then concluded on this topic:[75]

It follows that, when the appellant became registered as proprietor of an estate in fee simple in the appellant's land, it obtained the title described in the certificate of title. That title was free from any encumbrance or interest of the kind which the respondent contends it is now entitled to have created.

If the consent to the subdivision did create a right in rem, that would be a right or interest in the land not shown on the Computer Folio Certificate. There would then be a real and lively question about how the two statutory schemes (the scheme under the EPAA and the Torrens system for which the Real Property Act provides) were to be reconciled, and questions of implied repeal or amendment might arise. But those questions are not raised by this matter. That is because it was common ground that the appellant's title was not and is not now subject to any interest of the kind which the respondent asserted it was entitled to have the appellant create in its favour. If the respondent has any such right, it is a right to have an interest in land created and that is said to be a right enforceable by personal action against the appellant, not by any action or application to rectify the Register maintained under the Real Property Act. That right, if it exists, is not a right in rem.

The availability of rights in personam is entirely consistent with the Torrens system of title. The immediate indefeasibility of a title to land under the Torrens system does not deny "the right of a plaintiff to bring against a registered proprietor a claim in personam, founded in law or in equity, for such relief as a court acting in personam may grant" and those proceedings "may have as their terminal point orders binding the registered proprietor to divest himself wholly or partly of the estate or interest vested in him by registration". If the respondent has a right against the appellant, it is a personal right, not a right in rem, and that personal right must be found, if at all, in the relevant statutory provisions.

For the reasons given earlier, however, the respondent has no such right. Section 123 of the EPAA does not provide that right to the respondent in this case, the appellant not being in actual or threatened breach of that Act. No other provision of that Act was identified as founding the right asserted. That being so, the respondent's claim to orders obliging the appellant to create an easement and construct a right of way must fail.

[Tribunal underline emphasis, footnotes omitted]

1. The reasoning in Hillpalm was applied in Victoria by the Supreme Court of Victoria in Manderson.
2. Manderson involved neighbouring parcels of land in Barwon Heads that formed part of a 14-lot subdivision. That subdivision was approved by a subdivision permit that was issued on 19 January 1998 and included the following conditions:
   1. A neighbourhood design plan including building envelopes to protect and minimise clearance of existing vegetation on the lots shall be prepared to the satisfaction of the Responsible Authority and endorsed as part of this permit. Development on these lots shall be in accordance with the neighbourhood design plan.
   2. The plan of subdivision shall include a restriction sheet to limit any building or development on lots to accord with the approved neighbourhood design plan and building envelopes.
   3. All existing vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority.
3. On 13 April 2000, the Greater Geelong City Council certified a plan of subdivision with restrictions burdening and benefitting the lots, including the subject lots 5 and 6, as follows:
   1. The owners of lots 1-14 (all inclusive) shall not allow the erection of more than one dwelling on any single lot or further subdivision of any lot.
   2. The owners of lots 1-14 (all inclusive) shall not develop the land other than in accordance with an approved neighbourhood design plan pursuant to planning permit No.1057/97 [the subdivision planning permit].
4. It was the meaning and effect of the second restriction that was in issue.
5. Two neighbourhood design plans were approved by the council, in April 2000 and July 2000.
6. On 27 September 2000, the defendant's lot, being lot 6, was created, which included the second restriction as a covenant on the title.
7. The council approved or purported to approve further neighbourhood design plans in December 2000, February 2001 and September 2002.
8. The plaintiff acquired lot 5 in March 2005 and the defendant acquired lot 6 in November 2006.
9. In August 2015, the defendant removed vegetation and commenced the construction of an extension to her house that appeared to be located outside of the designated building envelope shown on the approved neighbourhood design plans. The plaintiff sought an injunction for the defendant to, among other things, remove the subject buildings and works.
10. The Court ordered that eight questions be answered,[76] of which the first two are most relevant for present purposes:

(a) Is planning permit 1057/97 [the subdivision planning permit] still in force or is it spent as a result of the certification of the plan of subdivision PS412071E [the plan of subdivision], the issue of the statement of compliance and the registration of the plan of subdivision?

(b) If the subdivision planning permit is spent as regards to any or all of conditions 16, 17 and 18, does restriction No 2 on the plan of subdivision have any legal effect?

1. In answering these questions, the Court began by:
   1. considering how a restriction may be removed or varied in Victoria, including under the PE Act; and
   2. finding that the operative neighbourhood design plan was the one that was in place at the time the restrictions were recorded on the titles.
2. In answering the first question, the Court referred to Hillpalm, stating:[77]

In Hillpalm Pty Ltd v Heavens Door Pty Ltd, the High Court of Australia 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. If council consent for a subdivision operated to create a continuing obligation or a right in rem, and that right affected a later transferee of a lot in the subdivision, there would be a fundamental question about how the creation of such an obligation or right would be consistent with the effective operation of a system of Torrens title.

[footnotes omitted]

1. The Court continued:[78]
   1. In Cope v Hobsons Bay City Council, Morris J, as President of the Victorian Civil and Administrative Tribunal, had to consider whether a planning permit was spent following the completion of the development authorised by the permit. His Honour observed that a planning permit that authorises the development of land may or may not have continuing relevance after the development has been carried out. The answer depends on both the nature of the development and the form of the permit (including the conditions in the permit). His Honour said:

In the case of a permit (or, for that matter, a planning scheme provision) allowing the subdivision of land, it has generally been accepted in Victoria that once the subdivision has been effected and new titles have issued, the permit (or planning scheme provision) is no longer relevant; and any condition which purports to have an independent operation after this time is invalid.

Thus, a responsible authority has not been able to enforce a condition imposed upon a subdivision by a planning scheme provision requiring acoustic protection to new dwellings once the subdivision had been carried out: see City of Whittlesea v Jala Pty Ltd. 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: Kruska v Whittlesea City Council.

[footnotes omitted, Tribunal underlining emphasis]

1. The Court went on to summarise what was said in Cope and the Court's view of this:[79]
   1. 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).
   2. I agree that, 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).

[footnotes omitted, Tribunal underlining emphasis]

1. As to whether the conditions in issue were spent or able to be enforced against new landowners, the Court held that conditions 16, 17 and 18 were all spent and did not survive the registration of the plan of subdivision, nor did the subdivision permit generally. The Court's reasons for this conclusion considered the wording and intention of the conditions as well as the concept of the creation of rights in rem:[80]
   1. In my view, conditions 16 and 17 of the subdivision planning permit have been implemented and are spent. The plain meaning of conditions 16 and 17 is that there would be restrictions on the development of the land as described in an endorsed or approved neighbourhood design plan and that such restrictions would be recorded on the titles to the new lots. Having regard to the mechanism chosen to control the development of the land, namely, restrictions recorded on the new titles, only one neighbourhood design plan was contemplated and amendments to the restrictions embodied in the neighbourhood design plan were to be effected by the legal means available for the amendment or variation of restrictions on title.
   2. It remains to consider condition 18, which requires the written consent of the Council for the removal, destruction or lopping of existing vegetation. I have concluded that condition 18, along with the subdivision planning permit generally, is spent. In my view, condition 18 was directed to the subdivision works and was not intended to survive the registration of the plan of subdivision and the creation of new titles so as to outlive all the other conditions in the subdivision planning permit and create rights in rem binding future owners of the land.

30. There are a number of reasons for this conclusion.

1. The first is that it would be unusual to create rights in rem by way of a condition in a permit to subdivide land. This would, as the High Court observed in Hillpalm, give rise to a fundamental question about its consistency with the operation of Torrens Title. Ongoing obligations or rights in rem can be created by way of a restrictive covenant or an agreement made pursuant to s 173 of the Planning and Environment Act. In this case, the mechanism of the restrictive covenant was used. Conditions 16 and 17 provided for rights and obligations attaching to the land in question to be created by way of the registration of a restrictive covenant on the new titles.
2. Secondly, condition 18 is arguably inconsistent with the creation of building envelopes in a neighbourhood design plan, as required by condition 16. The creation of building envelopes contemplated the removal of vegetation within the envelopes without the need for Council approval.
3. Finally, condition 18 sits most comfortably with the suite of conditions that follow it - conditions 19 and 20 - which respectively limited topsoil removal without the consent of the Council and required topsoil disturbed 'as a result of works permitted by this permit' to be stockpiled for later redressing of the land. Conditions 19 and 20 were directed to the way in which the subdivision works were to be carried out. In my view, like conditions 19 and 20, condition 18 was directed to the carrying out of the subdivision works themselves.
4. The answer to the first question is therefore 'No'. The subdivision planning permit is spent. Conditions 16, 17 and 18 have no further work to do and are of no force or effect.
5. As for the second question, the Court found that even though the subdivision permit was spent, this did not impact upon the enforceability of the second restriction because this was recorded as a restriction on title;[81] hence, it was the restriction itself that could be enforced.

1. The reasoning in Manderson was applied by the Supreme Court of Victoria, Court of Appeal in Khan and then by the Supreme Court of Victoria in Zaric. These cases were related and arose in circumstances that differ from those before me. Notwithstanding, they demonstrate the Court's application of this principle.
2. Khan involved an application for an enforcement order that was lodged with the Tribunal in relation to public works required by conditions of a subdivision permit for which a plan of subdivision had been registered. This application was rejected by the Tribunal for lack of jurisdiction. The Tribunal's decision was appealed to the Supreme Court of Victoria, where the appeal was dismissed. The decision of the Supreme Court of Victoria was appealed to the Court of Appeal.
3. At issue in Khan were public works that are the subject of the statement of compliance that is issued under the Subdivision Act, which occurs after the certification of the plan of subdivision.
4. In explaining its reasons for refusing the appeal, the Court of Appeal stated:[82]
   1. The terms of condition 9, which are predicated on the developer constructing public works to the satisfaction of the Council before the issuing of a statement of compliance, simply do not allow for any revisiting of the standard of work after the statement of compliance has issued. Condition 9 does not provide for any obligations to subsist after the statement of compliance has issued.
   2. The point may be tested this way. Once the certificate of compliance had issued attesting to the Council's satisfaction and the plan was registered it would not be open to the Council to contend that the construction of the roads did not reflect the terms of the permit issued under the Planning and Environment Act and ask the permit holder to fix them. To the extent that the permit holder had any ongoing obligations in relation to the standard of work, they were not to be found in condition 9. No different result can follow simply because the application for enforcement is brought by someone else.
   3. Further, to allow the enforcement of a permit condition of the kind expressed in condition 9 as against the developer after title in the land had vested in the Council would conflict with the statutory scheme which provides for the subdivision of land into lots and the vesting of roads in favour of the Council free from encumbrances.

1. The Court of Appeal in Khan acknowledged that there might be conditions on a subdivision permit that survive registration of the plan of subdivision but this will depend on the wording and nature of the condition:[83]
   1. Manderson does not provide authority for the proposition that a condition on a planning permit for a subdivision can never survive registration of the plan (in the sense of imposing ongoing obligations).

1. ...in each case, the resolution of the issue will turn on the construction of the permit, including any conditions imposed, in the context of the Subdivision Act. This is made clear by the analysis of Osborn J in Benedetti v Moonee Valley City Council.

1. The approach taken by Emerton J in Manderson applies, with the same result, to each of the conditions which Mr Khan sought to enforce by his application.

1. Zaric dealt with the same subdivision permit as was in issue in Khan but this proceeding was brought under a different provision and by Mr Khan again but with additional applicants.
2. In upholding the decision of the Tribunal and in following the Court of Appeal in Khan, in Zaric the Court reiterated the effect of certification, the issuing of a statement of compliance and registration of a plan of subdivision, and how this relates to the conditions on the subdivision permit. The Court stated:[84]

1. Both Dwyer DP and this court must follow the decision of the Court of Appeal in the third VCAT proceeding, which is determinative of the questions in the sixth VCAT proceeding. The Court of Appeal explained precisely why the relevant conditions in the permit and planning scheme in question did not survive the registration of the subdivision and selling of the lots:

(a) The Council was the responsible authority for the purpose of granting an application for a permit of subdivision, subject to conditions. > > (b) Subdivision of land must be done in accordance with the Subdivision Act 1988 (Vic). A developer/owner of land prepares a plan of subdivision. The purpose of the plan is to provide the template for the division of the land into lots and the specification of the relevant boundaries. Council certifies the plan if it complies with statutory requirements and the planning scheme and any relevant permits; any person who constructs works must comply with the plan, planning scheme or permit. Once Council certifies that the plan meets the requirements of the planning scheme and any permit that relates to the boundaries of roads, lots, common property and reserves, and the form and content of the plan, then public works may commence. Once works have been completed, Council issues a statement of compliance, which confirms the public works on the subdivision comply with relevant statutory obligations under the P & E Act. This includes roads, reserves open spaces, services, sewerage, drainage, water supply, power, gas or telephone connections. Council will issue a statement of compliance if satisfied that all requirements under the P & E Act that relate to the public works have been met. > > (c) The Registrar may register the plan of subdivision if it appears the plan has been certified by Council and there is a statement of compliance. The legal effect of the registration of the plan is set out in s 24 of the Subdivision Act. Any easement, restriction, or other right is created, varied or removed as specified in the plan. Land set aside as a road vests in the Council free of any encumbrance and becomes a public highway.

1. Mr Khan's complaints pertained to the quality of the public works within the subdivision by reference to the standards said to have been set by the planning scheme, permit conditions and endorsed plans. The Court of Appeal considered each of the relevant conditions that might correspond to these complaints and concluded that whatever obligation was imposed by the permit, it was an obligation imposed on the owner to undertake roadworks to the satisfaction of the Council. The statement of compliance could only be issued once the Council was satisfied that all requirements under the P & E Act relating to public works had been met, and it did so on 7 December 2010.
2. The terms of the permit conditions did not allow for revisiting the standard of work once the statement of compliance was issued. The statutory scheme similarly does not permit the conditions of the permit to be enforced after the subdivision has been registered and the lots and roads vested in new owners and the Council, respectively, free of encumbrances. This is consistent with the 'general rule' that a planning permit for a subdivision will be spent once the plan of subdivision has been registered and new titles issued. When new titles are issued, the permit or planning scheme are no longer relevant and are of no continuing independent force or effect.
3. This general rule might be inapplicable in the context of the operation of a particular permit or condition depending on its proper meaning, but the Court of Appeal went through each of the relevant conditions in this case and held that they did not survive registration and that the planning scheme, which identified the standards which informed the content of the plan of subdivision, also did not survive registration.

[footnotes omitted, Tribunal underlining emphasis]

1. In summary, the cases relied upon stand for the proposition that, broadly speaking, conditions on a subdivision permit that either require action prior to the certification of a plan of subdivision or the issue of a statement of compliance, or otherwise are related to the carrying out of the subdivision works themselves, will not survive the registration of the plan of subdivision. This is because the subject matter of those conditions will be spent once the certification or statement of compliance is issued, given the issue of those approvals by a council are confirmation that the council is satisfied that the associated requirements of the Subdivision Act are met.
2. For example, if a permit condition required that a plan be prepared to the satisfaction of the responsible authority showing lots, roads and public open space reserves prior to application for certification of the subdivision, the issue by the council of the certification will be confirmation that this condition has been met.
3. As another example, if a permit condition required the construction of roads but did not specify when this was to be completed, the issue by the council of a statement of compliance likely would be confirmation that this condition had been met given a road is public works.
4. That is not to say that no condition on a subdivision permit will ever survive registration of the plan of subdivision; just that certain types of conditions will not and other conditions might, depending on the nature and wording of the condition.

Conditions precedent to certification or statement of compliance

1. The conditions precedent[85] to certification or to the issue of a statement of compliance that are in the 2002 Permit include:
   1. condition 2, which is expressed to require action before application is made for certification of the subdivision; and
   2. conditions 6, 17 and 30, which are expressed to require action prior to the issue of a statement of compliance.
2. I extracted condition 2 of the 2002 Permit earlier. In terms of what is required by condition 2 of the 2002 Permit, and specifically the boundaries of any common property or reserves, I found that:
   1. the certification of PS524032Q, which created the Land, is evidence that the Council did not require the creation of common property or any open space reserve in the location of the Land in order to meet the requirements of the 2002 Permit, for the purposes of certification of that plan of subdivision; and
   2. given that no common property was created and no open space reserve was created in the location of the Land, the Council's actions in certifying PS524032Q is evidence that the Council did not require the creation of common property or an open space reserve in the location of the Land in order to meet the requirements of the 2002 Permit, for the purposes of certification of that plan of subdivision.
3. Accordingly, given its earlier actions in certifying PS524032Q, the Council cannot now require the provision of common property or an open space reserve on the Land.
4. Having regard to the nature of condition 2 of the 2002 Permit - it being a condition precedent to the issue of a certification of the relevant plan of subdivision - I find that condition 2 is spent and cannot now be revived in order to require the provision of common property or an open space reserve on the Land.
5. As such, condition 2 cannot be relied upon as a reason that the proposal cannot be approved.
6. The same logic, approach and consequence applies in relation to conditions 6, 17 and 30 of the 2002 Permit.

1. I acknowledge that condition 1 provides that the subdivision as shown on the endorsed plan must not be altered without the prior approval of the council. In relation to this I say the following.
2. First, as I have not been provided with the endorsed plan I am not aware of what is shown on the endorsed plan. Assuming consistency between the endorsed plan and the Road and Drainage Works plan, all that plan shows is an 'existing wetlands' and a 'proposed wetlands extension' being located on lot '29', which is on a different alignment to Lot 29 on PS524032Q that was ultimately created. The Road and Drainage Works plan does not show this area as being a reserve or common property.
3. Second, having regard to the Explanatory Report, I accept that it appears it was never the intention for the wetlands area to be created as a reserve to vest in the Council or a water authority. Rather, it was envisaged that this area would become common property and that a body corporate would be created to maintain the common property. The creation of common property and what is now termed an 'owners corporation' occurs under the Subdivision Act as part of the subdivision of land. That did not occur. There was no common property created at all in the area covered by the 2002 Permit, let alone on the Land.
4. Third, the lack of any common property having been created is significant. This is because when common property is created this brings with it legal rights (and liabilities) in terms of access to the common property and maintenance of the common property. The common property is issued with its own folio and an associated owners corporation is created. This occurs through the subdivision of land but did not occur here. The Council's certification of PS524032Q is evidence that the Council did not require the creation of common property.
5. This has implications for condition 1. This is because (and again assuming that the endorsed plan is consistent with the Road and Drainage Works plan), the subdivision as shown in the endorsed plan will not be altered by allowing the proposal on the Land because the Land is not identified in the endorsed plan as being common property. Put another way, because the Land is not identified as being common property or a reserve, if the Land is developed for a dwelling as is sought by the proposal, this will not be altering what is shown in the endorsed plans.
6. Fourth, in any event, given that subdivision of the area has occurred and titles have issued, I regard this condition to be one that did not survive registration of the relevant plan of subdivision. This is because there is no more work for this condition to do, the area having been subdivided.
7. If I am wrong about this, and this condition did survive registration of PS524032Q, I find that in any event there is no inconsistency between what is allowed by the 2002 Permit and what is sought through the proposal. Therefore, it could be said that the subdivision as shown on the endorsed plan is not altered by approval of the development of the Land with a dwelling in accordance with the proposal.

Other conditions referring to common property or a reserve

1. Given there is no evidence before me of the Land having been identified as common property or a reserve, this also has implications for any other conditions on the 2002 Permit that, whilst they may have been expressed to be of an ongoing nature, pertain to 'common property' that has never been created.
2. This includes condition 16, which requires all common property to be landscaped and maintained to the satisfaction of the responsible authority. As no common property has been created, there is no common property to landscape.
3. By extension of the logic applied above, it also extends to any condition that pertains to areas of public open space, such as condition 37.1, given none of these have been created either.

1. Condition 15 requires the development of a wetlands area on the Land, as follows:

1. Whilst this condition refers to 'Reserve No.1' on the RLI Development Plan, having regard to the wording of the condition, I regard this simply to be stating where the wetlands area is to be developed, rather than requiring that it be created as a 'reserve' under the Subdivision Act. That is, condition 15 is seeking for a wetlands area to be developed on the area shown as 'Reserve No.1' on the RLI Development Plan.
2. This interpretation is consistent with the fact that PS524032Q did not create a reserve in this area.
3. To the extent that condition 15 imposes an obligation upon the holder of the 2002 Permit to develop a wetlands area in a specific part of the subdivision, given that obligation did not find its way into or become attached to the title for the Land, that obligation cannot now bind the owner of the Land. The opportunity has been lost.
4. Through the Council's reliance on condition 15, notwithstanding the Land not being set aside or designated as a reserve or common property, in effect the Council is seeking the Tribunal to look behind the certification of PS524032Q and interpret condition 15 as if a reserve or common property had been created on the Land. I say this because requiring the development of a wetlands area on a private lot is, in effect, an encumbrance on that private title and one that is not recorded on the register of titles. That is, by requiring the lot to be developed with a wetlands area, it is preventing that land area from being developed and used for other purposes. This is akin to, although not equivalent to, a restriction being imposed on the title that prevents the area from being used and developed for other purposes. Per Hillpalm and the Victorian cases that adopted its reasoning, if the Land was intended to be subject to an encumbrance, impediment or burden that limits its future use and development, this should have been imposed on the title when the subdivision was registered. It was not.
5. One way that the obligation in condition 15 could have been secured was through a section 173 agreement. Notably, this was done in relation to Lot 28 on PS344899X through the Lot 28 s173 Agreement. I acknowledge the content of the letter extracted in Figure 17 of this decision regarding the Council's refusal to consolidate lots to create a wetlands area, however this does not explain why the Council did not seek a separate section 173 agreement for the Land, on similar terms to the Lot 28 s173 Agreement.
6. I acknowledge the point made by the Council that Lot 28 on PS344899X was not identified as common property or a reserve and yet that lot contains a reserve and is being managed with a wetlands area. The reason why Lot 28 is in a different situation is because that property is subject to the Lot 28 s173 Agreement, and it is through that mechanism that the wetlands that are on that lot have been developed, maintained, conserved and protected. There is no such section 173 agreement recorded on the Land.
7. I acknowledge that in Khan it was accepted that there might be some conditions on a subdivision permit that survive registration of a plan of subdivision. I do not regard condition 15 to be one such condition. This is because of what is being sought to be imposed by condition 15, as discussed above. That is, in my view condition 15 is related to the carrying out of the subdivision works themselves because it deals with the development of an area (as a wetlands area), where that area should have been set aside either as a reserve for public benefit, or, as common property for use by owners of lots in PS524032Q, by the 2002 Permit.
8. In this respect, I view condition 15 as similar to condition 4 of the 2002 Permit that requires all roads to be constructed to plans and specifications to the satisfaction of the responsible authority. Condition 4 does not contain a timeframe by which those roads are to be constructed but the inference is that, given it is dealing with the construction of roads, that this will be completed prior to the completion of the subdivision.
9. I accept that another way of achieving the development of the wetlands area might be through the imposition of a mechanism such as a section 173 agreement however, as discussed above, this has not been done.
10. By contrast, I accept that if there were conditions in a subdivision permit that referred to the ongoing management of an area that had been created as a reserve or as common property on title and that existed in fact on that title, such conditions might possibly have ongoing operation. However, that is not what is before me for determination. In any event, in my experience it is often clearer and more reliable to impose such conditions in a different mechanism (such as a section 173 agreement) in order to put their enforceability beyond doubt. However, this needs to be addressed on a case-by-case basis.
11. The Council submits that there is no inconsistency between its approach and what has been held in the various cases regarding rights in rem and the Torrens title system.
12. For the reasons given above, I disagree. What the Council is seeking to do is to impose an encumbrance or impediment upon the use and development of the Land in the absence of this being recorded on the title, which is contrary to the Torrens title system.
13. The Council says that, for the purposes of section 6 of the Subdivision Act, it is not taking issue with the boundaries of any lots, common property or reserves, but rather, the use and development of a lot, namely the Land. As such, what is certified through section 6 of the Subdivision Act, in association with section 13 of the Subdivision Act, does not relate to the use and development of a lot.
14. Again, I disagree. Section 6(1) of the Subdivision Act deals with more than just the boundaries of lots, common property or reserves; in referring to the boundaries of those things, by inference it is also referring to the identification and creation of those things for their identified purpose, be it a lot, a road, a reserve or common property. I say this because when land is subdivided, it is categorised as one of the following: a lot; a road; a reserve; or common property.
15. Where a lot is created, I accept that there might be encumbrances or restrictions imposed, including through other legislation, that can limit the use or development of the lot or create rights over the lot for the benefit of other land: for instance, as an easement, a restrictive covenant, a restriction on a plan of subdivision or a section 173 agreement. However, in each instance the encumbrance or limitation is imposed upon the certificate of title and is transparent to any future purchaser.
16. Through certification of the plan of subdivision that shows the Land being created as a lot (as opposed to the other options), and a lot that is not subject to any encumbrance, it is evident on the face of the record that there is no legal encumbrance upon, or impediment to, the use and development of the Land. If I was to interpret condition 15 as imposing such an encumbrance on the Land, this would fly in the face of what is shown on, and not shown on, the certificate of title for the Land. This is contrary to the principles of the Torrens title system.
17. That is not to say that the landowner can use or develop the Land in any way that they wish: they must still comply with any relevant laws including the Scheme.[86] However, that is prospective in that if the owner of the Land seeks to undertake a particular use or development, they might require a permit (or be prohibited).
18. By contrast, what condition 15 is seeking to do is impose a requirement upon the owner of the Land that they must develop the Land in a particular way and, in effect, cannot use and develop that part of the Land in a way that is inconsistent with condition 15. This is different to the regulation imposed by the Scheme and is prescriptive in nature.
19. In effect, the Council is seeking to create another form of encumbrance outside of the parameters of the Subdivision Act or other legislation.
20. For the above reasons, I find that given the subject matter of condition 15, it is a condition that is related to the carrying out of the subdivision works themselves, in that the development of a wetlands area should have been something that was completed prior, or in association with, the Land being set aside as a reserve or common property on the plan of subdivision. As the Land was not designated as either of these things, the opportunity for the Council to require the development of a wetlands on the Land has been lost. This being the case, I find that condition 15 has no work to do and cannot be relied upon as a reason that the proposal cannot be approved.
21. As a separate issue, in any event it is unclear what is required by condition 15 because:
    1. there does not appear to be a program that has been prepared for the development of the wetlands area, contrary to the wording of condition 15;
    2. the Road and Drainage Works plan identifies an 'existing wetland' and a 'proposed wetland extension' generally in the area of the Land, which begs the question as to what is being required to be developed - that is, is it the 'proposed wetland extension' that is to be developed because the other wetlands area is already existing?; and
    3. the location of the 'existing wetland' and the 'proposed wetland extension' spans a lot that is markedly different to the Lot 29 on PS524032Q that was ultimately created.

1. In light of the decisions referred to earlier, I accept that there might be instances where a right in personam exists that enables a person to pursue in a court a personal right to have an interest in land created, where that right is enforceable by personal action against another person.[87] These personal rights are distinguishable from the rights in rem that are recorded on the face of the title and enforceable against the world.
2. The applicant has been the registered proprietor of the Land since 14 January 2021.[88]
3. Based on the material before me, the applicant was not the owner of the land when the RLI Development Plan was prepared and Amendment L27 was being considered.[89] Nor does it appear that the applicant purchased the Land from that landowner, given the material before me includes the Transfer of Land for certificates of title volume 11955 folio 096 (i.e. the Land) and volume 11955 folio 095 that transferred those parcels from Ruttle Nominees Pty Ltd to Matthew Joseph Lynch and Jodie Rahda Lynch, and created the Restrictive Covenant[90] that indicates that transfer occurred in April 2018.
4. As such, given the material before me, there is nothing to suggest that there are any rights in personam asserted, nor was it contended that this was the case.
5. In any event, even if they were such personal rights asserted, this would not change the fact that the relevant certificate of title does not record any encumbrance or limitation on the Land in the nature of a reserve or common property. Rather, if those personal rights were asserted they would need to be pursued in another forum, against the appropriate person and established by a decision of the court that amends the record prior to this being a matter to which I would have regard.

1. The certificate of title for the Land does not set aside or demarcate the wetlands area as a reserve or common property, nor is the certificate of title subject to any encumbrance or restriction requiring the Land to be developed with a wetlands area.
2. The Council cannot now rely on the conditions of the 2002 Permit to impose an encumbrance or impediment on the Land in the form of a requirement to develop a wetlands on the Land, because this was not imposed by PS524032Q through which the title for the Land issued.
3. Notwithstanding what might have been the intention of the Council at one time in relation to the creation of common property or a reserve in this subdivisional area, given what has arisen as a consequence of the registration of the various plans of subdivision, including PS524032Q, such intentions are unrealised. Nor, it would seem, has the Council taken any other steps to rectify this situation in the last 23 years (i.e. since the issue of the 2002 Permit).

Is the proposal generally in accordance with the RLI Development Plan?

1. In the previous sections I have found that:
   1. both the permission required under the RLZ1 for construction of buildings within 100 metres of the registered waterway and the permission required under clause 52.17 for removal, destruction or lopping of native vegetation are required to be generally in accordance with the RLI Development Plan;
   2. the majority of the Land is located in the Reserve (No.1) shown on the RLI Development Plan;
   3. the registration of PS524032Q is evidence that the Council did not require the creation of common property or an open space reserve in the location of the Land in order to meet the requirements of the 2002 Permit, for the purposes of certification of that plan of subdivision; and
   4. notwithstanding what might have been the intention of the Council at one time, the Council cannot now rely on the conditions of the 2002 Permit to impose an encumbrance or impediment on the Land in the form of a requirement to develop a wetlands on the Land, because this was not imposed by PS524032Q through which the title for the Land issued.
2. In light of the above, I must now determine whether the proposal is generally in accordance with the RLI Development Plan, for the purposes of the permissions required.
3. In doing so, I answer the applicant's question of law.

RLI Development Plan in context of Schedule 20 of Amendment L27

1. The RLI Development Plan was created through Amendment L27.
2. The Explanatory Report states that Amendment L27 proposed to insert Schedule 20 to the planning scheme, which 'contains an Overall Development Plan which sets out the available form of subdivision, as well as conditions of development'.
3. That 'Overall Development Plan' was the RLI Development Plan.
4. Schedule 20 states that it contains controls and guidelines for the subdivision and development of land.
5. Amongst the stated objectives of Schedule 20 was the creation of a wetlands area.
6. Schedule 20 includes conditions under the following headings:
   1. Conditions of development (subdivision);
   2. Conditions of development (buildings and works);
   3. Conditions of development (landscaping and native vegetation); and
   4. Conditions of development (common property).
7. Under the heading 'Conditions of development (common property)', Schedule 20 includes the following conditions:

6.1 A wetlands (shown as Reserve No. 1 on the overall development plan) must be developed on the land in accordance with a program to the satisfaction of the Responsible Authority.

6.2 All common property must be landscaped and maintained to the satisfaction of the Responsible Authority.

1. Whilst these two conditions have been replicated in conditions 15 and 16 of the 2002 Permit, they originally existed within a framework of conditions in Schedule 20.
2. Those two conditions also now exist in clause 3.0 of Schedule 1 to the DPO under the heading 'Common property'.
3. Importantly, the first condition in Schedule 20, under the heading 'Conditions of development (subdivision)' was:

3.1 The land must be subdivided generally in accordance with the overall development plan which forms part of this schedule.

1. Condition 3.2 is on similar terms to condition 2 of the 2002 Permit, including the requirement that prior to certification, a plan showing, among other things, 'the boundaries of the proposed wetlands and other common property reserves', be prepared.
2. Read holistically, I interpret Schedule 20 to be requiring through the subdivision of the land in accordance with what is shown in the RLI Development Plan:
   1. the creation of the wetlands as a common property reserve:

with condition 3.2 (iii) of Schedule 20 seeking that the plan for certification show 'the boundaries of the proposed wetlands and other common property reserves',[91] suggesting that the proposed wetlands is another form of common property reserve;

with reference to condition 3.8 and 3.9 of Schedule 20, mindful that when common property is created so too must be an owners corporation (previously a 'body corporate');

1. the development of a wetlands on the Reserve No. 1 area of the RLI Development Plan in accordance with a program to the Council's satisfaction:

1. all common property must be landscaped and maintained to the satisfaction of the Council, which by inference includes the wetlands area:

1. However, when PS524032Q was registered, having been certified by the Council, none of the above occurred.
2. Thus, what has eventuated is a layout and form of subdivision that has been registered but departs both from the content of what was shown in the RLI Development Plan and what was envisaged in the Explanatory Report for Amendment L27.

What is contained in clause 3.0 of Schedule 1 to the DPO?

1. In addition to a proposal needing to be generally in accordance with the RLI Development Plan, the DPO head clause requires a permit granted to include any conditions or requirements specified in Schedule 1 to the DPO.
2. In large part, the contents of clause 3.0 of Schedule 1 to the DPO replicate the conditions in Schedule 20 to Amendment L27.
3. The contents of clause 3.0 of Schedule 1 to the DPO contain conditions or requirements under the following headings:
   1. Subdivision;
   2. Buildings and works;
   3. Landscaping; and
   4. Common property.
4. Given this permission is for development, the requirements/conditions pertaining to subdivision are not relevant to the current application.
5. Given this permission is for development, the conditions or requirements pertaining to 'Buildings and works' and 'Landscaping' are of potential relevance. These are:

Buildings and works

One house (and ancillary outbuildings) only is permitted on each lot.

A building envelope on each lot must not exceed 1500 square metres in area.

The location of each building envelope must be to the satisfaction of the responsible authority.

Building envelopes must be sited so as to minimise the disturbance to existing native vegetation.

All buildings and works (excluding dams, fences and access roads) must be constructed within the specified building envelope.

All building materials must be non-reflective and coloured to suit the surrounding landscape.

All buildings must be designed and sited so as to minimise their visual impact.

Landscaping

Areas outside the designated building envelopes may only be planted with native vegetation, of a species indigenous to the area.

1. To the extent that these matters are 'requirements' and not 'conditions', they are to be assessed in determining whether the merits of the proposal meet the requirements of the DPO1. However, these do not go to whether the proposal is generally in accordance with the RLI Development Plan.
2. To the extent that these matters are 'conditions', they will need to be imposed in any resultant planning permit.
3. Notably for present purposes, under the heading 'Common property' are the following:

Common property

A wetlands area (shown as Reserve No. 1 on the "Ruttle Lane" Development Plan ) must be developed on the land in accordance with a program to the satisfaction of the responsible authority.

All common property must be landscaped and maintained to the satisfaction of the responsible authority

1. Given that there is no common property on the Land, these requirements/conditions have no work to do in the context of the current application.

Is the proposal generally in accordance with the RLI Development Plan?

1. The proposal requires permission:
   1. under the RLZ1 for development of the dwelling given the dwelling is to be located within 100 metres from a waterway; and
   2. under clause 52.17 for removal, destruction or lopping of native vegetation.
2. Those permissions must be generally in accordance with the RLI Development Plan.
3. I have found that the majority of the Land is located in the Reserve (No.1) area shown on the RLI Development Plan.
4. Notwithstanding this labelling, a reserve was not created in this part of the Land when PS524032Q was registered and titles issued. Nor, for that matter, was a reserve created on other parts of the subdivision which I have found are covered by the Reserve (No.1), being Lot 28 on PS344899X or Lot 22, Lot 23, Lot 24, Lot 27 or Lot 28 on PS524032Q.
5. If I was to have regard to the Explanatory Report, that document envisages there will be a common property wetlands area on the Land , which was not created either.
6. Logically, in circumstances where a development plan applies to land, a plan of subdivision would reflect what is shown in that development plan.
7. Having regard to my earlier findings, this is not the case here. Based on the material before me, I do not know why there are differences between what is shown in the RLI Development Plan and what was approved in PS524032Q.
8. So what does this mean for the proposal, given that it is required to be generally in accordance with the RLI Development Plan?
9. Mindful of the operation of section 13 of the Subdivision Act, I agree with the applicant that the certification of PS524032Q is conclusive evidence that the provisions of the Subdivision Act relating to certification including any preliminary requirements, must have been complied with.
10. As such, to the extent that it is contended that the proposal is not generally in accordance with the RLI Development Plan because it seeks to develop the Land with a dwelling and remove native vegetation whereas that area is shown on the RLI Development Plan as containing Reserve No. 1, the opportunity for the Land to have been set aside or demarcated as a reserve or common property for a wetlands was lost upon the certification, and then registration, of PS524032Q.
11. For whatever reason, through the Council's certification of PS524032Q, the Council approved the creation of the Land as a private lot, free of any encumbrance or restriction or designation as a reserve or common property.
12. In the particular circumstances of this case, given:
    1. the RLI Development Plan was created and the 2002 Permit was issued, both before PS524032Q was certified;
    2. the certification of PS524032Q by the Council should have occurred having regard to the content of both the RLI Development Plan and the 2002 Permit;
    3. section 13 of the Subdivision Act is conclusive evidence that the provisions of the Subdivision Act relating to certification including any preliminary requirements have been complied with, which would include the requirements of the Scheme, the 2002 Permit and the RLI Development Plan,

I find that, in effect, what is shown as being Reserve (No.1) on the RLI Development Plan has been superseded by what is shown in PS524032Q, which is one or more (private) lots in that area.

1. In these particular circumstances, where the Council has certified a plan of subdivision that, on its face appears to not be generally in accordance with the RLI Development Plan, the fact of certification of that subdivision plan by the Council means that the subdivision plan must be generally in accordance with the RLI Development. By logical extension, in these particular circumstances, I find that:
   1. the proposal does not need to contain a reserve or wetlands area on the Land in order for it to be generally in accordance with the RLI Development Plan; and
   2. the proposal to construct a dwelling (including an outbuilding) and to remove native vegetation is generally in accordance with the RLI Development Plan.[92]
2. This being the case, in answer to the applicant's question of law (which I extracted earlier) is 'yes'.

1. I now turn to the merits of the application.
2. The intended location of the buildings and works within 100 metres from a waterway is the trigger for the development permission under the RLZ1.
3. If not for that, the buildings and works would not have required a planning permit under the RLZ1 given the use of the Land for the purposes of a dwelling is as-of-right in the circumstances.
4. The applicant proposes to construct the following:
   1. a dwelling measuring 320m2 and a carport within a building envelope of 1,050m2 where the building envelope is set back from the eastern boundary by 111.68 metres;
   2. an outbuilding (shed) measuring 144m2 within a building envelope of 300m2 where the building envelope is set back from the nearest boundary by 88.21 metres;
   3. the dwelling and shed are to be constructed of a combination of timber cladding, light grey concrete render, drystone masonry walling and clear glass panels, with a monument matt metal roof;
   4. a land application area of 546m2 located to the south of the dwelling, which is set back 3.6 metres from the southern boundary; and
   5. associated driveways to be designed in accordance with a vegetation offset report.
5. The dwelling building envelope is set back 39.5 metres from the registered watercourse while the outbuilding envelope is set back 54.31 metres from the registered watercourse.
6. Amendments to the design prior to the Council making its decision resulted in a reduction in the potential damage to trees along the proposed driveway and the enabling of the retention of other trees.
7. Earlier I addressed the purposes, permit requirements and decision guidelines of the RLZ, noting that Schedule 1 to the RLZ does not contain any substantive content.
8. The Council's delegate report describes the Council's support for the proposal, but for the RLI Development Plan issue, as follows:[93]

1. At the hearing, the Council confirmed in oral submissions that it does not have any major concerns with the proposal other than the fact that it says the proposal does not accord with the RLI Development Plan and the DPO1. Specifically, the Council submits that there is nothing really objectionable about the proposal in terms of its design, location, amenity impacts or context.
2. I find that the proposal is an acceptable planning outcome under the RLZ1. I say this for the following reasons.
3. The proposed development of the Land with a dwelling and associated outbuildings in an area that contains dwellings on similarly-sized, and often smaller, allotments, is consistent with the purpose of the RLZ to provide for residential use in a rural environment. This form of rural living proposal is consistent with the development of surrounding lots within this subdivision.
4. The proposed materials, finishes and colours of the built form will blend with the surrounding environment, also noting the slightly undulating topography of the site, which will lessen built form visibility in some respects, and will provide an appropriate response to the character and appearance of this rural living area.
5. I find that the proposal will result in a development which is consistent with orderly planning and the prevailing character of the area.
6. The generous setbacks of the building envelopes for the dwelling and the outbuilding from the eastern boundary will provide sufficient space between the built form and the adjoining property, noting that the property to the east is agricultural land (extensive farming) with an area of approximately 61 hectares that contains a dwelling that is located further north.
7. The lesser setback of the outbuilding building envelope from the southern boundary is acceptable in the context of that southern property being Lot 28 on PS344899X, which is burdened by the Lot 28 s173 Agreement and contains a water body and vegetation adjacent to this part of the Land.
8. The construction of the buildings on the Land are located towards the rear of the Land on cleared areas that are relatively flat, which also enables the flora, fauna and landscape features of the Land to be maintained, including the large dam to the immediate west and the other waterbodies in the centre and far west of the Land.
9. Further, as identified in the Native Vegetation Assessment prepared by ID Ecological Management[94] ('NV Report') the required vegetation clearing is of relatively low-quality vegetation[95] and:

The vast majority of the vegetation within the property is to be retained and enhanced with revegetation in degraded areas. Dead trees are also to be retained where safe to do so, to act as habitat trees.[96]

1. The design has been modified to have a lesser impact on native vegetation, although some native vegetation is still required to be removed. The NV Report details the vegetation offsets required, following avoidance and minimization of loss as a result of building siting.
2. The proposed access road generally follows the existing grass track but will be modified to minimise impacts on vegetation. The proposed infrastructure can be appropriately accommodated on the Land.
3. As such, the built form will have a minimal impact on the natural physical features of the environment.
4. The land application area has been designed to ensure that the waterway and water areas will not be impacted by nutrient loads. The effluent fields are in excess of 30 metres from the dam and a minimum of 64 metres from the registered watercourse. The location of the land application area has also been designed mindful of reducing impact on native vegetation.
5. Further, the relevant catchment management authority[97] has issued the required works on waterways permit in relation to the installation of the driveway culverts over the registered watercourse.[98] This supports the notion that the proposal will not have any unreasonable impact upon the registered watercourse on the Land and, to this extent, will protect that natural resource on the Land.
6. Separately, the Council has also issued a Septic Tank Permit to construct, install or alter Onsite Wastewater Management System[99] in relation to the onsite wastewater management.
7. I am mindful that pursuant to the DPO1, any permit granted must include any conditions or requirements specified in clause 3.0 of Schedule 1 to the DPO.
8. In terms of the requirements contained in clause 3.0 of Schedule 1:
   1. what is proposed is the construction of one dwelling on the Land, which meets the first requirement under the heading 'Buildings and works' in clause 3.0 of Schedule 1 to the DPO;
   2. the building envelope comprises two building envelopes, one measuring 1,050m2 and the other measuring 300m2, which combined do not exceed the 1,500m2 maximum specified in the second requirement under the heading 'Buildings and works' in clause 3.0 of Schedule 1 to the DPO; and
   3. the buildings and works (excluding dams, fences and access roads) are proposed to be constructed within the specified building envelopes.
9. Further, for the purposes of clause 3.0 of Schedule 1, having regard to the material before me, I find that:
   1. the intended location of the building envelopes in relatively cleared areas has minimised the disturbance to existing native vegetation;
   2. the building materials as proposed will be non-reflective and coloured to suit the surrounding landscape; and
   3. the buildings are designed and sited so as to minimise their visual impact.
10. For the above reasons, I find that the proposal warrants being granted planning permission under the RLZ1, noting that but for the RLI Development Plan issue, there was no dispute about this on the merits.

SHOULD PERMISSION BE GRANTED UNDER CLAUSE 52.17 OF THE SCHEME?

1. Pursuant to clause 52.17-1 of the Scheme, a permit is required to remove, destroy or lop native vegetation, including dead native vegetation.
2. Earlier I addressed the purposes, permit requirements and decision guidelines of clause 52.17 of the Scheme.
3. The Council did not take issue with this aspect of the proposal or with this permission.
4. The applicant provided the NV Report, which identified the following ecological vegetation classes on the Land:
   1. EVC 3: Damp Sands Herb-rich Woodland, which has a bioregional conservation significance of 'vulnerable'; and
   2. EVC 53: Swamp Scrub beside the wetlands in the west of the study area, which has a bioregional conservation significance of 'endangered'.
5. The NV Report was undertaken for an intermediate assessment pathway in accordance with the Guidelines.
6. The proposed dwelling location is largely devoid of native vegetation while the outbuilding location will impact upon largely Melaleuca ericifolia (Swamp Paperbark) trees that are of relatively low quality. The majority of tree impacts are due to greater than 10% encroachment on the Tree Protection Zones of canopy tree species, meaning the tree is deemed lost, although its direct removal will not be required and long-term viability is possible. These six scattered trees are all 'small' canopy trees below the large tree benchmark diameter, and there will also be impacts to eight patches of native vegetation. Three large trees are to be removed, two of which are dead. The NV Report concluded that 0.261 hectares of native vegetation is deemed lost.
7. The NV Report considered that there were no feasible opportunities to further avoid and minimise impacts on native vegetation to be removed.
8. The applicant proposes to purchase a registered credit extract for the offset requirement of 0.060 general habitat units, with a minimum strategic biodiversity score of at least 0.330, which will ensure that the overarching native vegetation policy of 'no net loss' is achieved. Offsets are to be located within the West Gippsland Catchment Management Authority boundary or within the Council municipality.
9. Having regard to the purposes of clause 52.17 and the Guidelines, I am satisfied that the proposal has sought to avoid and minimise vegetation destruction and, through the purchase of the offset credits, will compensate for the removal that will occur, resulting in no net loss to biodiversity as a result of the permit application.
10. As such, I am satisfied that permission should be granted to remove, destroy or lop native vegetation as required for the proposal pursuant to clause 52.17 of the Scheme.
11. Earlier I found that the permission under clause 52.17 of the Scheme was required to meet the requirements of clause 43.04-2 of the Scheme; i.e. the permission was required to be generally in accordance with the RLI Development Plan and to comply with the DPO1. I found that the permission sought under clause 52.17 of the Scheme was generally in accordance with the RLI Development Plan.
12. As to the requirements and conditions contained in clause 3.0 of Schedule 1 to the DPO, I find that there is nothing in clause 3.0 that prevents the removal of native vegetation. I note that one of the conditions/requirements under the 'Buildings and works' heading requires building envelopes to be sited to minimise the disturbance to native vegetation, which I have assessed earlier in my reasons, finding that this has been met.
13. As such, I am satisfied that the proposal complies with the requirements and conditions contained in clause 3.0 of Schedule 1 the DPO.

1. At the conclusion of the hearing, the parties agreed to deal with submissions regarding the without prejudice proposed permit conditions 'on the papers'. To that end, I made procedural orders providing a timeline upon which submissions were to be made, with the last of these further written submissions due by 3 February 2025.
2. The applicant suggested amendments to the Council's without prejudice proposed permit conditions and the Council accepted some of these changes.
3. The conditions that I am directing the planning permit to include by and large comprise agreed permit conditions. I do this because I agree with the content and terms of the agreed proposed permit conditions.
4. To the extent that matters were not agreed and I have either included or not included particular proposed conditions, I make the following comments.
5. I have specified the amount (in hectares) of native vegetation to be removed because this was the figure that was determined by the applicant's native vegetation consultant and is the figure upon which the other calculations (i.e. the quantum of general habitat units) was based, noting that the correct figure is 0.261 hectares.[100]
6. The Council sought to include a condition that 'the offsets secured must provide protection of three large trees'. The Council did so with reference to the Assessor's handbook for applications to remove, destroy or lop native vegetation,[101] which states that if the relevant native vegetation report specifies a requirement to protect large trees, this should be added to the offset requirement.[102]
7. Given the NV Report includes a reference to three large trees in the offset attributes,[103] I have determined to include the Council's suggested reference to the offsets secured including the protection of three large trees.
8. The Council sought to include conditions that replicate the conditions/requirements in clause 3.0 of Schedule 1 to the DPO that are under the headings 'Buildings and works', 'Landscaping' and 'Common property'. This was done on the basis that the Council submits that the DPO1 requires that these be included.
9. Earlier in this decision, I considered the various conditions and requirements in clause 3.0 of Schedule 1 to the DPO, as relevant, in the context of my merits assessment of the proposal.
10. I regard some of the matters contained under the heading 'Buildings and works' in clause 3.0 of Schedule 1 to the DPO to be more in the nature of requirements than conditions and things that must properly be satisfied before a decision is made to grant a permit. For the reasons given earlier, I am satisfied that these requirements have been met by the proposal, enabling the grant of the permit. Notwithstanding that these things have already been assessed, I am prepared to include those matters to ensure that any secondary consent application in the future will have regard to them.
11. I have included the condition entitled 'Landscaping' in clause 3.0 of Schedule 1 to the DPO as I regard this to be a relevant condition for the permission being granted.
12. I have not included the conditions pertaining to 'Common property' in clause 3.0 of Schedule 1 to the DPO because there is no common property existing on the Land or being created as a consequence of the permission being granted.
13. Finally, given the planning permit application was lodged with the Council on 29 September 2023, the requirements of clause 53.03 regarding connection of a dwelling to reticulated gas do not apply,[104] noting that no party contended otherwise.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

Development of a dwelling (including an outbuilding) within 100 metres of a waterway

1. The layout of the site and size, design and location of buildings and works as shown on the endorsed plans must not be altered without the prior written consent of the responsible authority.

Development Plan Overlay Schedule 1 - conditions

1. One house (and ancillary outbuildings) only is permitted on each lot.
2. A building envelope on each lot must not exceed 1500 square metres in area. The location of each building envelope must be to the satisfaction of the responsible authority.
3. Building envelopes must be sited so as to minimise the disturbance to existing native vegetation.
4. All buildings and works (excluding dams, fences and access roads) must be constructed within the specified building envelope.
5. All building materials must be non-reflective and coloured to suit the surrounding landscape.
6. All buildings must be designed and sited so as to minimise their visual impact.

1. Areas outside the designated building envelopes may only be planted with native vegetation, of a species indigenous to the area.

1. All actions and measures identified in the Tree Protection Management Plan prepared by Arborzone February 2024 (TPMP) must be implemented to the satisfaction of the responsible authority unless with the written consent of the responsible authority.

1. Unless with the written consent of the responsible authority, all works and development associated with this permit must be carried out in compliance with the Land Capability Assessment Report prepared by Eco Vision Australia Reference 58FO22 LCA 17 June 2022.

1. Before works start, the permit holder must advise all persons undertaking the vegetation removal or works on site of all relevant permit conditions and associated statutory requirements or approvals.

1. Before works start, the Tree Protection Zones of all patches of native vegetation and scattered trees to be retained on site must be fenced or clearly delineated. Any fence must be erected in accordance with the TPMP, described in condition 9 of this permit. Fences must be constructed of star pickets/chain mesh/or similar to the satisfaction of the Council. Fences or other clear delineation must remain in place until all works are completed to the satisfaction of the Council. Except with the written consent of the Council, within the area of native vegetation to be retained and any tree protection zone associated with the permitted use and/or development, the following is prohibited:

(a) vehicular or pedestrian access;

(b) machine trenching or soil excavation without Project Arborist supervision;

(c) storage or dumping of any soils, materials, equipment, vehicles, machinery or waste products;

(d) entry and exit pits for underground services without Project Arborist supervision;

(e) any other actions or activities that may result in adverse impacts to retained native vegetation without Project Arborist supervision.

1. To offset the removal of 0.261 hectares of native vegetation the permit holder must secure a native vegetation offset, in accordance with the Guidelines for the removal, destruction or lopping of native vegetation (DELWP 2017) as specified below:

1. A general offset of 0.060 general habitat units:

(a) Located within the West Gippsland Catchment Management Authority boundary or Bass Coast Shire Council municipal district.

(b) With a minimum strategic biodiversity score of at least 0.330.

The offsets secured must provide protection of three large trees.

1. Before any native vegetation is removed, evidence that the required offset for the project has been secured must be provided to the satisfaction of Council. This evidence is one or both of the following:

(a) an established first party offset site including a security agreement signed by both parties, and a management plan detailing the 10 year management actions and ongoing management of the site and/or

(b) credit extract(s) allocated to the permit from the Native Vegetation Credit Register.

A copy of the offset evidence will be endorsed by the responsible authority and form part of this permit. Within 30 days of endorsement of the offset evidence by the responsible authority, a copy of the endorsed offset evidence must be provided to the Department of Environment, Land, Water and Planning.

1. No buildings or works shall be constructed on any existing (including implied sewer, drainage, telephone, gas, poser or water) or proposed easement without the further approval in writing of the Responsible Authority and/or the relevant service provider.

1. The use and development must be managed so that the amenity of the area is not detrimentally affected, through the:

(a) transport of materials, goods or commodities to or from the land;

(b) appearance of any building, works or materials;

(c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or otherwise;

(d) presence of vermin.

1. No mud, dirt, sand, soil, clay, stones, oil, grease, scum, litter, chemicals, sediments, gross pollutants, animal waste or domestic waste shall be washed into, allowed to enter or discharged to the stormwater drainage system, receiving waters or surrounding land and road reserves, during the construction works hereby approved to the satisfaction of the Responsible Authority.

(a) The development does not start within 2 years of the issued date of this Permit; or

(b) The development is not completed within 4 years of the issued date of this Permit.

1. In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

[1] The submissions of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Comprised in certificate of title volume 11955 folio 096.

[3] Version 7 signed by the Council delegate on 10 May 2005.

[4] As confirmed by West Gippsland Catchment Management Authority in its letter dated 3 November 2023. In that letter the Authority states that the dams on the Land are not included in the Authority's West Gippsland Wetlands Plan (2007).

[9] Schedule 1 to the RLZ does not specify a distance.

[10] Which includes meeting the requirements of clause 35.03-2 of the Scheme.

[11] The Council confirmed that its environmental health department is satisfied that an appropriate wastewater disposal system can be accommodated on the Land, with that system being subject to a separate approval process.

[12] Clause 1.0 of Schedule 1 to the DPO.

[13] Clause 2.0 of Schedule 1 to the DPO.

[15] Council Delegate Report dated 20 March 2024, pages 14, 15, 17, 18.

[18] As amended by oral submissions made during the hearing in response to questions from the Tribunal.

[19] Executed 23 February 2018 and registered on the Land on 3 April 2018.

[20] Being the date on which Amendment L27 was published in the Victorian Government Gazette.

[21] Amendment L27 Explanatory Report, pages 1-2

[23] I note that the version of Lot 100 that was subdivided through PS437544V aligns with the version of Lot 100 contained in the plan of subdivision that was certified by the Council Delegate on 24 April 1996, rather than the version that was re-certified by the Council Delegate on 20 June 1996 and then registered by the Land Titles Office on 20 October 1997. Again, this inconsistency relates to the lots fronting Ruttle Lane and so, strictly, is not relevant to the Land.

[25] Through the yellow highlighting added by the Tribunal.

[26] Version 3 dated 23 May 2003 but which has not been signed by the Council Delegate.

[27] [2024] VCAT 189.

[28] Submissions on Behalf of Responsible Authority, 14 January 2025, [13.7].

[29] Submissions on Behalf of Responsible Authority, 14 January 2025, [6.8].

[30] [2005] VSC 434.

[31] Submissions on Behalf of Responsible Authority, 14 January 2025, [11.2].

[32] Submissions on Behalf of Responsible Authority, 14 January 2025, [11.14].

[33] [1962] HCA 36.

[34] [2000] VCAT 672.

[35] Submissions on Behalf of Responsible Authority, 14 January 2025, [13.5].

[36] Outline of Submissions on Behalf of Applicant, 14 January 2025, [37].

[37] Outline of Submissions on Behalf of Applicant, 14 January 2025, [10]-[13].

[38] Section 6(1)(a) of the Subdivision Act.

[39] Section 10 of the Subdivision Act.

[40] Section 13 of the Subdivision Act.

[41] Outline of Submissions on Behalf of Applicant, 14 January 2025, [98].

[44] Outline of Submissions on Behalf of Applicant, 14 January 2025, [75]-[76].

[46] [2016] VSC 677.

[47] [2018] VSCA 351.

[48] [2022] VSC 680.

[49] [2004] HCA 59; 220 CLR 472; 211 ALR 588; 79 ALJR 282.

[50] In this respect, the applicant noted the comment of the Supreme Court of Appeal in Khan [117] that is extracted later in these reasons.

[51] Outline of Submissions on Behalf of Applicant, 14 January 2025, [68]-[70].

[52] Outline of Submissions on Behalf of Applicant, 14 January 2025, [88].

[53] Outline of Submissions on Behalf of Applicant, 14 January 2025, [98]-[99].

[56] Such as where there is a material mis-statement or concealment of fact in the application for certification: section 39(3)(a) of the Subdivision Act.

[57] Subdivision Act, section 21.

[58] Subdivision Act, section 27A.

[59] Subdivision Act, sections 30-31A.

[60] Owners Corporation Act 2006 (Vic), section 1(c).

[62] Being section 39(3) of the Subdivision Act.

[63] Notwithstanding that the 2002 Permit allowed the subdivision of 'the land', being 'Lots 102 and 103 on LP437544' into 30 allotments, the area covered by Lots 102 and 103 on PS437544V was not subdivided into 30 allotments. Rather, that area was subdivided into 14 lots: eight lots from Lot 102 on PS437544V and six lots from Lot 103 on PS437544V. Nothing turns on this for present purposes.

[64] Condition 1 of the planning permit in Benedetti.

[65] Condition 2 of the planning permit in Benedetti.

[69] Comprising McHugh ACJ, Hayne J and Heydon J, with Kirby J dissenting.

[70] Where 'development' under the relevant legislation included use, subdivision, buildings, works, demolition and other matters: Hillpalm, [36].

[83] Khan, [117], [120], [122].

[85] Or conditions that must be met prior to something occurring.

[87] For instance, the comments of the High Court of Australia in Hillpalm, [53]-[54].

[89] According to the Council, the then owners of the Albert Ruttle Estate were the Metheralls: Submission on behalf of the Responsible Authority, 14 January 2025, [6.7].

[90] Instrument AQ880386B executed 23 February 2018 and registered on the Land on 3 April 2018.

[92] Noting that the RLI Development Plan is silent on vegetation retention or removal.

[97] Being West Gippsland Catchment Management Authority.

[98] Permit No: WGCMA-W-2023-00111 dated 14 February 2023 but noting that this is expressed to expire two years from the date of issue if the works are not completed.

[99] Licence 112342 dated 26 April 2023 and which will expire 24 months from the date of issue.

[100] As acknowledged and corrected by the Council in its email dated 5 February 2025.

[101] Version 1.1, October 2018, Department of Environment, Land, Water and Planning.

[104] Given the operation of the transitional provision in clause 53.03-5 of the Scheme.