Taylors Two Two Seven Pty Ltd v Moreland CC [2011] VCAT 1352

Taylors Two Two Seven Pty Ltd v Moreland CC [2011] VCAT 1352 | Case summary | Zoe

The council takes the view that while some of the further information was provided, not all of the information requested was received to the satisfaction of council within the time specified. As such, the application for permit lapsed. The specific information not provided was the written consent from the relevant beneficiaries to build over the easements.
I do not consider that the written consents of beneficiaries to build over the easements constitutes the sort of information that can be legitimately requested under Section 54 of the Planning and Environment Act 1987. In my view, it was appropriate for the council to request further information about who the beneficiaries were. It would also have been appropriate to request information about whether the beneficiaries consented to building over the easements or, if not, what actions the applicant proposed to address the issue. However, I do not consider that the written consents themselves constitute information.
In fact, the applicant says it has made applications under Clause 52.52 of Moreland Planning Scheme to remove the easements in question. They are applications that need to be resolved prior to or in conjunction with the current proceeding. If the easements are not removed and there is no consent by the beneficiaries to build over them, then that may impact on the ultimate decision which is made regarding this permit application. However, I do not consider that the council needed to have the consents in hand before dealing with the application. It needed to know what was going to happen, but those actions could occur subsequently. As it turns out, the consent of the beneficiaries to building over the easements is not the only option for dealing with the issue of the easements.
The council referred me to the case of Stewart J Castle Pty Ltd v Kingston CC[1], which it said was analogous to the situation in this case. I disagree. In that case, I held that it was reasonably open to the council to make a request for further information of the general type which it made. The applicant did not appeal against the requirement. It simply refused to provide the information. In that case, there was a failure to provide information and the permit application was held to have lapsed.
In the present case, there is no question that information of the general type sought about the beneficiaries and whether they had consented to building over the easements was relevant information to request having regard to the principles relating to the operation of Section 54 set out Caladoukas v Moreland CC[2]. I am satisfied that the information provided by the applicant in its letter of 17 March 2011 responded to the request for further information, but that the request for the actual consents of the beneficaries did not constitute a request for further information.
The council also referred to Section 61(4) of the Act, which provides that the responsible authority must refuse to grant a permit unless a permit has been issued or a decision made to grant a permit to allow the removal or variation of a registered restrictive covenant if the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant. Whilst I agree that a registered restrictive covenant means a restriction within the meaning of the Subdivision Act 1988, I am not persuaded that a registered representative covenant within the requirement of section 61(4) includes an easement. Therefore I do not consider that this particular provision is relevant.
My conclusion is that that there has been no failure to provide further information that was legitimately requested by the council in its request under Section 54 of the Act. Consequently, I find that the permit application has not lapsed and this is a valid application for review under Section 79 of the Planning and Environment Act 1987.

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Taylors Two Two Seven Pty Ltd v Moreland CC [2011] VCAT 1352 (15 July 2011)