Victorian Civil and Administrative Tribunal|2002-11-26

Trethowan v Mornington Peninsula SC & Ors [2002] VCAT 1377 (26 November 2002)

PLANNING AND ENVIRONMENT LIST Tribunal No. P000916/2002

Planning; Planning and Environment List; questions of law; Subdivision; public open space contribution; Clause 52.01 Mornington Planning Scheme; statutory interpretation; options of contributions in cash, land, combination of cash and land; who chooses which option?; Responsible Authority can choose whether land, cash or combination; on review the Tribunal has the same choice; applicant cannot impose applicant's choice; Responsible Authority in choosing land can nominate which land; history of legislation in relation to public open space contributions; interrelationship and operation of Clause 52.01 and s 18 Subdivision Act resolved and explained.

Planning permits; permit conditions; validity of permit conditions; tests for validity of permit conditions; consistency with the law; invalidity due to repugnance to the law.

s 35(a) Interpretation of Legislation Act; purposive approach; purpose or object of statutory provision; situation where one interpretation promotes purpose or object and another does not; situation where two interpretations both promote object or purpose, but to differing extents; applicability of common law rules of statutory interpretation if situation not covered by s 35(a) Interpretation of Legislation Act.

s 35(a) Interpretation of Legislation Act.

Chugg v Pacific Dunlop (1990) 95 ALR 481.

Cooper Brookes (Wollongong) Pty Ltd v SCT [1981] 35 ALR 155 at 169-70.

Federal Commissioner of Taxation v Smorgan 16 LR 721.

Gishen v City of Broadmeadows [1966] VR 82.

Oppe & Ors v Shire of Lillydale [1980] VicRp 37; [1980] VR 387.

Christian Brothers (Vic) Pty Ltd v Banyule CC [2001] 9 VRP 128.

Rosemeier v City of Greater Geelong (No. 1) [1997] 28 AATR 86.

APPLICANTS FOR REVIEW : Joseph Charles Trethowan and

RESPONSIBLE AUTHORITY: Mornington Peninsula Shire Council

MEDIUM NEUTRAL CITATION: [2002] VCAT 1377

1. Clause 52.01 of the Mornington Planning Scheme does empower the Responsible Authority, and on review this Tribunal, to require the public open space contribution under that clause to be provided in the form of land rather than cash.

2. The proper interpretation of Clause 52.01 of the planning scheme and its schedule does not allow the permit applicant to elect whether such contribution is to be made by way of land or alternatively by money or alternatively by a combination of land and money.

Ms M. Quigley, barrister, appeared on the instructions of the firm of Deacons, solicitors, for the Responsible Authority.

Mr N J Tweedie, barrister, appeared on the instructions of his clients for the Applicants for Review.

The following Respondent/Objectors appeared in person namely Mr Murray Chisholm, Ms Bronwyn Bain and Mr A J Gorman.

Mrs A Moon, solicitor of the firm of Baker & McKenzie, solicitors appeared for Mrs Georgina McSweeney, objector. After referring to a written submission dated 2 October 2002 submitted by post, she excused herself and departed.

The Respondent/Objectors were heard orally whilst Ms Quigley and Mr Tweedie presented written and oral submissions.

Application under s.77 of the Planning and Environment Act 1987 (PE Act) to review a decision to refuse to grant a permit.

Residential 1 Zone and subject to a Design and Development Overlay Schedule 3 and a Vegetation Protection Overlay Schedule 1 under the Mornington Peninsula Planning Scheme.

1. The proposal is not generally in accordance with the Outline Development Plan for the site and surrounding area.

2. The proposal is not consistent with the reasonable expectations of residents in the surrounding area.

3. The proposal does not satisfactorily meet the Outline Development Plan for the subdivision of the area.

4. The proposal does not provide for a suitable connection of pathway connection from Ferne Place to Lempriere Avenue.

5. The proposal does not provide a suitable public open space provision for the subdivision.

6. The proposal is inconsistent with the following elements of VicCode:

1. The proposal is an outcome consistent with the State and Local Planning Policy Frameworks.

2. There is no Outline Development Plan for the site and surrounding area embodied in the Planning Scheme or otherwise of statutory or strategic relevance.

3. The proposal is consistent with any reasonable expectation based on the statutory planning provisions and policies embodied in the Planning Scheme.

4. The subject land is not subject to a Design and Development Overlay, a Development Plan Overlay or Incorporated Plan Overlay and there is accordingly no Planning Scheme Outline Development Plan for subdivision of the area.

5. There is no requirement for connection of Ferne Place and Lempriere Avenue and such a connection would cause detriment to the amenity of the neighbourhood.

6. Public open space was provided in respect of the subject land at the time of the earlier subdivision.

7. The proposal is consistent with the provisions of VicCode 1.

1. This case concerns an application for a permit for a four lot residential subdivision in Mount Martha. After consideration of the application and objections the Responsible Authority determined to refuse to grant a permit on the grounds set out above. The permit applicants then applied to this Tribunal for a review of that refusal.

2. The hearing of the review was fixed to commence on the 9 September 2002 before my colleague Ms Margaret Baird, Member. The hearing proceeded on the 9 and 10 September 2002.

3. In the course of the hearing an issue arose in relation to the question of a contribution for public open space purposes in relation to the proposed permit.

4. It is common ground between the applicants and the Responsible Authority that such a contribution is required in relation to this proposed subdivision. However, there is a dispute between them as to the form in which this contribution should be made. The permit applicants wished to make a cash contribution, and they do not wish to make a contribution in the form of land. The Responsible Authority, on the other hand, does not wish to accept cash. On the contrary, it seeks the contribution in the form of land to be part of the land involved in the subdivision. In fact it seeks particular area of that land to become part of, or an extension to, an existing linear open space area on adjoining land and in the vicinity.

5. I am informed that, toward the end of the hearing on the 10 September 2002, Mr Tweedie made a submission in relation to the effect of Clause 52.01 of the Mornington Planning Scheme. That clause indicates that such contributions can be in the form of land, or cash, or a combination of cash and land. It was, and is, Mr Tweedie's contention that the choice as to which of these options is to apply legally resides with the permit applicant and that the Responsible Authority must accept whatever choice, in this respect, the permit applicant might be pleased to make. In this particular case, he argues, the Responsible Authority is obliged to accept cash and cannot require the contribution to be in the form of land.

6. This clearly is a legal question. Ms Baird is a planner, but she is not legally qualified. She could only determine such a legal question with the consent of the parties. Such consent was withheld by Mr Tweedie on behalf of his clients. This resulted in a need for the legal question involved to be determined by a member with legal qualifications.

7. The hearing before Ms Baird has been adjourned part-heard. Arrangements were made, in the meantime, for the hearing on the 17 October 2002 and for me to hear argument in relation to the legal question for the purpose of considering and ultimately deciding it. I am a member who is legally qualified.

8. There is probably really only one legal question involved here, although it has been formulated as two propositions. These were agreed to be as follows:-

(i) Whether Clause 52.01 of the Mornington Peninsula Planning Scheme empowers the Responsible Authority (and on review this Tribunal) to require that the public open space contribution under that clause is to be provided in the form of land rather than cash.

(ii) Whether the proper interpretation of Clause 52.01 of the planning scheme and the Schedule thereto allows the permit applicant to elect whether such contribution is to be made by way of land, or alternatively by money or alternatively by a combination of land and money.

I was not presented with a written formulation of the question or questions. The questions were clarified in the course of the hearing. The above formulation was not settled word by word. Nevertheless it is the basis of what I am to decide and the basis of the hearing conducted on the 17 May 2002.

9. The question of contributions for the provision of public open space has a long history in Victoria planning law and local government. It goes back well before the current Planning and Environment Act (PE Act), the current Local Government Act (LG Act), the Subdivision Act 1988 (SD Act) and the current planning scheme. The principle involved is that the subdivision of land for residential, commercial or industrial purposes can increase the intensity of the use of the land and thereby increase the need for areas of open space for resort and recreation by the increased population occasioned by the subdivision. If the subdivision causes such an increase in need for public open space, then it is appropriate that there should be a contribution required as part of the subdivision process to meet the need thus created.

10. Before the SD Act was passed the law and procedures in relation to the subdivision of land (except for their town planning aspects) were contained in the Local Government Act 1958 (LG Act 1958). Apart from Local Government Act (and subsequently SD Act) the process of subdivision is regarded as a development of land for the purposes of planning law. Traditionally subdivision, or at least some subdivisions, have required planning permission under the planning legislation. Planning schemes under the Town and Country Planning Act 1961, and subsequently under the current PE Act, frequently required the obtaining of a planning permit for a subdivision.

11. Under the LG Act 1958 there were provisions whereby a plan of subdivision was required to be sealed by the council of the relevant municipality. A subdivision could not be lodged with the Titles Office for registration unless it had been so sealed. The council was not to seal a plan of subdivision until certain requirements were satisfied. It could include a requirement, in relation to the subdivision of industrial, commercial or residential land, for a public open space contribution. There was a limitation in that the requirement. It could not be for more than 5% of the land to be subdivided or a cash contribution equal to not more than 5% of a site value of such land. There was also provision for a requirement of a mixture of land and cash subject to equivalent limitations.

12. It was the council's option as to whether it imposed such a requirement where the preconditions were satisfied, and it had further discretions as to whether it would require the contribution to be in the form of land, cash or a combination. Further again the council had a discretion as to whether the contribution would be for the maximum allowable of 5% of the land or site value, or for some lesser proportion. Finally it has an effective discretion as to what land (up to 5%) it will take if it choses to require land rather than cash. There was provision for appeals in relation to these questions.

13. The procedure was that a subdivider, seeking the sealing of a plan of subdivision, could appeal against the failure or refusal of a Council to seal the plan. Such appeals were at one stage to a Magistrates' Court and subsequently to local government referees. Later again the appeal was to the Planning Appeals Board, predecessor of the Planning and Environment List of this present Tribunal. The procedure has evolved into the seeking of certification of a plan of subdivision (rather than sealing) under the SD Act with the appeals being to the Planning Division of the Administrative Appeals Tribunal and ultimately to the Planning and Environment List of this Tribunal.

14. Going back to the LG Act 1958, the Council could defend such an appeal on the basis that requirements specified in the LG Act have not been satisfied. This could raise the question as to whether the requirement for public open space contribution is justified at all, and if so whether the amount required was appropriate in the circumstances.

15. Such requirements under the LG Act 1958 were normally made initially in a letter from the council to the subdivider.

16. This procedure, under the LG Act 1958, was not the only means by which such contribution could be required. If the subdivision required planning permission under an applicable planning scheme, then a requirement might be imposed in the form of a condition on the planning permit. (There was yet another means of imposing a requirement, but I need not go into that here). Of course, a contribution in relation to a particular subdivision could not be required more than once. Nevertheless, such a condition clearly satisfied the normal tests for the validity of a planning permit condition. There are a number of well-known authorities in relation to the tests for planning permit validity. I do not propose to discuss them here. I did discuss them at some length in my decision in Rosemeir v City of Greater Geelong (No. 1) [1997] 28 AATR 86. These tests are frequently expressed in terms of the condition needing to relate to the permission being granted and to its being directed to the achievement of a planning purpose, or that it should, at any rate, have that effect.

17. Such a condition on a planning permit for a subdivision would clearly relate to the permission being granted and to recognised planning purposes. It has long been recognised that good planning will require the provision of suitable areas of open space for resort and recreation by people residing or frequenting areas where they live or work or have occasion to be.

18. As with the requirement under the LG Act, a requirement imposed by way of planning permit condition was done at the option of, and in the exercise of discretion by, the Responsible Authority granting the permit. Such Responsible Authority was frequently the council of the relevant municipality. It could decide not to impose a requirement. If it did impose a requirement it would decide its form and amount, subject to such limits as the law imposed. Here again there was an appeal for the dissatisfied permit applicant. It was a planning appeal to the Town Planning Appeals Tribunal, subsequently the Planning Appeals Board, and then the Planning Division of the Administrative Appeals Tribunal, and ultimately now to the Planning and Environment List of this Tribunal.

19. In due course the subdivision provisions of the LG Act 1958 were replaced by the now current SD Act and the Town and Country Planning Act 1961 was replaced with the now current PE Act.

20. The current statutory provision applicable in this present case is Clause 52.01 of the Mornington Planning Scheme. Under a subheading "PUBLIC OPEN SPACE CONTRIBUTION AND SUBDIVISION" the following appears:-

A person who proposes to subdivide land must make a contribution to the council for public open space in an amount specified in the schedule to this clause (being a percentage of the land intended to be used for residential, industrial or commercial purposes, or a percentage of the site value of such land, or a combination of both). If no amount is specified, a contribution for public open space may still be required under Section 18 of the Subdivision Act 1988.

The clause goes on to provide for exemption from public open space contribution for a limited and relatively unusual category of subdivisions.

21. It can be seen from the paragraph quoted above that Clause 52.01 is to apply where specified in the schedule to that clause, but that s. 18 SD Act will apply in default, if there is no such specification.

22. The Clause 52.01 requirement, where it does apply, is mandatory. In such circumstances a contribution must be made. Unlike the previous provisions I have referred to, and unlike the current s 18 SD Act, it is not a matter of choice at the option of the Responsible Authority as to whether or not a requirement will be made.

23. Another thing to be noticed is that this provision preserves the possibility of the contribution being made as a percentage of the land or as a percentage of the site value of the land or as a combination of the two.

24. For the purpose of contrast I now set out the terms of s. 18(1), the equivalent provision and the one that applies if Clause 52.01 does not. Under a subheading "Council may require public open space" it reads:-

18.(1) If a requirement for public open space is not specified in the planning scheme, a Council, acting as a responsible authority or a referral authority under the Planning and Environment Act 1987 may require the applicant who proposes to create any additional separately disposable parcel of land by a plan of subdivision to -

a) set aside on the plan, for public open space, in a location satisfactory to the Council, a percentage of all of the land in the subdivision intended to be used for residential, industrial or commercial purposes, being a percentage set by the Council not exceeding 5 per cent; or

b) pay or agree to pay to the Council a percentage of the site value of all of the land in the subdivision intended to be used for residential, industrial or commercial purposes, being a percentage set by the Council not exceeding 5 per cent; or

c) do a combination of (a) and (b) so that the total of the percentages required under (a) and (b) does not exceed 5 per cent of the site value of all the land in the subdivision.

25. Section 18(1A) goes on to provide that the council can only impose a public open space requirement under the SD Act if it considers that there will be a need for more open space having regard to several specified considerations. Section 20 provides that the Council must use any land so acquired for the purpose of public open space and that any cash received must be used to buy land for public recreation or resort, or to improve land already set aside for such purposes.

26. The SD Act provisions clearly preserve the discretion in the council to decide whether a requirement will be imposed, the form of the requirement as to land, cash or combination, and if land, which land.

27. By contrast, Clause 52.01 removes the discretion as to whether there will be a contribution by making it mandatory. Furthermore, it does not spell out in words who has the choice as to whether the contribution will be in land or cash or a combination, and it does not spell out in words who can say which land is to be contributed if the contribution is to be made in that form.

28. Mr Tweedie, in arguing that the options rest with his client, relies on the wording of Clause 52.01 as it stands, and also on its contrast with the wording of Clause 18 SD Act.

29. His argument has an initial and superficial appeal. If Clause 52.01 stood alone, and out of its context, and bearing in mind that it imposes a mandatory requirement and then seems to offer at least three means of meeting the mandatory requirement, it does appear to leave an option to the applicant. Ordinarily a provision that requires something to be done but specifies more than one way in which it may be done, leaves a choice to the person deciding to do that thing. If a statutory provision requires someone to travel from Melbourne to Mordialloc and specifies that the traveller may go by the Beach Road or by the Nepean Highway, this would normally be read as giving the traveller a choice between those two routes. She (assuming femininity) could not go by any third or fourth route, but she would not commit an offence or contravene the requirement provided she travelled by one or other of the two specified routes. Effectively Mr Tweedie argues that the same approach is applicable here. His clients have to make an open space contribution. It can be by land, cash or combination. The provision should be read as giving them the choice between these three options. Actually there are more than three options because the proportions of a combination is a variable. Insofar as his clients might elect to provide land, his argument further provides that his clients can elect which 5% of the land will be given. Presumably, on his argument, his clients could chose to give 5% of the land in a number of little bits. For the purpose of this argument he points to the lack of specification in Clause 52.01 as to who may choose, as contrasted with the specification in s 18 SD Act.

30. He conceded that it would be wiser or better, from the point of view of the public interest involved, if the statutory provision made it clear as to who had these choices, and even if it gave those choices clearly to the Council. His point, however, is that the statutory provision does not, in its current form, do this. According to him, it bestows those choices on his clients, and unless and until there is an amendment, his clients are legally able to exercise those choices as they chose.

31. This argument rather overlooks the purposes and policies behind provisions like Clause 52.01 and s 18 SD Act. Whether explicit or implicit, I think the policy behind such provisions is clear enough. It is in the interests of good planning, and in the public interest, that provision should be made for public open space for recreational purposes when subdivision increases the demand and need for such facilities. It is destructive of such policies if the choice of mode of contribution, and the location of land where it is the form of contribution, is transferred into the discretion of the subdivider. For example, some densely settled inner suburbs have insufficient public open space. If a large property, say an old factory site, is to be subdivided for residential purposes, that might well severely aggravate a serious existing deficiency in public open space in the area. In this situation what is needed, in the public interest, is not money, but land for public open space. It is open space land that is in deficit, and it does not solve the problem to provide money. Also, in a developed and settled area like that it is not a solution to say that the cash be used to buy land because land values may be so high that 5% of the site value will not buy sufficient of it. It may not be sufficient to buy an area equal to 5%. The purpose of the requirement is to make provision for the need created and that policy may be substantially defeated if the subdivider can insist on giving cash in lieu of what is really needed, that is to say, land.

32. Conversely an opposite situation may arise. There may be a subdivision in an area where there is ample public open space provided, but what is needed is some cash to develop it and make it useable for that purpose. Money might be needed to clear black berries, remove hazards, install toilets, erect play equipment, changing rooms, sporting facilities, park benches, trees, gardens and the like. There certainly can be situations where it is money to develop the open space, rather than land itself, that is needed. In this situation it may not at all meet the need created, if the subdivider can insist on contributing land rather than cash.

33. A further point can be raised in relation to the question of which land will be contributed, if the contribution is to be wholly or partly in the form of land. If the option is with the subdivider, the subdivider may nominate land that is quite unsuitable or unusable for the purpose of public open space. For example, the subdivider might nominate land that is under water, or that is contaminated, or that is dangerous due to old mine shafts or that is remote and inaccessible and so inconvenient that people will not use it.

34. Mr Tweedie recognises these objections as valid ones. He seeks to meet them with what I consider to be an inadequate argument. He says that if the subdivider puts up a proposal that is unacceptable from one or more of these points of view, the remedy for the Responsible Authority is to refuse it. If an application for a planning permit for subdivision is put forward on such a basis, then the Responsible Authority should refuse it, for example, on the basis that the land is unsuitable because it is under water. This, according to Mr Tweedie, would leave the subdivider with a legitimate refusal and the option to put up a new proposal. If the refusal was because land was needed when money was offered, or money was offered where land was needed, the recognition that the Responsible Authority could refuse the proposal is tantamount to recognising that the power of election is, after all with the Responsible Authority.

35. In the case of the subdivider nominating land that was unusable because it was under water, it might be found that next time it nominates land that is unsuitable for another reason. For example, this time it might be land that is contaminated. In that situation Mr Tweedie would have the Responsible Authority again refuse the application. He does not admit that the Responsible Authority could grant the application containing a condition requiring that a different piece of land, that is suitable, should be provided. He just argues that there must be a second refusal. Of course, on the third time round the subdivider might nominate land that the Responsible Authority considers to be unsuitable because it is inaccessible, and on the fourth land that is too steep and so on. I put it to Mr Tweedie that there was a serious flaw in his reasoning if it could lead to ten legitimate refusals in five years. It would be oppressive for the Responsible Authority to refuse a string of application, one by one, perhaps each on a legitimate ground, but without disclosing its real overall position. It should give its effective answer, rather than keeping the poor applicant guessing time after time, as Mr Tweedie would have it do. After all, the Responsible Authority, in refusing a nominated 5% of land in the south east corner, would do so on the basis of saying why that piece of land was unsuitable. It would not and could not be expected to then go ahead and specify the unsuitability, if that be the case, of all the other corners and the centre and so.

36. In my view Mr Tweedie's argument here is clearly astray. If the Responsible Authority considered that the land nominated was unsuitable, but that the proposed subdivision was appropriate in other respects, then its proper course would be, not to refuse the application absolutely, but to grant it subject to a condition specifying suitable land and requiring it to be contributed. This could be done by means of a valid permit condition. The subdivider would have a right to apply to this Tribunal for a review of such a condition under s 80 PE Act. By that means finality could be achieved. It would not be confronted with an unfair and oppressive series of refusals of specific applications as advocated by Mr Tweedie.

37. I believe the same principle applies where the dispute is not about which piece of land is to be contributed, but whether cash should be contributed rather than land. In the present case, I consider it appropriate for the Responsible Authority, if the subdivision is acceptable from other points of view, to determine to grant a permit subject to a condition requiring land rather than cash, and specifying which land. The matter having come before the Tribunal on review, the Tribunal, standing in the shoes of the Responsible Authority, is in a similar position. If it considers it appropriate, it can and should impose a similar condition.

38. The question of the validity of such a condition was argued at the hearing. Such a condition clearly satisfies the normal tests of condition validity. In particular, it is directly related to the permission being granted and to the planning purpose of ensuring the provision of suitable open space to meet the increased requirement occasioned by the subdivision.

39. Mr Tweedie did not really challenge the proposition that the condition would be valid in accordance with those tests. He argued that such a condition, though valid on those tests, nevertheless is invalid for another and more fundamental reason, a reason so fundamental that it is often not even mentioned in a discussion of the tests of validity of permit conditions. It is no less applicable for frequently being taken for granted in that way.

40. That test is that a permit condition must be in accordance with the law and cannot be repugnant to the law. A Responsible Authority and the Tribunal on review, cannot impose a condition that is contrary to law.

41. On this line Mr Tweedie argues that Clause 52.01 is part of the law. That far he is on firm ground. Clause 52.01 is part of the planning scheme and the planning scheme is a piece of subordinate legislation. It is part of the law. It is true that a permit condition cannot be imposed if it is contrary to the planning scheme, that is, contrary to a provision in the planning scheme.

42. However, this argument begs the question of whether such a condition would indeed be contrary to Clause 52.01. Mr Tweedie asserts that Clause 52.01 should be interpreted in the way he urges, and that upon that interpretation (that the choices are with the subdivider), then a specifying condition by the Responsible Authority or the Tribunal, would be contrary to the planning scheme.

43. However, that argument depends on acceptance of the proposition that his interpretation is the correct one. That is the very thing that I have to decide. Clause 52.01 does not specifically say that the subdivider has the options attributed to it by Mr Tweedie's interpretation. That is an inference he draws from the form of the words in the clause, rather than something that is specifically stated in the clause.

44. I consider that the clause has to be read in accordance with its own terms, but also in its context in the planning scheme as a whole, and probably in the context of legislated planning law as a whole, including the planning scheme. Such law allows the Responsible Authority (or the Tribunal) to impose such conditions. They satisfy the tests of condition validity. They can be imposed under s 62(2) PE Act. They provide the true means of resolving the question as to who has the power to decide whether the contribution will be in cash or land or a combination or what combination or what land. The subdivider can suggest or propose, but the Responsible Authority (or Tribunal) can decide, and can express and impose its decision by means of a valid permit condition.

45. All this is applicable where the planning scheme itself does not make the decision. Sometimes a planning scheme, by means of a schedule to Clause 52.01, takes away the discretion. For example, in the Greater Shepparton Planning Scheme there is a schedule to Clause 52.01 of that scheme which provides that, in relation to the subdivision of residential, business or industrial land the contribution will be "5% of site value". Under that provision the contribution is cash not land.

46. The equivalent provision in the Mornington Peninsula Planning Scheme provides that the amount of contribution for public open space (save for certain specified examples) is "five percent (5%)". That is the provision applicable to the current case. It leaves it open as to whether the 5% is to be land or cash. It is in contrast to the cash only situation under the Greater Shepparton Planning Scheme.

47. The schedule to Clause 52.01 in the Mornington Peninsula Planning Scheme also contains a particular provision in relation to land within Development Plan Overlay Schedule No. 1. In relation to that variety of land the amount of contribution for public open space reads as follows:-

Nine percent (9%) of the land to be subdivided, or

Twelve percent (12%) of the site value of the land to be subdivided, or

A land contribution equal to nine percent (9%) of a portion of the land to be subdivided plus a cash-in-lieu contribution equal to twelve percent (12%) of the site value of the remaining portion of the land to be subdivided.

This contemplates cash and or land in differing amounts but remains silent as to who makes the choice.

48. The Boroondara Planning Scheme, as another example, has a schedule that makes no specification at all. In Boroondara the default provision in Clause 52.01 applies. Section 18 SD Act springs into the gap.

49. Section 18 SD Act applies if a requirement for public open space is not specified in the planning scheme. There frequently is such a specification by means of Clause 52.01 and an attendant schedule. In that circumstance those provisions apply. If, as in Boroondara, there is no specification under Clause 52.01 and its schedule, then s 18 SD Act applies.

50. Mr Tweedie anticipated that Ms Quigley might raise arguments in relation to the rules of statutory interpretation and in particular to the purposive approach, as opposed to the literal approach, and the purposive approach as provided for in s 35(a) of the Interpretation of Legislation Act. Both he and Ms Quigley referred to various cases and to the commentary provided in Statutory Interpretation in Australia, Fifth Edition by D C Pearce and R S Geddes. Ultimately, I do not think that there was any conflict between them, or between them and me, as to the correct approach to interpretation in the situation as explained and expounded in those authorities. I think that is true, save possibly for one side point in relation to which I will make a side comment in due course.

51. He started, at paragraph 5 of his submissions, with the proposition that effect should be given to the ordinary and natural meaning of the words used, and to obey that meaning unless it would lead to some absurd or inconsistent result.

52. He, of course, contends, on the basis of his argument already discussed, that the ordinary and natural meaning of Clause 52.02 leaves his clients with the choice.

53. I think, for reasons I have already explained, that the result he argues for does lead to an absurd result that is inconsistent with the policy of the provision concerned. I also think that his interpretation depends on reading the provision in isolation, rather than in its context as part of the planning scheme. It depends on ignoring the power of the responsible authority to impose a condition that specifies the choice.

54. Clause 35(a) of the Interpretation of Legislation Act provides for a construction to be preferred that will promote the purpose or object underlying the provision. I think Mr Tweedie's interpretation fails on this point. The purpose or object is good and orderly planning including the provision of public open space for resort and recreation where the need is created or increased by subdivision. That purpose and object is not met by the imposition of a requirement to accept money in place of land where it is land that is needed and it is not met by the imposition to accept unsuitable land where it is suitable land that is required. Those aspects of the purpose or object are liable to be defeated by the Tweedie interpretation.

55. His next point is that s 35(a) Interpretation of Legislation Act does not warrant a construction that will "best achieve" the object of the Act. He contends that the choice under the section is between an interpretation that will achieve the purpose on one to one hand, and one that will not. This is in contrast to making a choice between two, both which achieve the purpose, but where one better achieves it. On this point he referred to paragraph 2.11 of Pearce and Geddes at page 29 and the decision of High Court in Chugg v Pacific Dunlop (1990) 95 ALR 481 where Dawson Toohey & Gaudron JJ drew attention to a limitation in s 35(a) where at page 189 they said:-

The choice directed by s 35(a) of the Interpretation of Legislation Act is not as to the construction which "will best achieve" the object of the Act. Rather, it is a limited choice between "a construction that would promote the purpose or object [of the Act]" and one "that would not promote that purpose or object".

56. This is quite an interesting point, and it does reflect the actual wording of s 35(a). However, I doubt that it should be applied in too narrow and specific a form. If one interpretation achieves the purpose fully and another only to the extent of 1% of the total purpose, should one rate them equally under s 35(a) on the basis that they both achieve the object to some extent, or should not the former be preferred because it achieves the object fully? I would have thought that the construction that fully achieved the purpose or object could be preferred on the basis that it is "the purpose or object" that is considered, and that it promotes that purpose or object to achieve it fully, rather than to achieve it merely to the extent of 1%.

57. Applied to the current case, I have no doubt that the Tweedie interpretation is partly destructive of the purpose and object of the legislation, even if it might also promote it to some extent.

58. It would seem too greatly reduce the usefulness of s 35(a), and be destructive of its own purpose, if one cannot prefer an interpretation that wholly achieves the purpose or object, and does so one hundred fold more effectively than an alternative.

59. Debate on this point led me to ask Mr Tweedie whether, if s 35(a) did not allow any differentiation of this sort, the previously applicable common law in relation to statutory interpretation generally and the "mischief" or "purpose" rule would still apply. Also, if the answer is yes, what did, or does, the common law say on this point.

60. In this connection Ms Quigley made reference to the case of Cooper Brookes (Wollongong) Pty Ltd v FCT [1981] 35 ALR 155 at 169-70. It was said, at the hearing, that this case was decided before s 35 of the Interpretation of Legislation Act, or its earlier Commonwealth equivalent, were enacted. Thus I take the passage to represent the pre-existing common law although Ms Quigley also refers to this case as frequently cited in relation to the legislative provision in authorities such as Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 FC 91/071 (High Court) and Boral Resources (SA) Ltd v Chief Executive Officer of Customs [1999] AATR 94 (Mathews J, President of Federal AAT), decided after enactment of s 35(a) and its federal equivalent.

61. The passage quoted in Pearce and Geddes from the Cooper Brookes case is from the judgement of Mason Wilson JJ. However, I propose to start the quotation a little earlier in their judgement at the beginning of their paragraph 20 as follows:-

20. The literal construction rule has been expressed in various ways. In earlier times it was expressed more absolutely than it is today, possibly because the courts, anxious to distinguish between legislative and judicial functions, were at pains to emphasize that it is no part of the judicial function under the cloak of construction to amend statutes merely to overcome shortcomings in their operation. One of the strongest statements of the literal rule is to be found in the judgment of Higgins J. in Amalgamated society of Engineers v. Adelaide Steamship Co. Ltd_. (1920)_ 128 CLR 129, at pp 161-162:

"The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable." See also Nolan v. Clifford [1904] HCA 15; (1904) 1 CLR 429, at p 453 . (at p320)."

21. It would have been better had Higgins J. omitted the last clause of the last sentence from the passage which we have quoted. The last clause may be taken to suggest that the operation of a statute is not relevant to the ascertainment of its meaning and this is certainly not now the case, if it ever was. Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute. (at p320).

22. There is a similar problem with the related so-called "golden rule" of construction. There are statements of the rule which would confine the courts to the ordinary grammatical sense of the words used unless that produces an absurdity or inconsistency. It is to be noted that Dixon J. in Broken Hill South Ltd. v. Commissioner of Taxation (N.S.W.) [1937] HCA 4; (1937) 56 CLR 337, at p 371 observed that departure from the ordinary grammatical sense is not legitimate unless there is "some obscurity or some inconsistency", though it may be that "obscurity" was intended to be a reference to "absurdity". For the reason already given in the discussion of the literal rule, departure from the ordinary grammatical sense cannot be restricted to cases of absurdity and inconsistency. (at p320)

23. In some cases in the past these rules of construction have been applied too rigidly. The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction. (at p320).

24. The rules, as D. C. Pearce says in Statutory Interpretation, p. 14. are no more than rules of common sense, designed to achieve this object. They are not rules of law. If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive. When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature. (at p230).

25. On the other hand, when the judge labels the operation of the statute as "absurd", "extraordinary", "capricious", "irrational" or "obscure" he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions. (at p320)

26. Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended. (at p321).

62. I would consider Clause 52.01 to be obscure if it really admits Mr Tweedie's interpretation, and irrational and somewhat absurd, if that was to be its true interpretation. If his was the literal reading I would conclude that there was good reason for saying that it does not conform to the legislative intent as ascertained from the provisions of the planning scheme including the policy that may be discerned from those provisions. I think the alternative is the better interpretation anyway, and that this is further fortified by it being fairer and more convenient in operation.

63. Mr Tweedie also argued, on the authority of Federal Commissioner of Taxation v Smorgon 16 ALR 721 Stephen J at 729 that a construction that interferes with the legal rights of an individual to a lesser extent, or produces less hardship, is to be preferred to another interpretation. I think that can only apply where the matter is doubtful. In this case I have resolved the initial doubt I had on first reading the clause.

64. At his paragraph 12 Mr Tweedie observes that the wording of Clause 52.01 differs from that in the Subdivision Act. He says:-

Clause 52.01 is framed in entirely different terms, and (it must be assumed) deliberately so as to distinguish it from the situation that applies under the Subdivision Act.

65. I note that the wording differs. Whether it is "entirely" different, I need not go into. I do not make the assumption that the difference is deliberate to intentionally impose a different meaning. On the contrary, I believe it was assumed that the power of choice would still remain with the Responsible Authority. My concern has been as to whether that intention has been achieved with the current wording, not because of doubt as to what was intended.

66. Furthermore, I do not accept the invitation to assume that a different result is intended because Clause 52.01 could have, as Mr Tweedie said in his paragraph 13 "simply ... reproduced the words used in that Act". The planning scheme is clearly drafted in accordance with a different style of drafting to that which was employed with the Subdivision Act of 1988. The so called "plain English" style of drafting has been employed for the planning scheme. That obvious difference and style is sufficient to account for there being different wording. The plain English drafting no doubt seeks to be "plain" and often appears to attempt to be "spare" so that repetitions, variations and explanations not thought to be necessary appear to be excluded. Sometimes perhaps, this results in drafting that is more "plain" and "clear".

67. It is true that Clause 52.01 could have included a phrase such as "in a form satisfactory to the council [or perhaps responsible authority]", and perhaps it may have been better if something of that sort was spelt out, but nevertheless, I still do not interpret the provision as granting the discretion to the subdivider.

68. Mr Tweedie also considered the question from the point of view of what are the purposes, objects or policies that are relevant, and in doing so he turned to such general propositions as the objects of planning in Victoria and the objects of the planning framework set out in Section 3 PE Act. I think it is appropriate to look more particularly at the purpose, policies and objectives of the provisions in relation to open space contributions, but I do not think he derives much support from the broader objects either. He refers to the first objective of planning being that in s 4(1)(a) which is:-

To provide for the fair, orderly, economic and sustainable use and development of land.

69. I do not agree with Mr Tweedie that this objective will not be offended if the interpretation gives choice to the subdivider. He says that the system would still be "fair and orderly". The system as a whole might be, but in relation to questions of public open space I do not agree that it would be fair, and in particular, I do not agree that his interpretation is in keeping with "orderly" planning and development. Orderly planning and development will look for suitable, useable and convenient provision of public open space when needed, and this is not aided by the perverse choices that private subdividers might make in their own interest, and to the detriment of orderly planning in the public interest.

70. Ms Quigley also claims the interpretation is contrary to other objectives in s 4(1) namely (c), (e), (f) and (g) as well as several others in s 4(2). I will not go through them all, but I think she has a point in referring to the objective in (1)(c) is "to secure a pleasant, efficient and safe ... recreational environment for all Victorians and visitors to Victoria" and, in 4(1)(e) "to protect public utilities and other assets and to enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community".

71. Mr Tweedie, in his paragraph 20, says that "prima facie the Council's interpretation is at odds with the objective of the planning framework in s 4(2)(l), being to provide for compensation where land is set aside for public purposes and in other circumstances". I am not surprised he left this as a prima facie observation, and did not seek to argue it, because it will not stand up. It is quite clear that the specific statutory provisions in relation to the provision of public open space occasioned by subdivision, past and present, are not intended to attract separate compensation. The compensation is the advantage of being able to subdivide the land.

72. In his paragraph 21 Mr Tweedie advanced a thin argument on what he said was the role of the council in determining issues in respect of public open space. In doing so he turned to some old decisions on other legislation, namely LGA 1958 when he cited the cases of Gishen v City of Broadmeadows [1966] VR 82 and Oppe & Ors v Shire of Lillydale [1980] VicRp 37; [1980] VR 387. I have not really found those references to other, now historic, legislation to be of much assistance in interpreting Clause 52.01.

73. He further observes, at paragraph 25, that not all subdivisions require a planning permit and that Clause 52.01 appears to apply, whether or not a planning permit is required. I would not be greatly troubled by this circumstance, if it was true. Furthermore, the categories of subdivision that do not now require a planning permit are few and special. They can be said to be exceptional under the present regime and they are catered for as exceptions in the second paragraph of Clause 52.01.

74. Finally, as a "Parthian shot", Mr Tweedie says that a condition requiring the payment of money as a public space contribution is prima facie in conflict with s 62(6) PE Act. I think it is a Parthian shot that glanced harmlessly off the target. I am not sure whether the use of the phrase "prima facie" by Mr Tweedie, unaccompanied by further argument, is an indication that he realises that the prima facie proposition will not bear a closer examination. I have given that sub-section, and s 62(5) PE Act some close consideration in Christian Brothers (Vic) Pty Ltd v Banyule City Council [2001] 9 VPR 128. As Mr Tweedie has not argued the point, I do not think I need to respond to it, except to observe that the prohibition there on requiring money can be overcome by condition requiring an agreement under s 173 PE Act. Anyway that the question of paying money does not arise in this particular case because the question here is whether the Responsible Authority can impose a condition requiring land rather than cash. Beyond that, the question can be gone into more fully when it arises and when it is argued.

75. Thus I answer the two questions set out in paragraph 8 above in accordance with the reasons I have given in the following way:-

(i) As to whether Clause 52.01 empowers the Responsible Authority, and on review this Tribunal, to require the public open space contribution to be provided in the form of land rather than cash, I say that it does.

(ii) As to whether the proper interpretation of that clause and its schedule allows the permit applicant to elect whether to contribute by way of land, money or a combination, I say that it does not.

Environment Act 1987

Under the LG Act 1958

Country Planning Act 1961

Trethowan v Mornington Peninsula SC & Ors [2002] VCAT 1377

At a glance

Court

Decision date

Source

Judgment (141 paragraphs)

Trethowan v Mornington Peninsula SC & Ors [2002] VCAT 1377 (26 November 2002)

Parties

Legislation Cited (5)

Cases Cited (3)