Pursuant to section 85(1)(a) of the Planning and Environment Act 1987 we direct that no permit is to issue.

Mr Mark Bartley, solicitor of HWL Ebsworth, lawyers, appeared for Skerdero Pty Ltd. He presented written and oral submissions and called Mr Luke Chamberlain, town planner, as an expert witness. Mr Chamberlain gave oral evidence in the course of which he adopted the contents of a written report.

Mr Jeremy Gobbo QC, barrister, appeared on the instructions of Maddocks, solicitors for the responsible authority. He presented written and oral submissions.

There was no appearance by or on behalf of the Country Fire Authority, Melbourne Water Corporation or the Department of Education & Early Childhood Development.

At the close of the hearing leave was given to the responsible authority to submit a post hearing written submission in relation to certain matters referred to in remarks attached to an interim determination in this case of 3 September 2014. Leave was given for such a submission and a written reply pursuant to orders and directions given in that interim document. Post hearing written submissions have been received from the responsible authority and the applicant company. They have been taken into consideration.

Various documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under section 79 of the Planning and Environment Act 1987 for review of the failure of the responsible authority to grant a permit within the prescribed time.

Urban Growth Zone (Schedule 3) and subject to a Development Contributions Plan Overlay (Schedule 4) under the Cardinia Planning Scheme.

The review site is contained within an almost rectangular parcel of land with a frontage of 143.23 metres to the south side of Princes Highway, a depth on its eastern side of 538.47 metres and an area (according to the Certificate of Title) of 7.917 hectares or (according to statement of the applicant company) 8.097 hectares. The parcel, with its frontage of 143.23 metres to the south side of Princes Highway extends to the south to the alignment of the Melbourne-Sale railway line.

The actual site is located approximately 88 metres south of the Princes Highway and extends further south for 231.34 metres. It is surrounded on three sides by proposed roads likely to be created at a future time. One is Grazier Way which extends south from the Princes Highway as far as the railway line. That road would be on the eastern side of the relevant review site. On the northern boundary of the actual site would be Barbara Avenue, 20 metres wide and located approximately 68 metres south of Princes Highway. That leaves an area of 9279 square metres between Barbara Avenue and Princes Highway.

Pioneer Way is proposed to extend across the southern boundary of the actual review site forming a 'T' intersection with Grazier Way. That leaves a substantial area amounting to about two thirds or 40% of the whole of the land between Pioneer Way and the railway line.

The actual review site, bordered by proposed roads and located approximately 88 metres south of Princes Highway, has a total area of 3.239 hectares.

Lots 1, 2 and 3 on Title Plan 896675C being the land in Certificate of Title Volume 02975 Folio 864.

1. This case concerns an application for a permit for a 48 lot subdivision of land into residential allotments. However, there are legal complications, as will become apparent in these reasons.

1. It is not a simple matter to identify clearly the land to which this case relates. It is part of a substantial tract of land owned by the applicant company, Skerdero Pty Ltd (the company). That substantial tract has a frontage to the south side of the Princes Highway at Officer on the eastern outskirts of the metropolitan area of the metropolis of Melbourne. The land is almost, but not quite, rectangular. The frontage to the south side of the Princes Highway of 143.23m. It has an eastern side boundary of 538.47m.
2. The land is in three allotments, namely lots 1, 2 and 3 on Title Plan 896675C. These lots have areas of 2.88 hectares, 2870m2 and 4.93 hectares respectively giving a total area of 7.998 hectares.
3. However, the company has the land divided up differently on a plan into five different areas marked as stages 1 to 5 inclusive. For the purposes of this case we are concerned with the area of stage 5.
4. Stage 1 occupies the frontage to Princes Highway. It has a depth of 67.61m and an area of 9279m2. It is the subject of an existing planning permit and unit residential development is proceeding on that area.
5. There are several proposed roadways to give access to the rest of the land. The main north south one is proposed to be Grazier Way. It is to run south from Princes Highway on or beside the eastern boundary of the land down to the Melbourne-Sale railway line. Secondary roads are to run east to west from intersections with Grazier Way. The northernmost would be Barbara Avenue, a cul de sac running west from a 'T' intersection with Grazier Way immediately to the south of the stage 1 area. The next east west road is the proposed Pioneer Way running across the land of the company a bit over half the way to the south towards the railway line. It is conceived as an important east west link to have a substantial intersection with Grazier Way. Stage 5, the area with which we are concerned, is located between Barbara Avenue and Pioneer Way.
6. The other proposed east west roads parallel to Pioneer Way are proposed Eliza Terrace, Zoe Lane and Primrose Avenue. They also delineate the areas for stages 2, 3 and 4. Stages 2, 3 and 4 are proposed to be subdivided for residential purposes.
7. The situation so far as the stage 5 area is more complex. It is the area bordered to its north by proposed Barbara Avenue, to its east by proposed Grazier Way and to its south by Pioneer Way. It has a total area of 3.2994 hectares. We will explain, in due course, why the majority of this area is planned to be used for a primary school site. The other facilities conceived of for this area are a neighbourhood convenience centre, (area 2528m2) on the north western corner of the intersection between Grazier Way and Pioneer Way and, immediately to its north, a community centre fronting the western side of Grazier Way and having an area of 4066m2. The primary school site is in the shape of an inverted 'L' with frontages to Barbara Avenue, Grazier Way and Pioneer Way but arranged so as to wrap around the neighbourhood convenience centre and community centre on the corner. The primary school area is 2.58 hectares. The company's application for a permit for a 48 hectare residential subdivision relates to the 2.58 hectare primary school site area.
8. The land is relatively flat and undeveloped and the same can be said for the surrounding area. As will emerge later in these reasons, the site and area is subject to forward planning in relation to the transition of land in this area from rural to urban use and development.

1. All of the land of the company that we have referred to is contained with an Urban Growth Zone under the Cardinia Planning Scheme. It is subject to schedule 3 to the provisions of that zone. It is also subject to a Development Contributions Plan Overlay (schedule 4) under the planning scheme. However, it is the Urban Growth Zone provisions and their schedule that we are concerned with in this case. The overlay provisions are beside the point, so far as present issues are concerned.
2. The zone provisions in relation to the Urban Growth Zone are found in clause 37.07 of the planning scheme. The purposes of the zone include the following:

To manage the transition of non-urban land into urban land in accordance with a precinct structure plan.

To provide for a range of uses and development of land generally in accordance with a precinct structure plan.

To contain urban use and development to areas identified for urban development in a precinct structure plan.

To provide for the continued non-urban use of the land until urban development in accordance with a precinct structure plan occurs.

To ensure that, before a precinct structure plan is applied, the use and development of land does not prejudice the future urban use and development of the land.

1. Such zoning can apply to the land in relation to which there is an existing precinct structure plan or land in relation to which there is no existing precinct structure plan. Its provisions are divided into Part A and B. Part A applies where there is no existing structure plan and it contains the provisions of clauses 37.07-1 to 37.07-8. Part B, on the other hand, applies to land where there is an existing precinct structure plan. It contains the provisions in clauses 37.07-9 to 37.07-16.
2. The land that we are concerned with in this case is subject to an existing precinct structure plan. Accordingly, it is the provisions of Part B of clause 37.07 that apply.
3. That clause also provides:

A precinct structure plan applies to land when the precinct structure plan is incorporated in this scheme.

1. The relevant precinct structure plan is the 'Officer Precinct Structure Plan, September 2011' (the structure plan).
2. Clause 81 of the planning scheme provides that documents listed in the table and the schedule to clause 81.01 are incorporated documents under s 6(2)(j) of the Planning and Environment Act 1987 (PE Act). The structure plan appears in the schedule to clause 81.01. Accordingly, it is an incorporated document in the planning scheme. As such it is part of the planning scheme. The planning scheme is a piece of subordinate legislation. Accordingly, the planning scheme and its incorporated documents, including the structure plan, are part of the law of Victoria.

Part B of clause 37.07 of the Cardinia Planning Scheme

1. In this case we are concerned with a proposal for subdivision of land. Subdivision is a form of development, so far as Victorian planning laws are concerned. Part B contains provisions in relation to the use of land, the construction and carrying out of buildings and works and, in clause 37.07-10, provisions in relation to the subdivision of land.
2. Clause 37.07-10 provides:

A permit is required to subdivide land. Any requirement in the schedule of this zone or the precinct structure plan must be met.

• Be generally in accordance with the precinct structure plan applying for the land.
• Include any conditions or requirement specified in the schedule to this zone or the precinct structure plan.

1. It is clear from this that the relevant schedule to the zone (in this case schedule 3), and the structure plan itself, are of considerable importance. Before giving further consideration to schedule 3 we note briefly some further provisions in Part B of the Urban Growth Zone provisions.
2. Clause 37.07-12 gives some specifications in relation to permit applications, including applications for permits to subdivide land.
3. Clause 37.07-13 provides an exemption, applicable in certain circumstances, from the requirement to give notice of certain permit applications, decisions on such applications and from review rights by objectors and that s 82(1) PE Act. We would not otherwise quote that provision, but it appears to contain an error in expression that we draw attention to. It reads:

An application under clause any provision[1] of this scheme which is generally in accordance with the precinct structure plan applying to the land is exempt from the notice requirements of section 52(1)(a), (b) and (d), the decision requirements of section 64(1), (2) and (3) and the review rights of section 82(1) of the Act, unless the schedule to this zone specifies otherwise.

1. Clause 37.07-14 provides some decision guidelines which, in addition to those in clause 65 of the planning scheme, are to be considered by the responsible authority as appropriate. They include the precinct structure plan applying for the land, including the vision and objectives of the precinct structure plan and any guidelines in the schedule to the zone.
2. We need not refer to clauses 37.07-15 and 37.07-16 for present purposes.
3. However, before leaving clause 37.07 and Part B thereof we emphasise the provision in clause 37.07-10 which provides not only that a permit is required for subdivision and that the requirements of the schedule and the structure plan must be met, but also that a permit granted must be generally in accordance with the precinct structure plan applying to the land.
4. It follows, as a matter of logic, that a permit for subdivision that is not in general accordance with the precinct structure plan cannot be granted. A permit that purports to grant permission for a subdivision that it is not in general accordance with the structure plan cannot legally be granted. There is no power in the responsible authority, or this Tribunal on review, to grant such a permit. A purported grant of such a permit would be ultra vires, that is to say, beyond the power and jurisdiction of the responsible authority or this Tribunal. As such it would be invalid and legally ineffective.

1. What we have said in the forgoing paragraph, however obvious it might be, is a statement of the law. We sit together in relation to the hearing and determination of this case but the presiding member is a legal practitioner whilst the other member is a qualified town planner. The determination of questions of law are the responsibility of the legal practitioner member. He bears the responsibility if error is committed on a question of law but, as it happens, we are in agreement on all points in relation to this case. It is therefore convenient, in these reasons, for us to use the pronoun 'we'.

Schedule 3- 'Officer Precinct Structure Plan (September 2011)- residential area'

1. Schedule 3 contains a heading as quoted in the immediately forgoing subheading of these reasons. Clause 1 of schedule 3 refers to 'The Plan' and says that map 1 shows the future urban structure proposed for the Officer Precinct Structure Plan (September 2011). Map 1 is multicoloured. It depicts the land of the company that we have already referred to. It shows the stage 1, 2, 3 and 4 areas as residential. However, the stage 5 area is depicted in orange. It is part of a larger area of orange extending to the west of the stage 5 area onto the next adjoining land, and the adjoining land further again to the west.
2. The orange part on the company's land also contains the notation 'PS'. The land adjoining to the west has a notation 'PPS'. The land next again to the west has the notation 'SS'.
3. The legend, which forms part of map 1, explains the meaning of various colours and symbols on map 1. Within the legend there is a subheading reading 'Community and Schools'. There are two colour patches under the subheading, one being yellow relating to community facilities and public uses with the other, depicted in orange, referring to 'Educational facilities'. Following that notation there is an explanation in the following terms:

(PS = Primary School, PPS = Post Primary School, PiS = Private School, SS = Special School).

1. We notice that elsewhere on map 1 there are orange areas denoted 'PiS'. We interpret this as meaning that they are proposed for private schools.
2. However, so far as the company's land is concerned, the stage 5 area, being orange and denoted 'PS' is proposed, not to a private school but for a government primary school.
3. The orange area on the adjoining property to the west, denoted with 'PPS' is for a government post primary school and the orange area to the west of that property denoted as 'SS' is for a government special school.
4. We need not go into the question of whether these last two areas could be non government post primary or special schools but it is clear that the orange area on the company's land is for a government primary school as opposed to a private school.
5. In the southwest corner of the stage 5 area on the company's land there is an area of yellow. The legend has that as community facilities and public uses but contains a note reading '(CC = Community Centre)'. The scale and colouring on that one does not enable us to discern 'CC' on the yellow area of the stage 5 area on the company's land. We take it that this is intended as a community centre although it does not matter, for the purpose of these reasons, if we are in error on that point.
6. On that area, or at any rate right in the southeast corner of the stage 5 area, there is a symbol which the legend explains as 'Neighbourhood Convenience Centre (NCC)'.
7. Before leaving map 1 we observe that it was pointed out to us that, immediately to the south of part of the proposed post primary school area and the special school area there is a large green area which the legend explains as open space and environment, indeed public open space and district sports reserves exceeding 8 hectares. The only relevance of this is that the structure plan includes the idea that it is good planning to have schools and such facilities in close proximity to each other.
8. Clause 1 of schedule 2 and map 1 therein indicate proposed 'future urban structure'. Clause 2 is headed 'use and development' and clause 2.1 refers to 'The Land'. It states that:

The use and development provisions specified in this schedule apply to the land shown in Map 2.

1. We do not think it necessary, for present purposes, to detail the applied zone provisions dealt with in table 1 of clause 2.2, but we note that map 2 refers to 'APPLIED ZONES LEGEND'. Like map 1 it is a large scale map. According to the colour coding an area to the south of the post primary school area and the special school area is an area denoted as 'District Park' which is in the same place as the public open space and district sports reserve on map 1 although the boundaries are not quite identical. The difference does not appear to be significant and may be due to the large scale of the maps and/or to their differing purposes.
2. The balance of the two properties to the west, not indicated as district park, appear in pink. The applied zones legend indicates such pink land as 'Residential'. The same pink applies to all of the company's land that we have been referring to from Princes Highway to the railway line including the stage 5 area (which includes the primary school area). About halfway down the eastern boundary, and just within the company's land there is a symbol indicating 'Convenience Centre'.
3. Map 2 is clearly 'broad brush' and containing much less detail, compare to map 1.
4. The company's land, and all the pink land on map 2 appears in table 1 relating to the applied zone provisions to refer to clause 32.08-General Residential Zone.
5. It is not altogether obvious what this means. It may mean something in the nature of what used to be called 'underlying zoning'. In planning schemes relating to periods before the current Victoria Planning Provisions planning schemes some areas were depicted as being subject to reservations, as opposed to zones. For example, land that was or would be required for a public purpose would commonly be subject to such a reservation notwithstanding that it might also have an underlying zoning. The reservation was the effective control although, if it were ultimately decided that the land was not required for such a public purpose or for whatever the purpose of the reservation might be, the underlying zoning might be expected to re-emerge.
6. Whatever be the explanation of the pinkness of the company's land on map 2, it does not supersede the indications on map 1 and, in particular, cannot overrule the actual existing zoning of the land under the planning scheme namely the Urban Growth Zone.
7. Schedule 3 contains other 'Specific provisions' in clauses 2.5 to 2.11, application requirements in clause 3 and certain conditions and requirements for permits in clause 4 whilst clause 5 deals with advertising signs. Although clauses 3.1 and 3.2 in relation to application requirements, and 4.5 in relation to conditions and requirements refer to subdivision proposals, they are not relevant for present purposes.
8. We need to consider the structure plan. This is a complex planning document of 183 pages. Not all of it, by any means, is relevant for present purposes. However, some portions of it are.
9. The advocates who appeared before us showed their diligence in referring us to various portions of the structure plan ranging in importance from vital to marginal or background.
10. The extent and complexity of the document raises a danger where we or others could lose our way and, perhaps, to fail to see the proverbial wood for the trees. Perhaps that should get lost amongst the trees and fail to discern the relevant path through the woods. With a view to avoiding that result we think it convenient to here note the issues in this case.
11. There is a major issue and a minor issue.
12. The major issue arises from the question as to whether the proposed subdivision generally accords with the structure plan. Although we will discuss the point further, it is, in our view, perfectly obvious that the proposal does not accord with the structure plan, either generally, or at all.
13. Indeed, that is common ground between the parties. The company went so far as to call an expert planning witness to give expert evidence of an unusual sort in that it pointed out to us that the proposal in contrary to the structure plan. That means either that we cannot or should not grant a permit and may raise a question as to the appropriate ground for refusal if there is any discretion in the matter.
14. To state the obvious, where the structure plan denotes land as being proposed for a government primary school it is wholly incompatible with the structure plan for that land to be subdivided for residential purposes.
15. There are arguments to be dealt with as to whether the proposal's lack of general accord amounts to a so called 'jurisdictional question' or condition precedent to the exercise of jurisdiction in relation to whether a permit should be granted or not.
16. The secondary issue is whether a provision that appears on page 48 of the structure plan effectively overrules clause 37.07-10 in Part B of the Urban Growth Zone provisions where that clause provides that a subdivision permit 'must: Be generally in accordance with the precinct structure plan applying to the land.'
17. Having thus sought to identify the issues we will now consider relevant portions of the structure plan.

Officer Precinct Structure Plan (September 2011)

1. Part 03 of the structure plan deals with integrated precinct design. Plan 5 on page 25 is identical to map 1 in schedule 3 to the Urban Growth Zone or, if not identical, nevertheless is identical so far as anything relevant to this case is concerned. We have already described the content and import of that map including its designation of the area sought to be subdivided as proposed for a government primary school. We mention it here because it appears in the structure plan itself and because it shows that the proposal not only lacks general accordance with the structure plan, but is directly contradictory of it.
2. Clause 3.2.6 of the structure plan, commencing on page 28, is headed 'To deliver accessible, integrated and adaptable community infrastructure'. It commences with a discussion of 'Community Hubs'. There follows a discussion of the inclusion of community hubs, their purpose and hierarchy in planning. We do not need to go into that in detail but we note that the land we are concerned with is within 'hub D' under the structure plan.
3. Plan 6 on page 30 is headed 'Land Use Budget'. It depicts the area of the primary school, the post primary school and the special school as 'Government Schools' under COMMUNITY FACILITIES. The area at the south east corner of what we have been calling the stage 5 area also depicts community facilities in yellow and business in grey. That is consistent with the depictions on map 5.'
4. The stage 1 area between stage 5 and Princes Highway, along with a strip of similar width right along the southern side of the Princes Highway, is depicted as medium density residential. The same is true of the stage 2, 3 and 4 areas to the rear of stage 5, some adjoining land to the west behind the post primary school and on the adjoining land to the east immediately on the eastern side of the proposed Grazier Way and extending from the Princes Highway south past stage 5 to be opposite stage 2.
5. Clause 4.4.1 on page 88 deals with Community Facility objectives. This shows how it is planned to provide such facilities, including schools, to meet varying needs of the residents as the area becomes populated. The objectives include the provision of government and non-government education and refer to the provision of schools, amongst other services, 'as the population thresholds are reached and funding becomes available'. This clearly indicates that it is dealing with planning for the future, that not all facilities are to be provided immediately and the need for them, as well as the finance to develop them, will be spaced over time reaching into the future.
6. Table 11 in relation to Community facilities and services commences is on page 90. It deals with various hubs including neighbourhood hubs, urban hub D and district hub F. The one of interest for present purposes is urban hub D. In relation to facilities and services it refers to the state post primary school, the state special school and state primary school, specifying land areas and, in relation to the first and third of them (the state post primary school and the state primary school) the authority with the responsibility in relation thereto. In relation to those two the authority is noted as DEECD, in other words the Department of Education and Early Childhood Development (the department).
7. The department has been joined as a party to these proceedings and was given notice of the hearing. However, such joinder was not at its request, but was sought by other existing parties. The department did not appear and was not represented before us.
8. In spite of all this, the department is the relevant authority in relation to whether the primary school site and the post primary school site are or will be required for the public purposes of the respective schools.
9. We are informed that the company and the responsible authority have repeatedly pressed the department for an indication of its intentions and requirements in that respect. No response has been forthcoming.
10. The situation is that the primary school site (and post primary school site) are designated in the structure plan as proposed school sites but without there being any definite indication from the responsible department that they are or will be required for that public purpose. The most that can be said is that they are designated and thus planned for that purpose and that they may ultimately be required for such purposes.
11. Clause 4.4.3 of the structure plan, on page 92, indicates that education facilities should be co-located with children's playgrounds and recreation infrastructure.
12. Clause 4.4.3a, dealing with community facilities delivery on page 95, refers to the importance of community facilities being delivered in an integrated and coordinated manner to maximise early and cost effective provisions. It goes on to say that funding opportunities and partnerships will be sought to support the early provision of community facilities although that passage does not indicate who is to do that seeking of support.
13. The last two parts of the structure plan that we propose to refer to are of some importance in relation to such questions of whether and when the primary school site will be developed and used for that purpose, and even when some indication of the answers to such questions might be forthcoming from the department.
14. Clause 5.1.3 refers to 'State Infrastructure'. It appears on page 152 and reads:

Any projects where the Lead Agency (in Table 20 or 21) is identified as a State Government Department or Agency are subject to funding availability in accordance with State budget processes unless another funding source is identified (for example a Commonwealth grant).

1. The relevant entry in table 20 appears on page 159. There, in relation to the project category 'Education', there is reference to primary school, post primary school and special school all in Hub D in relation to each of which the lead agency is the department.
2. We were referred to these entries on the basis that these are the proposed schools that we have been referring to, including the proposed primary school on the company's land. Indeed, no one disputed this point and we consider that it must be correct notwithstanding that the address in the description of these three Hub D schools is 'Brent Road/Timbertop Boulevard South'.
3. That appears to be the best that could be done at the time of the creation of the structure plan to locate the schools, not only within Hub D but in terms of existing streets. Brent Road exists. It runs south from the Princes Highway to the railway line (and beyond) beside the land adjoining the eastern boundary of the land containing the proposed special school. Timbertop Boulevard South is more ephemeral. Timbertop Boulevard North runs north from the Princes Highway some distance to the east of Brent Road. There is a proposed primary school site adjoining Timbertop Boulevard North located to the north of Princes Highway, however that is not our proposed primary school. Rather it is a primary school in hub A with the address 'Timbertop Boulevard North'. Presuming Timbertop Boulevard South to be a southern extension to the south of Princes Highway our proposed schools are located within the space between it and Brent Road.
4. The point of all this is that table 20 contains a column indicating timing. So far as our proposed schools are concerned (including, of course, the primary school on the company's land) the timing is 2023+. Although the land proposed to be subdivided is designated as proposed government primary school, the time horizon is indefinite with the only indication being approximately 10 years into the future. It may well be that the department has more immediate demands on its time, attention and financial resources. Nevertheless the structure plan does propose that ultimate use of this land. The proposal and the planning involved would be defeated by permission to subdivide it for residential purposes.

1. The company is, of course, aware of the situation. It professes that, if the land is not required, and will not be required, for a primary school it would wish to develop it with the proposed 48 unit lot subdivision.
2. If the land is or will be required for a public purpose, it will accept that situation, but would then look for compensation.
3. It is for this reason that the company and the responsible authority have repeatedly tried to obtain from the department an indication of whether the land is or will be required for the public purpose of a government primary school. In spite of those efforts, no response on that question has been forthcoming.
4. Section 98(2) PE Act provides:

(2) The owner or occupier of any land may claim compensation from a responsible authority for financial loss suffered as the natural, direct and reasonable consequence of a refusal by the responsible authority to grant a permit to use or develop the land on the ground that the land is or will be needed for a public purpose.

1. Of course the responsible authority, though responsible under the planning laws, and though it has other municipal responsibilities, is not responsible for state education or the establishment of state primary schools, much less the financing of them or compensation in relation to them.
2. Responsibility for compensation under this subsection only arises if the responsible authority refuses to grant a permit on the specific ground that it is or will be needed for a public purpose.
3. The position of the responsible authority is that the structure plan, which is part of the planning scheme, designates this site as proposed government primary school but nominates the department as the lead authority. The responsible authority cannot say whether the site is or will be needed for the relevant public purpose. It cannot go beyond saying that it may be needed, which is quite a different thing to saying it is or will be needed.
4. The department, for its part, has not been induced to declare whether or not the land is or will be needed for a primary school. At this stage it may not know. It may be that no decision has been made.
5. The company wants the responsible authority to refuse its permit application on the specific ground that the land is or will be needed for a public purpose. Its submissions, and the expert evidence it called, is aimed at achieving such a refusal, if not from the responsible authority, then from this Tribunal in this review. While it is unusual for a permit applicant to call expert evidence saying that the application should be refused, the expert planner faced up to that proposition. Apparently the real purpose of calling him was to seek to persuade us that, apart from the designation and apart from the land possibly being needed for a public purpose, there is no other planning reason for refusal. It sought to negative the proposition that, if the structure plan did not impose a planning constraint on the site, there is nevertheless some other reason why the permit ought to be refused.

1. It is understandable that the responsible authority declines to issue a refusal on that ground where it does not really know whether the land is or will be needed for public purpose and where it cannot do more than notice that the structure plan proposes that it will be needed. In the meantime, it cannot say more than it may be needed. A refusal on the basis that it may be needed for a public purpose does not satisfy s 98(2).
2. Furthermore, the responsible authority denies that it, or this Tribunal on review, has jurisdictional power to make a refusal on the ground sought. It claims that there is a condition precedent to the exercise of any discretion that it, or the Tribunal, might have to grant or refuse a permit on its planning merits. It submits that, in the absence of jurisdictional power, the Tribunal cannot make such a decision. It argues that there is a so called jurisdictional fact but must be established as a condition precedent to the exercise of a power to make a refusal in the terms sought.

1. This led to a reference to a number of cases by each party in relation to the so called doctrine of jurisdictional fact. However, we do not detect a difference between them as to the effect of the doctrine. It is more a question of whether it applies in the present case.
2. There are certainly instances where something must be established before jurisdiction exists.
3. Furthermore, the Tribunal is created by statute and has only the powers that are granted to it.
4. As the administrative Tribunal, it is obliged to consider, at the outset of a proceeding, whether it has power or jurisdiction to grant what is being sought.
5. In many cases it is obvious and can be 'taken as read' that the power exists. Nevertheless, where there is doubt or question, this is a threshold issue for determination before the Tribunal embarks upon a consideration of the merits of an administrative decision. In this case there is doubt. It demands an examination of the question.
6. We have pointed to, and emphasised, clause 37.07-10 in the zone provisions of the planning scheme relating to this Urban Growth Zone. A permit is required to subdivide land. A permit granted must be generally in accordance with the precinct structure plan applying to the land. The structure plan is such a precinct structure plan and it applies to the land. It is an incorporated document and thus part of the planning scheme.
7. It is common ground that the 48 lot residential subdivision is not in general accordance with the structure plan, indeed it is not in accordance with it at all. It is actually contrary to it. Accordingly the responsible authority, and this Tribunal on review, cannot grant the permit sought. It does not have the power or jurisdiction to do so. It is faced with a legal prohibition on doing so. That amounts to the same thing as saying it has no jurisdiction to do so.
8. An example of this sort of legal bar is found in s 61(4) PE Act.
9. Section 61(4) PE Act reads:

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

1. Prior to the enactment of that subsection it was possible to apply for a planning permit even though the purpose for which the permit was sought would contravene a registered restrictive covenant. Someone with a project that required a planning permission and removal or variation of a restrictive covenant could seek the necessary remedies in any order he or she preferred. With the enactment of this subsection an order of proceeding is imposed. If a project requires the removal or variation of a registered restrictive covenant, that must be attended to first or, at the very least, at the same time as the planning permission is sought (the latter on the basis that the alteration or removal of the covenant will be dealt with first). The subsection imposes a condition precedent in relation to the power of the responsible authority, or this Tribunal on review, to grant a planning permit.
2. In the absence of any registered restrictive covenant there is no problem. If there is a registered restrictive covenant, but the proposal for which planning permission is sought would not contravene it, again there is no problem. However, if the proposal for which planning permission is sought would contravene the registered restrictive covenant there is a legal prohibition that prevents the responsible authority or the Tribunal from granting the planning permit that is being sought. That legal prohibition or bar remains in place unless and until the restrictive covenant is varied or removed so that the proposal for which planning permission is sought will no longer contravene it.
3. Put another way, the absence of a registered restrictive covenant which would be contravened by the planning permit proposal is a condition precedent, or jurisdictional fact that has to be established, before the responsible authority or the Tribunal has power or jurisdiction to entertain and determine the planning permit application.
4. This will be a situation where the Tribunal has to explicitly consider whether it has jurisdiction to deal with the application. It must consider it, to the extent of determining that threshold issue; but if it is faced with a legal prohibition it does not and cannot proceed to an adjudication on the planning application. It does not, in those circumstances, exercise the discretion that the planning scheme and planning laws might otherwise give it to determine the planning application on its planning merits. The question of the planning merits of the proposal has yet to arise, and may never arise, if the condition precedent cannot be satisfied.
5. In the registered restrictive covenant situation the Tribunal must determine whether there is a 7 - 9 Cowra Street, BRIGHTON EAST and whether the proposal would contravene it. If the answer to both questions is yes, there is no jurisdiction. The Tribunal does not have power to consider the planning merits of the proposal or to exercise the discretion otherwise vested in it for that purpose.
6. It will sometimes, perhaps often, be necessary to determine a question of fact (as opposed to a question of law) as a first step. Such a question of fact and degree may, in some cases, be difficult and uncertain and a matter upon which reasonable views could vary. In that respect it is somewhat similar to the sort of assessment of a question of fact and degree that can arise in relation to the characterisation of a proposed use, and as was discussed in the well known High Court case of Shire of Perth v O'Keefe[2].
7. Where it is necessary, for this preliminary step, to determine such a question of fact and degree; then it must be determined whether the answer is obvious or doubtful. In this present case that we are now considering if there is such a question. That question is whether the proposal for which planning permission is sought is in general accordance with the structure plan. In this instance the answer is abundantly obvious. It is not in accord in at all.
8. In the s 61(4) example, if it be determined that there is a registered restrictive covenant and that the planning permit proposal would contravene it; it follows, as a matter of law, that there is no jurisdiction while that situation persists.
9. We have already observed that it is a threshold question for an administrative tribunal created under statute to determine whether it has jurisdiction to deal with an administrative proceeding brought before it. The first stage of doing so can contain two elements; the first being any necessary question of fact and degree and the second a legal ruling, if it be the case, that there is no jurisdiction. In those circumstances the tribunal does not then consider the merits at the administrative proceeding.
10. On the other hand, if there is jurisdiction, including a situation where any conditions precedent or matters of jurisdictional fact are satisfied, then the Tribunal can proceed to a consideration of and a determination on the merits of the proceedings.
11. In argument before us the representative of the company suggested that these three questions can be jumbled into one and that, provided the Tribunal has jurisdiction to consider whether it has jurisdiction it is thereby enabled to determine all questions, including making a determination on the merits of the proposal. We are satisfied that this approach is incorrect. Even though the Tribunal may have power and a duty to consider questions of fact and degree in determining whether there is jurisdiction, that does not mean that it necessarily has jurisdiction to proceed then to determine other questions that may be of fact and degree in relation to the merits of a proposal.
12. There are other situations in which the Tribunal lacks jurisdiction. For example, the table of cases that typically appears early in a set of planning scheme zone provisions has three sections. We realise that a table of uses relates to the prohibition or regulation of land use as opposed to development. We also realise that subdivision, under Victorian planning laws, is a variety of development rather than land use. Nevertheless, reference to the table of uses is a familiar and convenient reference point to illustrate to position.
13. Such a table contains a section 1 in which are listed those land uses for which planning permission is not required. Section 3 lists those land uses which, in the particular zone, are prohibited. Section 2 contains a list of land uses which are permissible. They are prohibited unless and until a valid planning permit is granted giving permission for such use.
14. Of these three categories it is only those land uses listed in section 2 that can be the subject of a planning permit and in relation to which the responsible authority, or the Tribunal on review, has jurisdiction to make a discretionary decision on the planning merits of the proposals. In relation to an application for permission for such a use the Tribunal might refuse to grant a permit or it might grant one, and if it grants one then it determines such conditions (if any) as it sees fit to impose upon that permission.
15. Land uses listed in section 3 of the table are prohibited. The responsible authority or the Tribunal has no power (no jurisdiction) to consider, exercise a planning judgement or discretion to grant permission for such a use, even if an application for such a permit comes before it. It has power only to consider it for the purpose of determining whether it has jurisdiction. When it is realised that the use for which permission is sought is prohibited, then the application must be refused, not on grounds of planning merit, but because of the legal prohibition.
16. Actually the same situation applies in relation to a section 1 use. There is neither power nor occasion to entertain the planning merit of a permit application that seeks permission for a section 1 use. There is no power to grant such a permit. A permit application that purports to raise such a question does not create jurisdiction to do any more than is the situation in relation to a section 3 land use, that is to determine that there is no jurisdiction as a matter of law.
17. Where, as a matter of law, there is no jurisdiction, it is beside the point to argue that it would be just in the circumstances if there was jurisdiction and to further argue that it would be just if the absent discretion was to be exercised in a particular way. The arguments advanced on behalf of the company to the contrary are rejected.
18. It was also suggested in argument that the suggested injustice of the company being left with land in limbo for an extended period which it cannot develop or use its land except for something like grazing, and where effectively which no one will want to buy from it; should affect the interpretation of the relevant provisions. This too is incorrect. It is not for the Tribunal, a court, or anybody else to depart from a correct impartial legal interpretation of statutory provisions because the result might arguably be unfair.
19. In the present case there is a threshold question of fact and degree as to whether the proposed subdivision is in general accordance with the structure plan. The answer is obvious. It is not.
20. It follows from that, in accordance with clause 37.07-10 that the planning permit for the subdivision that is sought cannot be granted. It cannot be granted because there is no jurisdiction to grant it. The Tribunal is legally prohibited from granting it. That is an end of the matter. The Tribunal cannot go on to determine the merits of the matter or to make a discretionary decision that would otherwise be open to it. It cannot refuse the application on the basis that the proposed lots are too big or too small or that the land is or will be required for a public purpose.
21. Even if we could proceed that far, we are not in a position to determine that the land is or will be needed for a public purpose. We can only go so far as to say that it may be needed for such a purpose at some time in the future, a time that we are unable to determine. It may be needed, but that is another matter. We have no means of compelling the department to declare its hand in that respect.
22. We said earlier that it appeared that the parties to this case, though they referred to some extent to different authorities, there is really no dispute as to the effect of the doctrine of judicial fact. However, we note that the case of Coles Property Group Developments Limited v Boroondara CC[3] was referred to on behalf of the company. That seems a little surprising in as much as that case hardly supports the position adopted by the company, but rather supports the view taken by the responsible authority.
23. The case involved a proposal to amend an existing planning permit. The Tribunal determined that, as a matter of law, it had no power to grant an amendment that amounted to a transformation of the permission granted in the original permit. Such an approach accords with the Supreme Court decision in Addicoat v Fox (No.2)[4]. That case was determined prior to amendments to planning legislation that have given the Tribunal extensive powers to adjourn, amend, give notice and award costs in relation to proceeding before it. Indeed it may well be partly as a result but that decision that those amendments were made. We do not wish to enter, for present purpose, on whether an amendment that amounts to a transformation could be considered and granted, subject to the exercise of those powers. Even if there is power to consider a transforming amendment, subject to the exercise of such powers of amendment, notice etc, that does not mean that it would be convenient, expedient or appropriate to do so in the circumstances of a particular case. It just means that an application for a transforming amendment might be refused as a matter of discretion on such grounds, rather than because there is or may be a legal prohibition.
24. Be that as it may, the Tribunal certainly proceeded in Coles case on the basis that it did not have jurisdiction to entertain and determine upon a permit amendment that amounted to a transformation. It held, in effect, that it lacked power or jurisdiction to do that. In that respect it is in accordance with other cases cited in relation to jurisdictional fact and it is also in accordance with the approach that we have taken in this case.
25. For the above reasons we are of the view that we lack jurisdiction to entertain the merits of this proposed subdivision permit application or to determine it on its planning merits. Because of the lack of accord with the structure plan as it stands we do not have power to grant or refuse the proposal on the grounds that the land is or will be needed for a public purpose or for any other ground of planning merit. We only have power to consider whether we have jurisdiction and to refuse on the ground that we do not have such jurisdiction.
26. If we did have jurisdiction we would lack a basis for determining that this land is or will be required for a public purpose. All we would have been able to say is that it may be required for such a purpose. However, because of the lack of jurisdiction that question does not even arise.

1. The secondary issue in this case concerns some text that appears on page 48 of the structure plan. It is within part 4.2 dealing with housing. Halfway down page 48 there is a subheading 'Subdivision and Use of Land'. The third item down is denoted in an 'Issues' column as 'School sites (development for residential purposes)'. The adjacent text reads:

Where land shown as a school on Plan 5 is proposed to be developed for residential purposes, the density of housing on the land is to be determined in the context of:

• adjoining land use column including:
  • proximity to a designated Neighbourhood Convenience Centre;
  • proximity to a local park of 8000 square metres or more.
• Housing densities identified for adjacent sites (refer Plan 8) or established through subdivision of adjacent sites.

1. We have already referred to plan 5 as being identical or identical so far as relevant to map 1 in clause 1 of schedule 3 to the Urban Growth Zone provisions.
2. We have not mentioned plan 8 from the structure plan although it is similar to plan 6 that we have mentioned, so far as the company's land and locality is concerned. It depicts the land along the southern side of Princes Highway, including the northern portion of the company's land where it fronts that road, as being for medium density residential development. It also shows similar depiction for the south part of the company's land being the areas for stages 2, 3 and 4, and adjacent land to the west as being for medium density housing. Furthermore, a similar indication applied to land immediately to the east and extending south as far as stage 2 land on the company's property.
3. This passage (the page 48 proposition) appears to contemplate the possibility, at least in some circumstances, of residential subdivision of land designated in the structure plan as being designated for a proposed school. The drafting of the provision is less than satisfactory. It takes no account of clause 37.07-10 which requires general accordance with the structure plan. It cannot overrule that provision.
4. The difficulty is that it seems to be in potential conflict with other parts of the structure plan and in particular the repeated designation of the central portion of the company's land as being for a proposed state primary school. The drafting does not say something like 'notwithstanding what is depicted in plan 5' (and whatever other provisions indicate use of the relevant portion of the company's land for school); nevertheless this land can be used for residential purposes. There is nothing in the zone provisions creating exceptions in favour of housing on account of the page 48 provision. There is no indication as to the circumstances in which land designated for a proposed school could be used for residential purposes or what procedures might be necessary.
5. The company's advocate suggests that this particular little provision should override clause 37.07-10 and the whole structure of precinct structure planning and that it should be read as if it contains some proposition as 'notwithstanding other provisions in the planning scheme or the structure plan to the contrary'. The page 48 proposition contains no such qualification and nothing of the sort should, in our view, be read into it. Although a particular provision might in some circumstances be preferred to a general one, here the company's submission calls for effectively overruling, not only provisions in the planning scheme and other provisions in the structure plan, but the whole scheme of structure plan planning and that without specific words directing that course to be followed.
6. If something must be read down, we consider that it must be the carelessly worded page 48 provision. We take it that if it finally emerges that the land indicated for proposed state primary school ultimately turns out not to be required for that purpose and in circumstances where it can be said that it will not be required for that purpose; there would apparently be no reason then why the land could not and should not be used for other purposes such as a residential purpose. We can accept the page 48 proposition as a fallback to apply in such circumstances.
7. The page 48 provision concerns housing density in relation to land proposed for a state primary school being used for housing. If it was to be read as meaning that the density provision would apply if it should ultimately become clear that the land is not and will not be required for such a school, then it would fit appropriately, indeed usefully, into the structure plan.
8. In the meantime, and for the reasons already given, we do not consider that there is jurisdiction to consider and determine the merits of the proposal contained in this subdivision permit application, and we do not consider that the page 48 proposition alters that situation.

1. For the above reasons we will direct, pursuant to s 85(1)(a) PE Act that no permit issue, not on the basis of a planning merits decision that the subdivision is inappropriate, but on the basis that there is no jurisdiction to determine the matter.

[2] [1964] HCA 37; (1964) 110 CLR 529; 10 LGRA 147; [1965] ALR 70; (1964) 38 ALJR 82

[3] [2014] VCAT 342.

[4] [1979] VicRp 37; [1979] VR 347.