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[2006] VCAT 1780
Victorian Civil and Administrative Tribunal
2006-08-22
Original judgment source is linked above.
Anne Patricia Tucker (application originally made in the name of "Coastal Surveys" as agent for Anne Tucker)
Lots 1, 2, 3 and 4 on Title Plan 126158 being the land in Certificate of Title Volume 7796 Folio 061.
An irregularly shaped but roughly rectangular area of land (although with a concave curved boundary on the seaward side) having a frontage of 67.11 metres to the north side of Point Nepean Road, side boundaries of approximately 155 and 165 metres and an area of 10,291 square metres.
Tucker v Mornington Peninsula SC No 3 [2006] VCAT 1780
1 By consent the application for review and the permit application that gave rise to the permit containing the conditions under review are each amended to substitute Anne Patricia Tucker as the applicant in place of "Coastal Surveys".
2 This application for review is granted and I direct pursuant to s.85(1)(e) of the Planning and Environment Act 1987 that planning permit PO5/0867 issued 27 October 2005 must not contain Condition 9(a) as it appeared in the permit as originally issued and in lieu of Condition 6 as it originally appeared must contain a sixth condition reading:
6. Prior to the issue of Statement of Compliance, the owner must pay a Public Open Space Contribution to the Responsible Authority of the amount specified in the Schedule to Clause 52.01 of the Mornington Peninsula Planning Scheme being the percentage of the site value of all of the land being subdivided in accordance with that schedule and Clause 52.01 of the said Planning Scheme.
_________________
RUSSELL BYARD
SENIOR MEMBER
Ms. M. Quigley SC, Barrister, appeared on the instructions of the firm of Deacons for the responsible authority. She presented written and oral submissions.
Mr. Tom Callander, Solicitor of the firm of Rigby Cooke, Solicitors, appeared for the applicant. He presented written and oral submissions.
Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.
Application under s.80 of the Planning and Environment Act 1987 (PE Act) for review of conditions in a permit or Notice of Decision to grant a permit.
Residential 1 Zone and subject to a Design and Development Overlay (Schedule 3), an Environmental Significance Overlay (Schedule 25) and a Vegetation Protection Overlay (Schedule 1) under the Mornington Peninsula Planning Scheme.
Conditions 6 and 9 in Planning Permit PO5/0867 issued 27 October 2005.
At the commencement of the hearing the permit application and the application for review were amended to make Anne Patricia Tucker the applicant in each instance. The permit application had originally been made by "Coastal Surveys" which purported to act in that matter as agent for Anne Tucker. Coastal Surveys is probably a business name under which some person or persons or company or other corporation or corporations carry on business. The parties to a review proceeding like this one need to be legal persons, that is to say, human beings or corporations recognised by the law. As such, it should be the persons or corporations carrying on business under the business name who are the parties, not the business name itself. In any event, it is preferable, where someone acts as agent for a principal, that the applications and proceedings should be in the name of the principal rather than the agent.
Another possibility is that coastal surveys may be part of the name of a company. In that event, the full correct name of the company should appear.
All this is rectified by amending both applications so that Anne Patricia Tucker is the applicant in each case.
1 This case concerns a substantial area of land on the north side of Point Nepean Highway at Portsea. It has an area of 10,291 square metres. Its frontage to the north side of Nepean Highway is 67.11 metres. When I say the north side of Point Nepean Road that road, in this vicinity, does not run true east to west. Nevertheless, I have assumed that it does to simplify directions.
2 The land is irregular in shape, partly because it follows the median high water mark of Port Phillip Bay. The land runs from its frontage to Point Nepean Road back to the median high water mark.
3 There is an existing house towards the rear of the block, generally in the north-western segment. However, this house is on high ground and there is a cliff between it and the northern boundary of the land.
4 This case was heard together with two other applications for review of conditions in relation to two other permits each of which relate to the land. The other two cases, which are between the same parties as this one,[1] were resolved by agreement between the parties. Rather complex orders were required but they have been dealt with in separate determinations. It is not necessary to consider them further here.
5 This case however could not be resolved by agreement although the surviving controversy really relates to condition 6 rather than condition 9. Both conditions relate to the requirement of a cash contribution for public open space. In short condition 6 requires a contribution of 5% of the site value of lot 1 to be created by the subdivision. Condition 9 provides an agreement under which such contribution in relation to lot 2 would be deferred until lot 2 is further subdivided.[2] Mrs. Tucker claims an exemption. Failing that she wants a similar indefinite deferral in relation to lot 1.
6 The review site in this case was originally owned by the late mother of the applicant. The mother died in 2003. The property was left to Mrs. Tucker and her two siblings. These three surviving children agreed amongst themselves that the land should be subdivided into at least two lots. Lot 1 was to contain the existing house, most of the cliff and the boat sheds below with vehicle access being along a new driveway from a new crossing, such driveway to run along the western boundary of the land. The balance of the land to be subdivided off from lot 1 was to be sold for the benefit of the other two siblings of Mrs. Tucker.
7 Planning permission was required under the planning scheme for subdivision of the land. Application for that planning permit was successful to the extent of the grant of permit PO5/0867 on 27 October 2005. The words granting permission in that permit state that the permit allows
SUBDIVIDE LAND INTO TWO LOTS AND CREATE NEW ACCESS POINT AT POINT NEPEAN ROAD IN ACCORDANCE WITH THE ENDORSED PLANS.
8 The permit was granted subject to 10 conditions that appear in the permit document. Two of these conditions refer to the question of the making of a contribution for public open space as a result of the subdivision. These are the conditions in dispute in this case namely conditions 6 and 9 (although the dispute is really confined to condition 6).
9 The land to be subdivided was contained in Certificate of Title Volume 7796 Folio 061. It constituted a single parcel of land in the site of the single existing house. However, it was comprised of four areas referred to as lots 1, 2, 3 and 4 on Title Plan No. 126158. These "lots" were originally Crown allotments or portions of Crown allotments. The proposal was, in effect, to consolidate those original lots and then subdivide the land to give effect to the agreement between the heirs of Mrs. Tucker's mother. The subdivision applied for, which has in fact been registered at the Title's Office, and in relation to which separate titles have in fact issued, was to divide the land into two lots. Lot 1, which I have described generally above, has an area of 4,285 square metres. The balance of the land constituting lot 2 has an area of 6,006 square metres. Incidentally, the subdivision also creates a restriction on an area at the northern end of lot 2 (irregular in shape but having dimensions of approximately 31 metres by 10 metres) where building is not allowed. This is to protect views from the house and house site on lot 1.
Section 18 SD Act : A Default Provision Subject to cl.52.0 of the Planning Scheme
10 The following is an account of the law in relation to public open space contributions in relation to subdivisions. It includes a history and comparison of the relevant statutory provisions and a discussion of their analysis, interpretation and application.
11 There is a long history of requirements for contributions to public open space in relation to proposed subdivisions of land intended to be used for residential, industrial or commercial purposes. Such provisions appeared, for example, in s. 569B(8A) of the Local Government Act 1958 (LG Act). Subsequently, the subdivision provisions that used to appear in the Local Government Act were superseded upon the coming into operation of the Subdivision Act 1988 (SD Act). Section 18 of that Act, in particular, deals with this topic. However, s. 18 SD Act has been largely, but not completely, superseded by cl.52.01 in the various Victorian planning schemes based on the Victorian Planning Provisions (VPPs) under the Planning and Environment Act 1987 (PE Act). Section 18 still has a default function where, as under some planning schemes, cl.52.01 does not operate.
12 Section 18 always contemplated that it would be superseded or relegated to a default provision by planning scheme provisions. Section 18(1) commences by saying:
If a requirement for public open space is not specified in the planning scheme ...
13 After saying that, s.18(1) goes on to make provision for the requirement of contributions for public open space to be made or paid to the council of the municipality. Under that provision up to 5% of the land or 5% of the site value of all the land being subdivided or a mixture of land and cash can be required. However, any requirement under s.18(1) is subject to those opening words quoted in paragraph 11 above which make its requirement subsidiary to requirements for public open space imposed by the planning scheme. Under the VPPs, and therefore in the Mornington Peninsula Scheme, cl.52.01 has that effect in this municipality.
14 Section 18 refers to the council "acting as a responsible authority or a referral authority under the Planning and Environment Act 1987". However it does not specify that the requirement has to be made by means of a condition in a planning permit or that the requirement will be dependant upon the need for a planning permit. It has been common for councils to make the requirement by means of such a condition under the SD Act and, as I recall it, under the LG Act. Nevertheless, my recollection is also that such requirements were sometimes made by other means, for example by means of a letter, particularly under the LG Act.
15 A somewhat similar situation now appears in relation to cl.52.01 of the planning scheme. The first paragraph in that clause reads:
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.
16 The above provision does not limit the requirement to subdivisions where a permit is required. It applies where an amount is specified in the schedule to the clause. These schedules can vary from planning scheme to planning scheme. Where no amount is specified then s.18 applies in default. In relation to the Mornington Peninsula planning scheme there is a specification. It is, in relation to this land, that the amount of contribution for public open space is 5%.
Clause 52.01 Differs from s.18 SD Act
17 The above quoted provision differs from s.18 in various ways. Section 18 contains some discretions to be exercised by the council which do not appear in clause 52.01.
18 The first of these is that s.18 grants the council a discretion as to whether any public open space contribution will be required. That discretion does not appear in clause 52.01. If the land is to be subdivided and intended to be used for residential, industrial or commercial purposes, then the contribution "must" be made. Section 18 says "may", in place of "must".
19 As I have said, the schedule to clause 52.01 in the Mornington Peninsula planning scheme does specify an amount namely 5%. It specifies the flat amount of 5%. It does not say up to 5% or not more than 5%, as was the case with s. 18. Although I think a schedule to clause 52.01 would be able to provide for a discretionary requirement just as it might specify some percentage other than 5, this one does not. The effect is that, so far as Mornington Peninsula Shire is concerned, there is no discretion as to the amount. It is 5% where the requirement applies. Section 18 refers to a percentage not exceeding 5%. The same was true under the LG Act[3].
20 In the above quotation of the first paragraph of cl.52.01 there is reference to s.18 SD Act, but only to note that it is a default provision. In the absence of any further references to s.18 SD Act in cl.52.01 (there is a further reference) this would mean that, so far as Mornington Peninsula Shire Council is concerned, s.18 does not apply. I must deal later with an argument as to whether s.18 should be referred to in relation to the interpretation of cl.52.01, or whether that clause should be interpreted in its own terms and as a stand alone provision with s.18 SD Act and s.569B LG Act forming only background and legislative history.
21 I have discussed the first paragraph of cl.52.01, quoted above[4], so far as if it was an absolute rule. It is, in fact, subject to several possible exceptions specified in the third paragraph of cl.52.01. (The second paragraph of cl.52.01 deals with the subdivision of buildings and is not relevant for present purposes.)
22 This third paragraph of cl.52.01 contains the second reference to s.18 of the SD Act and then sets out three exemptions (the first containing what might be called two sub-exemptions). It is only the third exception that is relevant in this case. I will therefore set out here the relevant parts of this third paragraph as follows:
A subdivision is exempt from a public open space requirement, in accordance with Section 18(8) of the Subdivision Act 1988, if:
•
It subdivides land into two lots and the council considers it unlikely that each lot will be further subdivided.
23 It can be seen that this third paragraph refers to s.18(8) SD Act. It is odd, to say the least, that this reference is included. Unfortunately, the drafting of portions of the SD Act and the planning scheme leave something to be desired.
24 Section 18(8) is in similar, but not identical, terms to the third paragraph of cl.52.01. It also creates exceptions where public open space requirements will not in fact be required. There are three such exceptions in subs.(8), similar to those in cl.52.01. The differences relate to the first exception that is not relevant in this case. I will therefore only quote the parts of subs.(8) that are parallel to the parts of paragraph of cl.52.01 quoted above. The sub-section thus edited reads:
(8) a public open space requirement is not required if -
(c) the subdivision subdivides land into two lots and the Council considers it unlikely that each lot will be further subdivided.
25 I think it is correct to say that the "subdivision" referred to in s.18(8) means the subdivision referred to in subs.(1) of that section. It is subs.(1) that creates in the council the power and discretion to impose a public open space requirement, if it sees fit, of up to 5%, the percentage being in the council's discretion. Thus subs.(8) imposes a restriction by way of exception upon the power that the council would otherwise have under subs.(1) to impose a public open space requirement. But subs.(1), and all of s.18, applies only where the planning scheme does not specify a public open space requirement. Mornington Peninsula planning scheme does, therefore s.18, including its subss.(1) and (8), do not apply in the present case. It is cl.52.01, together with its schedule, that apply in this case. It contains an exception in similar terms to s.18(8) SD Act, but that exception is imposed by the terms of cl.52.01 itself and not in deference to or under or "in accordance with" s.18(8). The reference s.18(8) in the opening words of the third paragraph represents poor drafting. The exceptions in the third paragraph stand on their own two feet as part of the planning scheme created under the Planning and Environment Act 1987 without any deference to or reliance upon the SD Act. The phrase "in accordance with" cannot here mean "as dictated by s.18(8)". It can mean no more than that the terms of these exceptions are in the same terms (at least in substance) as the exceptions in s.18(8). It is hardly a happy phrase, even having that limited meaning, in as much as certain parts of the two provisions are not identical. I think that the expression in the opening words of paragraph 3 reading:
In accordance with Section 18(8) of the Subdivision Act 1988
is in fact surplusage having no effect except, perhaps, to mislead. In my opinion these opening words would have the same legal effect, and be better drafted and less misleading, if they simply read:
A subdivision is exempt from a public open space requirement if:
26 The effect of cl.52.01, as it applies in this case, is that it imposes a mandatory contribution of 5% (but not any lesser or other percentage) unless the subdivision is into two lots and the council considers it unlikely that each lot will be further subdivided.
27 This means that, if the requirement of a contribution applies it is not dependant upon a permit being needed for the subdivision and it is not dependant on there being a condition in the permit requiring a contribution. The planning scheme is part of the law of Victoria. Clause 52.01 says that a person who proposes to subdivide land "must" make a contribution for public open space. That is the law whatever a permit or a permit condition might say on the topic.
Should Condition 6 Be Deleted and What Effect, If Any, Would That Have?
28 The applicant in this case seeks the deletion of condition 6. Condition 6 purports to impose a public open space contribution requirement. The applicant wants it deleted, presumably on the basis that it is thought this would remove the requirement. I do not think that removal of condition 6 would have the legal result of removing the public open space requirement. On the contrary, cl.52.01 would still apply.
29 In this case the responsible authority has exercised the discretion it does have under cl.52.01 to require cash rather than land or a combination of land and cash.
30 The result is that, unless the exemption applies, there is a liability to pay 5% "of the site value of such land" as a contribution for public open space.
31 The expression "such land" here means "the land intended to be used for residential, industrial or commercial purposes". In this case all of the land is zoned for and intended to be used for residential purposes.
32 The result then is that the contribution is to be 5% of the site value of all of the land being the whole 10,291 square metres and not the site values of the two allotments being created considered separately. The only relevance of the subdivision in ascertaining the site value of the whole of the land to be subdivided is the effect that its subdivision potential might have on such a site value. In that connection regard would need to be had to the potential for the whole of the land to be divided into rather more than the two lots that it is being subdivided into. There is a minimum area for lots to be created referred to in the planning scheme (along with one or two other constraints). The minimum area is 1500 square metres. The subdivisional potential of the whole parcel was probably 5 or 6 allotments.
33 There are a couple of further points to be made in relation to the understanding of the third exemption quoted above. It only applies in relation to a subdivision into two lots. It cannot apply in relation to a subdivision into three or more lots. Furthermore, even then, it only applies where "the council considers it is unlikely that each lot will be further subdivided".
34 The word "unlikely" does not mean "impossible". It does not necessarily mean that further subdivision is "likely". The notion of "further" subdivision necessarily involves a consideration of future possibilities and whether such possible subdivision is "unlikely". It does not impose a limit as to the extent of time into the future that is to be considered. For example, it is not limited to the current intentions of the current owner or the current subdivider or, for that matter, a contemplated future purchaser. It is not even limited to the lifetimes of present owners or prospective purchasers. The time when the consideration is to be undertaken is before the subdivision, as the whole clause relates to a person who "proposes" to subdivide land.
35 In fact, cl.52.01 imposes a current requirement to make a contribution if one proposes to subdivide. The contribution is normally required prior to a certificate of compliance, as it may be difficult or impossible to collect the contribution at a later stage, particularly if the subdivision has been registered and new titles have issued.
36 It may be relevant for the council to consider, in assessing whether further subdivision is "unlikely", that the circumstances of present owners may change, their intentions may change and, in any event, they will not live forever. This very case illustrates how the death of one owner can give rise to a desire to subdivide by heirs of that owner. In fact, subdivision in such circumstances is not only possible, but, generally speaking, likely. Heirs who are not going to live on the land are likely to wish to capitalise on the maximum value of it, quite often by subdividing before sale, or selling it to someone at a price that takes account of its subdivision potential. There must be many thousands of examples of larger holdings being subdivided to capitalise on the subdivision potential. Someone suffering changed financial circumstances or developing an urgent need for money may make it more likely. The grounds of innumerable major mansions have been subdivided off and sold over the years, sometimes in a succession of such subdivisions. Some famous Melbourne examples would be Como, Ripponlea and La Bassa. There are many lesser examples. A drive along St Georges Road or Lansell Road, Toorak will discover a wealth of examples. The fact that land may be particularly valuable probably makes it more rather than less likely that it will be subdivided and sold. The fact that a current land owner may be wealthy hardly makes it unlikely that the further subdivisional potential of land will be realised sooner or later in the future.
37 Another point to be noted about the exemption is that it refers to whether the council considers that further subdivision is unlikely. That raises a question as to whether the council has the last say on that point, or whether its decision on such a point is subject to review by this Tribunal. I cannot off hand think of any proceeding able to be brought under the Planning and Environment Act 1987, the Subdivision Act, or the Victorian Civil and Administrative Tribunal Act 1998 whereby such a decision by a council can be challenged before the Tribunal, except by means of an application for a declaration.
38 A declaration in those circumstances would certainly be open, but it is not likely to be effective. I do not think it would be open to the Tribunal to merely substitute its own view as to whether further subdivision is likely. I think it could only do so if the decision made by the responsible authority was so unreasonable that no reasonable council in its position, and properly instructed itself, could come to the view in fact reached by the council. It would have to be so called "Wednesbury unreasonable".[5] That is a very high degree of unreasonableness. The Tribunal will not substitute a view contrary to that of the council (if the Tribunal formed such a contrary view) unless it concluded that the council could not reasonably reach the view it did reach.
39 In this case, I think, it is perfectly clear that the responsible authority did not consider it "unlikely" that each lot would be further subdivided. I think its conclusion to that effect is unassailable. I am satisfied that further subdivision is, in fact, likely to the point of being highly probable.
40 I conclude that in spite of the evidence, some of it hearsay, as to the intentions of the Tuckers in relation to lot 1 that they have retained and their prospective purchaser (Mr. Lindsay Fox) in relation to lot 2. They have sold lot 2 to him. In this connection I have read the witness statements containing the evidence in chief of Robert Tucker and Kevin Sheives, the licensed land surveyor. Accepting what is said in those documents and noting that Mr. Callander did not wish to advance other evidence from either of them beyond what is stated in those documents; I find nothing to dissuade me from the view that further subdivision is, in fact, likely. At best that evidence does no more than indicate that it is unlikely for the immediate future, and while present circumstances remain unchanged. But the scope of consideration is not limited to the immediate future, and circumstances certainly will change. If nothing else, Mr. and Mrs. Tucker and Mr. Fox will, one day, depart this life.
41 There was a discussion in the course of the hearing as to whether the expression "each lot" meant that the consideration of unlikelihood had to apply severally and cumulatively to the lots. In other words, would the exemption apply if lot 1 was unlikely to be further subdivided, even if it was of the opinion of the responsible authority that lot 2 was likely to be further subdivided.
42 Mr. Callander, on behalf of the applicant, confessed that he had considered such an argument and then abandoned it. He conceded, rightly in my opinion, that it was enough to defeat the exemption if the council considered that one of the lots being created was likely to be further subdivided.
The Responsible Authority's Mistaken Approach in Considering the New Lots Separately
43 The responsible authority, in this case, has dealt with the question of public open space contribution in what seems to me to be a surprising way. It has not dealt with it in accordance with cl.52.01, or at least not in accordance with that clause as I have analysed it and interpreted it. As I have said, it has dealt with it by the imposition of conditions 6 and 9. They read respectively as follows:
6. Prior to the issue of a Statement of Compliance, the owner must pay a Public Open Space Contribution to the Responsible Authority for lot 1, in accordance with the Schedule to Clause 52.01 of the planning scheme.
9. Prior to the issue of a Statement of Compliance, the owner must enter into an agreement with the Responsible Authority, pursuant to Section 173 of the Planning and Environment Act 1987. This agreement must be registered by the owner pursuant to Section 181 of the Planning and Environment Act 1987 on the title of the subject land prior to the approval of this subdivision.
This agreement be prepared to the satisfaction of the responsible Authority and must be provided for:
a. The deferred payment of the Public Open Space Contribution to the Responsible Authority for lot 2 created by this permit. The agreement must provide that when lot 2 is further subdivided, the Public Open Space Contribution must be satisfied for that lot prior to the issue of a Statement of Compliance for that subdivision...[6]
44 The responsible authority has dealt with the assessment of the cash contribution for public open space, but not in accordance with cl.52.01. It has contemplated separate assessments in relation to lots 1 and 2 whereas it should be 5% of the site value of all the land being subdivided for residential purposes. Clause 52.01 does not actually say all the land being used for that purpose, but that is clearly the meaning. The expression "all the land" appearing in previous legislative manifestations of these provisions has been omitted in cl.52.01. However, I think it is clear that is a result of the so-called "plain English" style of drafting employed here which excludes such expressions when they are thought to be unnecessary. Under previous, sometimes more precise, styles of drafting such things were sometimes put in, even if obvious, to avoid doubt or future debate. In any event, I think it is clear that it is the site value of all the land being subdivided that should be assessed and the responsible authority was mistaken in assessing, as it did, the site value of lot 1 apart from lot 2.
45 Why the responsible authority would agree to the payment arrangements provided for in the s.173 agreement specified in paragraph (a) of condition 9 is quite beyond me. It is deferring, into the indefinite future, a payment it is entitled to receive for public purposes prior to the Statement of Compliance. Although I think it is highly likely that lot 2 will be further subdivided at some stage in the future, that stage may be decades away, and it is, of course, possible that it will never arise. The responsible authority is a public authority dealing with public money in the public interest. It is very generous towards Mrs. Tucker to make such a deferral, but is it responsible conduct in the circumstances? The contingency contemplated may not arise for 20 or 50 years. Is somebody going to remember and enforce payment under the s.173 agreement at that stage? Will it be possible? Who will then be liable to pay? Is the public to be denied until then the benefit of the money that is supposed to be used for public open space purposes?
46 The s.173 agreement has been executed. The responsible authority may well be bound by it. It may be bound, whatever the fate of condition 9 which, as I have pointed out, is under review. The applicant does not wish to pursue that review. That is hardly surprising. I can see no justification for paragraph (a) of condition 9 or any provisions in a s.173 agreement having that effect. I would certainly not sanction such a condition, unless there were reasons that I cannot now imagine, and of which I know nothing at present.
47 As condition 9 is subject to review in this proceeding, I think it is open to me to grant the review and delete paragraph (a). That will not destroy the s.173 agreement that has been entered. It would merely leave the parties with that agreement as an agreement. It may be enforceable as a contract.
48 As to condition 6, I think the whole notion of there being a public open space contribution "for lot 1", rather than in relation to the whole of the land being subdivided, is contrary to cl.52.01 and thus to the law in Victoria. This seems to me to be a good reason to uphold the review and to delete condition 6, although that would not, in my opinion, remove the obligation created by cl.52.01 to pay a contribution of 5% of the site value of the whole of the land. The only merit in leaving the condition would be that removal might make it appear that there was no obligation. Should a condition appear, not because it operates as a condition but merely as a note or reminder that the obligations arise under the provisions of the planning scheme but independently of the condition? I doubt that it should.
49 It is claimed on behalf of the Tuckers that $200,000 being 5% of the site value of lot 1 was paid to the responsible authority "under protest". It was indicated on behalf of the responsible authority that it was news to the responsible authority prior to this application for review that this payment was made under protest. No contemporary written document at or about the time of payment indicated payment under protest. To make such a payment without such a document appears to me to be very rash. However, it was not contested on behalf of the responsible authority that the payment was made under protest. In those circumstances, I will proceed on the basis that it was made under protest.
50 The grounds of review as set out in the application for review are fairly complex. Some of them, or some aspects, have been abandoned by the applicant. At paragraph 20 of his written submissions Mr. Callander posed three questions as being still in issue. I will set out his three questions with my answers in bold. I will then need to say something further, particularly in relation to the first question. They read as follows:
(a)
Whether clause 52.01 of the planning scheme should be construed or interpreted so as to require a mandatory 5% contribution for public open space for a subdivision of four lots into two lots.
(b)
If clause 52.01 is so construed so as to require a mandatory 5% contribution, does the exemption in the third paragraph to section 62.01 apply in respect of this two lot plan of subdivision, ie. should the Council (and now the Tribunal) have considered that it is likely that each lot will be further subdivided.
(c)
Even if the exemption were held not to be available, should the Responsible Authority in the proper exercise of its discretion have afforded the same payment deferral arrangement for Lot 1 as it did for Lot 2 by means of a Section 173 Agreement.
The First Question: Is It A Mandatory Requirement?[7]
51 In relation to the first question, the principal basis upon which it is said that there is a surviving discretion residing with the responsible authority as to whether a requirement is to be imposed does not rely upon the wording of cl.52.01. Mr. Callander would have me read cl.52.01 as if it contained some words that do not appear in it. He argues this on the basis that the words he would like to see there do appear in s.18(1) SD Act. He relies on the references to s.18, including s.18(8) SD Act that appeared in cl.52.01. He argues that there is a relationship or even a dependency between cl.52.01 and s.18 or s.18(8) SD Act. He relies upon the exemption in paragraph 3 of cl.52.01 with its reference to "in accordance with" s. 18(8) as if the third paragraph is fulfilling something allowed by s.18(8). As I have already explained, although that might appear to be an interpretation open on the wording of the third paragraph, nevertheless, having regard to the opening words of s.18(1), it should not be read in that way.
52 The words in s.18(1) SD Act which Mr. Callander wishes to read into cl.52.01 so that he can rely upon them are that the council:
may require the applicant who proposes to create any additional separately disposable parcel of land by a plan of subdivision
53 His point is that, under s.18(1), the power to impose a public open space requirement only arises if a plan of subdivision proposes to create "any additional separately disposal parcel of land". If, as a result of the subdivision, you finish up with the same number of lots that you started with, then it appears that the power to impose a requirement would not arise under s.18(1). In this case, he points out that prior to subdivision there are four lots whereas after subdivision there will be two. He says that in such a situation no requirement can be imposed.
54 Obviously his difficulty is that the words in s.18(1) that he relies upon do not appear in cl.52.01. He wants to read them in on the basis that cl.52.01 is a so-called policy neutral transcription of s.18 into the so-called "plain English" drafting style. (If the SD Act is also in plain English style, then he would say translation to a new wording in that style.) In other words, cl.52.01, he says, is meant to be, and should be read as, saying the same thing as s.18, although in different words.
55 I see no basis or justification for such an approach. I am not aware of any authoritative statement that cl.52.01 is meant to be a policy neutral transcription of s.18. Some such authority would be needed to persuade me that cl.52.01 should not be read and interpreted on its own terms without importing words from s.18 to change its plain meaning.
56 Section 569B(8)(A) LG Act does not contain any such words as those from s.18(1) SD Act which he wishes to import. It would be highly inconvenient, to say the least, that there should be an important qualification to what cl.52.01 says depending upon the importation of absent words that only appear in s.18(1) SD Act. If that was intended, cl.52.01 certainly should have repeated the words argued for. How unsatisfactory. If Mr. Callander was right, then sensible, intelligent people could read cl.52.01 not realising that there are secret, unstated, invisible words that take their place in cl.52.01 to impose an unstated restriction on the clause. It would hardly be plain English if, unbeknown to the reader, absent words are to be read into cl.52.01.
57 In any event, I think it is quite clear that cl.52.01 is not intended to be a policy neutral restatement of s.18 in a different drafting style. The opening words of s.18(1) contemplate planning scheme provisions that will be different to itself. In fact, as I understand it, cl.52.01 deliberately imposes legislative alterations based on changed policy. Clause 52.01 deliberately creates a situation where it, together with a schedule, will remove the discretion as to whether a requirement is made, as well as the secondary discretion, where a requirement is made, as to the amount of the requirement.
58 Mr. Callander concedes this second point. He concedes that cl.52.01 and a schedule, including the schedule in the Mornington Peninsula planning scheme, can and do remove the discretion that would otherwise apply by default under s.18(1) SD Act. Section 18(1) allows anything between zero and 5% of the site value whereas cl.52.01 and the schedule in this planning scheme impose a flat 5% but no discretion for less. That is hardly a policy neutral translation.
59 Once it is appreciated that we are not dealing here with a policy neutral translation the problem arises for Mr. Callander as to why any particular provision in cl.52.01 should be read as if it was.
60 He does not suggest that we are not dealing with a subdivision. Obviously there is a subdivision, as all the documents including the permit and the plan of subdivision attest. He says that what has happened amounts to a consolidation of four lots and subsequently a subdivision of the consolidated area into two lots. Prior to the SD Act that is exactly what would have been required to achieve the result sought by the beneficiaries of the will. Under that regime there could be no doubt that the second dealing was a subdivision. The SD Act, as a matter of convenience, enables the two things to be achieved under the one dealing, although I doubt that that changes the essential nature of the matter being first of consolidation and then a subdivision.
61 Whether that be so or not, as I have observed, Mr. Callander does not deny that we are dealing with a subdivision. Indeed, his willingness to accept deferred payment of a public open space contribution in relation to lot 2 under the s.173 arrangement appears to concede that we are dealing with a subdivision, and furthermore, a subdivision in relation to which a public open space contribution is payable.
62 It is contended that condition 6 is unreasonable and unfair, particularly as four lots will be translated into two lots. In fact that is the legal effect. The practical effect even at this stage is still a subdivision that de facto will lead to at least one additional dwelling in as much as Mr. Fox apparently proposes to build a house for his son on lot 2. It does not alter, or hardly alters the subdivisional potential of the whole parcel.
63 The question is what does the law provide? It is not whether it is unreasonable or unfair. That could only arise if there was a discretion. If there is no discretion, then it is a matter of applying the law as it stands. I have no power to change it, whether or not I think it is unreasonable or unfair. For cases that provide examples to this effect see Grochowski v. Glen Eira CC [2004] VCAT 602 [8] and Parsons v. Glen Eira CC [2006] VCAT 645 [35] - [36].
64 I think it is true that greater flexibility and more discretion enables what might be described as a more fine grained degree of equity than if the relevant statutory provisions allow less flexibility. Of course, the ultimate in mathematical equity, or a descent to the finest distinctions, may lose reasonableness under layers of complication. It is not for me to decide that the law is wrong in the balance it strikes between flexibility on the one hand and clarity and certainty on the other. It is clear that cl.52.01 strikes a different balance to s.18 SD Act. The removal of s.18 discretions means a simpler and clearer regime with no scope for arguments, for example, as to whether a requirement should be imposed at all, and if so, as to how great the requirement should be up to a limit of 5%. I think that is the intention of the new provisions in the planning scheme made under the PE Act. Section 18 SD Act defers to them, and only supplies a default where they have not been implemented.
The Second Question: Does the Exemption Apply?[8]
65 As to Mr. Callander's second question, I have said enough already to make it clear why I consider the exemption that can apply in relation to two lot subdivisions does not apply in this case.
The Third Question: Is There A Discretion To Defer Payment?[9]
66 Mr. Callander contends that there is a discretion in the responsible authority to allow a payment deferral in relation to lot 1 similar to that allowed by condition 9 in relation to lot 2. I have already explained why I consider this distinction between lots 1 and 2 to be a mistake. The 5% applies to the site value of all the land being subdivided.
67 I can find no basis for this so-called "discretion". I see nothing in the planning legislation to grant it. I doubt that this part of condition 9 is a relevant condition. It does not, as I see it, control or qualify the permission being granted. Rather it is an imposition by the responsible authority upon itself of restrictions in relation to how it will receive public monies. In fact, not only how and when it will receive them, but even to the extent of creating doubt as to whether it will receive them. It is always possible that lot 2 will not be further subdivided, in spite of the unlikelihood of that result; or that it might not be so subdivided for 100 years or more. Generations for whose benefit this public money is to be provided will be dead before it comes to hand.
68 Whether the applicants now have rights under the s.173 agreement, considered as a deed, would be a matter for the courts. I see no justification at all for condition 9 or the part of the s.173 agreement that flows from it.
69 I consider that condition 6 as it stands is inconsistent with and thus repugnant to the law of Victoria as stated in cl.52.01. As such it should be reworded to accord with the law or simply deleted. In fact deletion would have the same result as a correct rewording as the applicants are bound by cl.52.01, whether or not there is a condition in the permit to that affect.
70 Condition 9a, at least insofar as it fails to refer to all of the land being subdivided into two parts, and insofar as it considers part of it separately, is also inconsistent with cl.52.01 and repugnant to it. I do not think it is a valid part of the condition.
71 This case could conceivably be the occasion for making declarations pursuant to s.124 of the Victorian Civil and Administrative Tribunal Act 1998. However, that power is limited to presidential members.
72 The effect of cl.52.01 is to impose a public open space contributions of 5% of the site value of the whole of the land being subdivided. That is the law. It arises from cl.52.01. Purported conditions 6 and 9 do not and cannot change that situation.
_________________
RUSSELL BYARD
SENIOR MEMBER
[1] In both of those cases the applicant is Anne Patricia Tucker. In neither of those cases was there any need for an amendment as was made in this case.
[2] The actual terms of conditions 6 and 9 are to be found below in paragraph 43.
[3] The memory of Mr. Callander, who appeared for the applicant, failed him on this point. He based an argument on the proposition that the LG Act had specified a flat 5% (whereas it actually said not more than "one-twentieth part"), without recalling that this was up to 5%, and not a flat rate of 5%. He thought that the notion of there being a scale between zero and 5% was imposed by court or tribunal decisions in relation to a provision that merely set 5%. The true situation is that the LG Act always said "not greater in area than one-twentieth part of the total area of the land" and "an amount not greater than one-twentieth part of the site value of the said land".
[5] Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
[6] The condition goes on in its paragraphs (b) to (h) inclusive to specify other requirements to be covered by the s.173 agreement. These other matters are not relevant for present purposes.
Tucker
Mornington Peninsula SC No 3 [2006] VCAT 1780