Roads Corporation v Jolimont Heights Pty Ltd and Ors [2002] VSC 500

Supreme Court of Victoria|2002-11-21|Before: Balmford J

PLANNING - appeal from the Victorian Civil and Administrative Tribunal - certification of a plan of subdivision - point not raised below - the plan of subdivision did not comply with the permit condition - appeal allowed Subdivision Act 1988 - sections 3, 5, 6, 8, 9, , , , - , 1962 - section 97(4C) - , ; ;

Proceeding No 6421 of 2002 ("the appeal proceeding") is an appeal pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") against a decision made on 7 June 2002 by the Victorian Civil and Administrative Tribunal ("the Tribunal"). Leave to appeal was granted by this Court pursuant to section 148(1) of the VCAT Act, that grant being conditional upon the appellant Roads Corporation (which in some of the documents is referred to by its trading name "VicRoads") lodging within time an application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 1996. An application was lodged under Order 56 on 8 August 2002 and constitutes proceeding No. 6656 of 2002 ("the Order 56 proceeding"), seeking orders that the decision of the Tribunal be set aside and that the matter be remitted to the Tribunal to be tried according to law. The second respondent ("the Council") did not contest either the application to the Tribunal or the present proceeding.

The proceeding before the Tribunal was an application for review of a refusal by Roads Corporation to consent, pursuant to section 40(1)(b)(i) of the Subdivision Act 1988 ("the Subdivision Act"), to the certification of a plan of subdivision of certain land owned by the first respondent ("Jolimont") in Tootal Road, Dingley ("the subject land"). The formal order of the Tribunal ("the decision") reads:

This Order shall have no force or effect if on or before the 9th of September 2002 the Roads Corporation decides to acquire the land or any specified part of it and communicates that decision to Kingston City Council and the owner of the land, identifying clearly the location of land to be acquired.

In the appeal proceeding the appellant relied on three grounds of appeal, which are set out in [16] below. The Order 56 proceeding raises the same question as the second ground of appeal in the appeal proceeding.

A number of provisions of the Subdivision Act which are relevant to these proceedings are set out below.

(1) In this Act-

. . .

"plan" means . . . or . . . a plan of-

(a) subdivision;

. . .

"plan of subdivision" means a plan showing the subdivision of land;

. . .

"referral authority" means a person or body specified in the planning scheme as a referral authority to which an application for a permit or a plan must be referred, or which must be satisfied that things have been done;

. . .

"subdivision" means the division of land into two or more parts which can be disposed of separately;

. . .

5. The procedure for certification and registration of plans

(1) . . . the subdivision . . . of land, . . . must be done in accordance with this Act.

. . .

(3) A person who wishes to have a plan registered must -

(a) prepare a plan in accordance with this Act and the regulations; and

. . .

(c) submit the plan to the Council for certification together with an application in the prescribed form; and

(d) obtain a statement of compliance from the Council; and

(e) lodge the certified plan at the Office of Titles for registration together with an application in the prescribed form.

(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

. . .

(c) every referral authority has given consent; and

. . .

(2) If the conditions in sub-section (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.

8. When must the Council refer a plan to a referral authority?

(1) The Council must refer a plan to a referral authority within the prescribed time -

(a) if this is required by the planning scheme or the permit, unless -

. . .

(1) The referral authority must inform the Council within the prescribed time that it -

(a) consents to the plan; or

(b) requires specified alterations; or

(c) refuses consent.

(2) If the authority requires specified alterations or refuses consent, it must give written reasons to the Council and the applicant.

(3) If the authority does not reply within the prescribed time or fails to give written reasons, it consents.

. . .

(1) The Registrar may register a plan if -

(a) it appears to the Registrar that the plan has been certified by the Council and the certification remains valid; and

. . .

(1) An applicant may apply to the Victorian Civil and Administrative Tribunal for review of -

(a) a decision of a Council to refuse to -

(i) certify or re-certify a plan; or

. . .

(b) a decision of a referral authority to -

(i) refuse to consent to the certification or amendment of a plan; or

. . .

(4) A reference in sub-section (1) or (2) to a decision to refuse to do a thing includes a reference to a failure to do that thing.

. . .

(6) Without limiting its powers on review, if the Tribunal finds that a Council or referral authority has unreasonably refused or failed to take any action, the Tribunal may order that the Subdivision Action be carried out by another person, wholly or partly, at the cost of the Council or referral authority.

In determining an application under this Act (other than an application under section 39) the Victorian Civil and Administrative Tribunal must -

(a) take into account any relevant planning scheme; and

The significance of these provisions derives from the limitations imposed by such provisions as section 97(4C) of the Transfer of Land Act 1958 and sections 8A and 9AA of the Sale of Land Act 1962 ("the SLA"). Those provisions, speaking very loosely, prohibit dealings in a parcel of land which is not the whole of the land in a certificate of title unless that parcel is a lot on a registered plan of subdivision or one of the several other kinds of parcels described in section 8A of the SLA. Again speaking very loosely, certification of the plan by the relevant municipal authority is a prerequisite to registration by the Registrar of Titles, and registration is a prerequisite to dealing separately with the lots on the plan.

The following provisions of the VCAT Act are also relevant:

(1) In exercising its review jurisdiction in respect of a decision, the Tribunal -

(a) has all the functions of the decision-maker; and

(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and

(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

(2) In determining a proceeding for review of a decision the Tribunal may, by order -

(a) affirm the decision under review; or

(b) vary the decision under review; or

(c) set aside the decision under review and make another decision in substitution for it; or

(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

. . .

(1) At any time, the Tribunal may order that any document in a proceeding be amended.

(2) An order under sub-section (1) may be made on the application of a party or on the Tribunal's own initiative.

The planning scheme

Part of the subject land is within a Public Acquisition Overlay ("the overlay") under clause 45.1 of the Kingston Planning Scheme ("the planning scheme"). The relevant provisions of clause 45.01 are:

To identify land which is proposed to be acquired by a public authority.

To reserve land for a public purpose and to ensure that changes to the use or development of the land do not prejudice the purpose for which the land is to be acquired.

An application must be referred under [Section 55 of the Planning and Environment Act 1987 ("the P & E Act")] to the authority responsible for acquiring the land.

Before deciding on an application . . . the responsible authority must consider, as appropriate, . . . the effect of the proposed use or development on the purpose for which the land is to be acquired as specified in the schedule to this overlay.

The schedule to clause 45 names Roads Corporation as the acquisition authority, and the purpose of the acquisition is named as Roads.

Also relevant to these proceedings is clause 66.01 of the planning scheme, setting out the circumstances in which a plan must be referred to a referral authority for the purpose of section 8 of the Subdivision Act. The only circumstances which would require a referral to Roads Corporation are set out as follows:

For the purpose of Section 8 of [the Subdivision Act] referral of a plan is only required if:

* A referral is required by a permit issued under this scheme. . . .

* A plan creates, varies or removes an easement or restriction likely to be of interest to a referral authority. . . .

* In the opinion of the Council the plan may affect existing sewerage, water, drainage or other works. . . .

On 10 March 1999 Jolimont applied to the Council pursuant to the provisions of the P & E Act for a planning permit to subdivide certain land owned by Jolimont into 42 lots, five of which, namely lots 21 to 25, constituting the subject land, were in the area affected by the overlay. The Council apparently referred that application to Roads Corporation, but there is no evidence before me of such a referral, save for the opening paragraph of a letter dated 6 May 1999 from Roads Corporation to the Council. That letter reads, so far as relevant:

Thank you for your letter dated 31 March requesting VicRoads comment on the above proposed subdivision.

As the design requirements for the connection of Tootal Road to the proposed Dingley freeway are not yet finalised, VicRoads will still require the land set aside in the Planning Scheme.

VicRoads has no objection to the granting of a planning permit for the development and use of the subject property, in accordance with the plans attached to the permit application, if the following condition is included in the permit:

* the eastern boundary of the proposed subdivision be amended to conform with the current planning scheme boundary.

It is possible that some or all of Lots 21 to 25 of the above subdivision could be built once the results of the current investigation into the Dingley Freeway requirements are confirmed.

Permit No. KP99/146 ("the Permit") was issued by the Council on 14 May 1999 allowing:

The Staged Residential Subdivision of this site, in accordance with plans to be submitted pursuant to condition 1 hereof.

The condition required by Roads Corporation which is indicated by a dot point in the preceding paragraph was included in the Permit, being included for some reason as both Condition 1(e) and Condition 15(i). The meaning of that condition is not entirely clear and it was described by the Tribunal as "to all intents and purposes, meaningless". However, Mr Morris, for Roads Corporation, submitted, and Mr Peake, for Jolimont, did not submit otherwise, that the expression "current planning scheme boundary" was intended to refer to the boundary of the overlay. That condition is not referred to again, and it would seem that the notation referred to in the next paragraph replaced it as the expression of the requirements of Roads Corporation.

On 19 May 1999 the Council endorsed plans pursuant to Condition 1 of the Permit. The letter of that date forwarding the plans to Jolimont states that the plans "now form part of the Town Planning Permit". The plans show subdivision of the land in three stages, stage 3 constituting the subject land. A notation on the plans ("the notation") reads:

Stage 3 subject to finalisation of VicRoads road acquisition requirements.

Plans were certified by the Council for stages 1 and 2. On 5 September 2001 Jolimont lodged with the Council for certification a plan in respect of stage 3. By letter dated 24 September 2001 Roads Corporation notified the Council that:

VicRoads notes that the subject Plan of Subdivision, known as Stage 3 of Planning Permit KP99/146, was adopted and endorsed by Council on 19 May 1999. A copy is attached for your information.

Stage 3, comprising Lots 21-25 inclusive, was subject to VicRoads Road Acquisition Requirements being finalised. At present a decision on this matter is yet to be made.

Subsequently [read Consequently], VicRoads does not consent to the certification of the Plan of Subdivision numbered PS 449445F.

On 24 October 2001 the Council wrote to Jolimont in the following terms:

It is advised that Vic Roads [sic] does not consent to the certification of the plan. . . .

The plan is suspended in accordance with the direction and cannot resume until such time as the Vic Roads requirements have been satisfied.

As has already been said, on 21 November 2001 Jolimont applied to the Tribunal pursuant to Section 40(1)(b)(i) of the Subdivision Act for review of the decision of Roads Corporation not to consent to the certification of the plan, and the decision of the Tribunal, in favour of Jolimont, is set out at [2] above.

The Tribunal concluded, after referring to two earlier cases relating respectively to a sand quarry and landfill and an office development:

13. In the case before me there is no proposal for a development such as a sand quarry or landfill or office development. This is an application for review in relation only to the certification of the Stage 3 plan of subdivision. Permit KP99/146 is for subdivision only. The subsequent development of the land in Stage 3 will require planning permission for buildings and works pursuant to the Public Acquisition Overlay. In determining whether or not to grant a permit the responsible authority will be required to consider pursuant to Clause 45.01-3 of the Kingston Planning Scheme the impact of the buildings and works proposed on the purpose for which the land is to be acquired. Certification of the plan of subdivision for Stage 3 per se will not have any effect on the purpose for which the land is to be acquired.

14. I am unable to come to any conclusion about the likelihood of the Dingley Freeway being constructed in the future, or, if it is constructed, whether all or part of the land subject to the Public Acquisition Overlay will be required. However, it is not necessary for me to come to any conclusion about these matters. Certification will not prejudice the purpose for which the land has been reserved and is to be acquired. On orderly planning grounds it is highly desirable that the land which is to be acquired by the Roads Corporation be identified. Also, given the planning history of the land and the efforts of the owners to establish just what land the Roads Corporation intends to acquire, it is my opinion that it is fair for that identification to occur within a reasonably short time frame to avoid potentially unnecessary sterilisation of the land.

15. I have therefore ordered that the subdivision plan for Stage 3 be certified if, after a period of some 3 months, the Roads Corporation has still not decided whether to acquire all or part of the land. If, before the period expires, the Roads Corporation does decide what land it wishes to acquire, then that may result in an amendment to the plan to be certified and my Order will not come into effect. . . . I also note that this may not solve the problem. If at the expiration of the period referred to in my Order the Roads Corporation has not identified the land which it intends to acquire, then presumably the owner of the land will apply for a planning permit pursuant to the Overlay and that matter may also in due course be the subject of review proceedings before this Tribunal.

1. The Tribunal was required to refuse to certify the Plan by reason of Section 6(2) and 6(1)(a) of the Subdivision Act because the Plan did not comply with the requirements of the Permit, in particular the requirement expressed in the notation that Stage 3 of the subdivision not proceed until Roads Corporation's acquisition requirements were finalised.

2. Neither the planning scheme nor the Permit required an application for certification of a plan of subdivision to be referred to the Roads Corporation pursuant to section 8(1)(a) of the Subdivision Act, with the consequences that there could be no application for review before the Tribunal pursuant to section 40(1)(b) of the Subdivision Act and there could be no basis for the Tribunal's orders.

3. It was not open to the Tribunal to find that the certification of the Plan would not prejudice the purpose for which the land had been reserved.

There is a conflict of evidence as to whether ground 1 was raised before the Tribunal. Mr Brahe, who appeared for Roads Corporation before the Tribunal, deposes that it was raised by him, but this is denied in the affidavit of Mr Cicero, who appeared for Jolimont before the Tribunal. The evidence of Mr Cicero is consistent with Mr Brahe's written submission to the Tribunal and with the Tribunal decision, neither of which refers to a submission that certification of the plan is contrary to the Permit. Mr Peake, for Jolimont, submitted that in accordance with authority [1] the Court should adopt the well-established practice of preferring the evidence of the party supporting the decision below, and accordingly should find that that submission was not made before the Tribunal. That being so, it should not be permitted to be raised before the Court on appeal.

As authority for that proposition Mr Peake relied on the judgment of Batt J in City of Greater Geelong v Herd [2] where His Honour found the following often-quoted passage from the judgment of Gibbs CJ and Wilson, Brennan and Dawson JJ in Coulton v Holcombe [3] to be apposite to an appeal on a question of law from a Tribunal:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards.

However, it cannot be said that had the issue now sought to be ventilated been raised before the Tribunal, "evidence could have been given which by any possibility could have prevented the point from succeeding". Evidence of the notation was before the Tribunal, which referred to it in paragraph 5 of its decision. That being so, it is appropriate, particularly given the significance of the point, that it be considered on this appeal, and it is therefore not necessary to determine whether or not the submission was made before the Tribunal.

Mr Morris relied on the provision in sub-section 6(2) of the Subdivision Act to the effect that if the conditions in sub-section 6(1) are not met, the Council must refuse to certify the plan. The relevant condition in sub-section 6(1) was the provision in paragraph 6(1)(a) that the plan must comply with "those requirements of . . . any permit that relate to . . . the form and content of the plan." The notation on the plan as endorsed provided that Stage 3 was "subject to finalisation of VicRoads road acquisition requirements". The notation appeared on the endorsed plan, and the endorsed plan was described by the Council (see [11] above) as forming part of the Permit, so that the notation was a requirement of the Permit, because it indicated that nothing could be done under the Permit until a particular fact existed.

He went on to submit that no mechanism was provided for the consent of Roads Corporation to the certification of the plan; the notation related not to the giving of any consent, but to the existence of a fact. But the evidence before the Tribunal was unequivocal that the road acquisition requirements of Roads Corporation had not been finalised, and thus the fact in question did not exist. Accordingly, he submitted, neither the Council, nor the Tribunal, standing as it did in the shoes of the Council, had any option but to refuse to certify the plan.

Mr Peake submitted that the only requirement in the Permit which related to the conditions set out in section 6(1)(a) was the condition included as Condition 1(e) and 15(1) of the Permit (see [10] and [11] above). Given that the plan was endorsed by the Council on 19 May 1999 (see [12] above), the Court should assume that any amendment to the boundary required by that condition had been made.

In particular, he submitted, the notation was not a requirement of the permit that related to "the form and content of the plan". Mr Morris had not submitted that it fell within any other condition of section 6(1)(a) of the Subdivision Act. The "form and content of the plan" was dealt with in Part 2 of the Subdivision (Procedures) Regulations 2000 ("the Regulations") under the heading "Form and Content of Plans".

However, it is not appropriate, in the interpretation of the Subdivision Act, to rely on legislation subordinate to that Act. Leaving that issue on one side, the notation reads "Stage 3 subject to finalisation of VicRoads road acquisition requirements." That expression seems to me to be intended to relate to the whole content of the plan. Two of the five lots are shown on the plan as abutting directly on a boundary labelled "Proposed acquisition boundary per VicRoads (Feb. 1999)", which marks the limit of an area described as "Balance Lot (Future Road Acquisition)", and it would seem that at the very least there is a risk that the boundaries of those lots will be affected by any change in the "finalisation of VicRoads road acquisition requirements". Section 6(1)(a) specifically provides, in any case, that the plan must comply with those requirements of any permit that relate to the boundaries of lots, and even if that were not so, a requirement of the permit which potentially relates to the boundaries of lots must fall within the phrase "the content of the plan".

Having considered the matter, I accept the submissions of Mr Morris and find on that basis that the Tribunal was required to refuse to certify the plan. Accordingly it is not necessary to consider the remaining grounds of appeal. I await the submissions of counsel as to the orders to be made as a result of this finding.

[1] See for example the judgment of Cussen J in Larkins v Penfold [1906] VicLawRp 90; [1906] VLR 535 at 540

Supreme Court (General Civil Procedure) Rules 1996