1. The Application is amended as follows -
   • For the name of the Applicant, substitute 'VABDS Developments Pty Ltd'.
   • For the name of the Applicant in the application to Mildura Rural City Council for certification of a plan under the Subdivision Act 1988, substitute 'VABDS Developments Pty Ltd'.
2. The decision of the Mildura Rural City Council is set aside. The following plan of subdivision is certified in accordance with section 6 of the Subdivision Act 1988 -
   • The plan of subdivision prepared by Robert Bruce Freeman Licensed Surveyor No PS 537861A sheets 1, 2 and 3 ref 6826/3 version 2
3. The Mildura Rural City Council is directed to issue the certified plan of subdivision to the Applicant, in the form prescribed in regulation 31 of the Subdivision (Procedures) Regulations 2000.

1. The Application is amended as follows -
   • For the address or description of the land, substitute 'Lot 1 PS 445674L, Karadoc Avenue, Irymple'.
2. Pursuant to clause 62 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the failure of the Applicant to comply with section 69(1) of the Planning and Environment Act 1987 to apply for an extension of time of Permit P04/379 within three months of the expiry of the permit on 1 April 2007 is disregarded. The Tribunal has jurisdiction to determine the Application.
3. Pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998, the time for lodging the Application is extended until and include the date on which the Application was lodged with the Tribunal, namely 24 December 2010.
4. The decision of the responsible authority is set aside.
5. The time pursuant to condition 20 in Permit 04/379 within which a plan under the Subdivision Act 1988 must be certified is extended to 18 May 2012.

Ms Joanne Lardner of counsel, instructed by Norton Rose. She called the following witness:

• Mr Michael Freeman, land surveyor, Freeman and Freeman Land Surveying

Subdivision of two parcels of land into, respectively, 64 residential lots (between about 540 sq m and 1,100 sq m) and 14 residential 14 lots (between about 460 sq m and 590 sq m)

Applications under s 81(1) of the Planning and Environment Act 1987

Applications under s 40(1) of the Subdivision Act 1988

Development Contributions Plan Overlay Schedule 2 (DCPO2)

The land comprises two parcels and is located on the west side of Karadoc Avenue, between Fourteenth and Fifteenth Streets, Irymple. The land is irregular in shape and has a total area of about 6.3 ha. The land is generally vacant, although one lot has been excised from the larger parcel and is now developed for a dwelling. The land is generally flat, but falls slightly to the north-west. Land to the north, east and south is zoned and partly used for residential use. Land to the west is zoned and used for business use.

Kantor v Murrindindi Shire Council (1997) 18 AATR 285

Central Portland Hotel Pty Ltd v Glenelg SC [2006] VCAT 1205

Minawood Pty Ltd v Bayside CC [2006] VCAT 2097

Roy Costa & Associates v Mildura Rural CC [2008] VCAT 1774

1. This proceeding concerns a dispute primarily about the kind of infrastructure (especially drainage infrastructure) the Council requires the Applicant to provide for the Applicant's residential subdivision of two abutting parcels of land in Karadoc Avenue in Irymple, just south of Mildura.

1. The Applicant has made four Applications to the Tribunal. Two Applications relate to the first parcel of land (the 14 lot parcel) and two Applications relate the second parcel of land (the 64 lot parcel).

1. The context for the two Applications relating to this parcel is -
   • On 1 April 2005, the Council granted permit 04/379 to subdivide this parcel into 14 lots (the 14 lot permit).
   • On 13 September 2005, the Applicant applied under the Subdivision Act 1988 (the SD Act) to the Council to certify a plan of subdivision (the 14 lot plan) to create 14 lots (the 14 lot certification application). The Council failed to decide this application.
   • On 1 April 2007, the 14 lot permit expired. On 13 December 2010, the Applicant applied to extend the 14 lot permit. As the application to extend was lodged more than three months after the permit expired, the Council had no power to decide the application.
   • On 20 December 2010, the Council decided that, if it had had the power to decide the application, it would have refused an extension.
2. The two Applications relating to this parcel are -
   • An application under s 81(1) of the Planning and Environment Act 1987 (the PE Act) to review the Council's failure to extend the 14 lot permit (Application P3674/2010).
   • An application under s 40(1) of the SD Act to review the Council's refusal to certify the 14 lot plan (Application P1524/2009).

1. The brief context for the two Applications relating to this parcel is -
   • On 18 May 2005, the Council granted permit 01/298 to subdivide this parcel into 64 lots (the 64 lot permit).
   • On 3 August 2007, the Council extended the 64 lot permit for one year with the effect that the plan of subdivision was required to be certified by 18 May 2008.
   • On 27 September 2007, the 64 lot permit was amended to, inter alia, amend the internal road layout, to increase the number of lots from 61 to 64, and to increase the size of the retarding basin.
   • On 20 December 2007, the Applicant applied under the SD Act to the Council to certify a plan of a stage of the subdivision (the two lot plan) for part of this parcel to create one residential lot and a balance lot (the two lot certification application). The Council failed to decide this application.
   • The permit expired on 18 May 2008. On 28 July 2008, the Applicant applied to extend the 64 lot permit. On 14 November 2008, the Council refused to extend the permit.
2. The two Applications relating to this parcel are -
   • An application under s 81(1) of the PE Act to review the Council's refusal to extend the 64 lot permit (Application P1499/2009).
   • An application under s 40(1) of the SD Act to review the Council's refusal to certify the two lot plan (Application P1511/2009).
3. After considering the submissions of the parties and the evidence, and the relevant law, I have decided to extend the two permits, to certify the 14 lot plan, and to refuse to certify the two lot plan. My reasons follow.

1. Local policy under the Mildura Planning Scheme (the scheme) refers the need to provide more housing to provide for additional population growth at Irymple. It also refers to the need to provide appropriate infrastructure (including drainage infrastructure) when releasing urban land, and for Council to recover its infrastructure costs.

1. Both permits required -
   • Drainage infrastructure in accordance with an interim drainage arrangement agreed by the then rural drainage authority for both parcels, the First Mildura Irrigation Trust (the Trust).
   • Construction of all internal roads or common property driveways.
   • Construction of the Karadoc Avenue abuttals.
   • Provision of water and sewerage services to the satisfaction of Lower Murray Water (LWM).
2. The 14 lot permit required payment of a 5% public open space contribution, in lieu of a reserve. The 64 lot permit required the setting aside of a 6,125 sq m reserve for drainage and public open space, comprising about 10% of the land in the subdivision.

1. A threshold legal issue is whether the Tribunal has jurisdiction to extend the 14 lot permit. As stated earlier in these reasons, the Applicant applied to the Council to extend that permit some four years and eight months after that permit expired, which is well outside the three month grace period under the PE Act. The Council decided it would have refused the application if it had been able to do so. I follow current authority in holding the Tribunal does have that jurisdiction.[1]
2. It is a matter for the Tribunal's discretion as to whether the permits are extended under s 81(1) of the PE Act.[2] The principles for the exercise of that discretion are set out in Kantor v Murrindindi Shire Council.[3]

1. Well before the grant of the two permits, the Council was aware of the difficulties in draining land at Irymple, including the two parcels of land.
2. Before granting both permits, the Council informed the Applicant of the drainage infrastructure problems but invited it to consult the Trust about an interim arrangement involving the Trust's drainage infrastructure. The advice was given several years after the Applicant applied for the 64 lot permit.
3. The Trust subsequently agreed that the subdivision of both parcels could proceed by interim use of the Trust's drainage infrastructure, until the Council's planned drainage infrastructure upgrade for Irymple was complete. The Trust's agreement was subject to a 'formal agreement prepared by the Trust' and the Council's granting of specified indemnities.
4. The Council went on to support the interim arrangement, to grant the indemnities and to grant both permits.
5. Condition 1 of both permits required formal agreement with the Trust concerning the interim drainage arrangements before the plans were certified. There was no agreement before the Trust was wound up and its functions transferred to LMW on 19 August 2008. The Trust had insisted that it would prepare those agreements and it never did so, to the Applicant's disadvantage. This contributed to the Council's failure the certify the plans before the permits expired.
6. The Applicant had applied to certify both plans before the permits expired.
7. Conditions 3 and 4 of the 64 lot permit respectively require that, before certification of a subdivision plan, a Salinity Management Plan and 'road design, streetscape design and drainage design' plans be prepared to the Council's satisfaction.
8. Although the Applicant did not prepare either of those plans until after applying to the Tribunal, part of this delay may be attributed to the fact as time went by the Trust's interim drainage arrangement became less and less relevant as the Council's drainage upgrade neared completion.
9. The Applicant overlooked the expiry of the 14 lot permit and its principal excuse was that it was distracted by the Council's failure to certify both plan within the prescribed period. The Applicant, it must also be said, contributed to delays by its consultants failing to promptly prepare various plans at various periods on account of pressure of work.
10. On balance, I find the delays in commencing the subdivisions in both permits and in applying to extend the 14 lot permit are sufficient explanation and do not prevent the extension of the time to apply to the Tribunal in respect of the 14 lot permit and do not prevent the extension of both permits.[4]

1. The Council relies on the following changes -
   • The commencement of DCPO2 on 15 November 2007 and the incorporation of Development Contributions Plan No 2 (the DCP).into the scheme on this date. DCPO2 applies to both parcels.
   • The approval of a development plan (the DP) under DPO1 on 13 December 2007. The DP applies to both parcels.
2. I accept that both changes are potentially relevant changes.
3. Both changes occurred after the two permits were granted.[5] The 14 lot permit expired before both changes and the 64 lot permit expired after both changes.

1. After the Applicant submitted the two plans for certification and before expiry of both permits, the Council, in early 2007, endorsed the DP. However, the Council delayed approving the DP until DCPO2 commenced. The stated reason was so that permits granted in accordance with the DP could validly include conditions requiring development contributions in accordance with the DCP.
2. On 15 November 2007, DCPO2 commenced with the effect that both parcels became subject to the DCP. The DP was approved a month later.
3. The DP does not operate to prohibit the subdivisions. The DP supports development of both parcels in accordance with the permits, stating it is 'committed development'.
4. The DP refers to drainage issues and to the need for development to provide stormwater management areas to connect to existing infrastructure when drainage upgrades are completed, and that funding for those upgrades will be supported by development contributions. The DP specifically refers to the need for a small retarding basin partly on the 64 lot parcel (and partly on other adjoining land to the north) and a larger basin nearby on the south-west side of Fifteenth Street.
5. The DP provides for a detailed subdivision layout of the 64 lot parcel. The Council subsequently amended the 64 lot permit to authorise a modified road and lot layout. The 14 lot permit is, and the 64 lot permit remains, generally in accordance with the DP, as required by DPO1. The subdivisions will now be drained in accordance with infrastructure referred to in the DP (including the retarding basin on the Applicant's land), even though that is not the arrangement envisaged under the permits.
6. In short, the DP is no basis for refusing extension of the permits.

1. For residential development of both parcels, the DCP sets (as at 1 July 2009) contributions for development infrastructure of $8,729 per dwelling, comprising contributions for roads, drainage, open space, educational facilities and bicycle paths. Drainage and open space comprise about 60% and 30%, respectively, of this amount. The DCP also requires contributions for community infrastructure of $1,053 per dwelling.
2. If those contributions were payable for residential development of both parcels, about $627,000 and $137,000 would have to be paid for the 14 lot permit and the 64 lot permit, respectively.[6]
3. I heard extensive argument about -
   • The intention and effect of DCPO2 and the DCP.
   • The nexus between the subdivisions and the contribution items.
   • Whether the contributions could be lawfully levied when the permits were granted.
   • The effect of s 46N of the PE Act.[7]
   • The effect of amendment to the 64 lot permit, shortly before commencement of DCPO2.
   • Whether the payment of contributions in respect of both permits would now amount to 'double dipping'.
4. I have decided that DCPO2 is not a relevant change of policy having regard to its terms. Clause 4.0 of DCPO2 provides -

Land or development excluded from Development Contributions Plan

Applicants of all development types anywhere in the development contributions plan area must be liable for development contributions, apart from residential development that has obtained a planning permit prior to incorporation of this development contributions plan in the scheme.

1. The subdivisions allowed by both permits are 'residential development'. Both permits were granted or 'obtained' before 15 November 2007 when the DCP was incorporated into the scheme.
2. It was submitted on behalf of the Council that clause 4.0 does not apply to the permits because both permits have expired. Although they have expired, if the Tribunal grants extensions, they will remain in force. The Council's submission effectively denies the application of the exemption if a review of a decision to refuse an extension is not finalised before expiry of the permit. The express words of the clause do not admit of this construction.
3. The DCP does not refer to this being the intention of the clause.[8] In fact, the DCP appears to have been drafted with the contrary intention. The DCP is dated 9 October 2006. On that date, the two permits were in force. The drafters of the DCP were then on notice that no contributions would be obtained for residential development of the two parcels (and any other residential development for which permits had been granted). The drafters must have fixed the contributions having regard to what permits qualified for the exemptions.
4. As well, and on policy grounds, I would not construe the clause as submitted by the Council because it could allow the Council to conduct litigation in such a way to defeat the exemption.
5. I therefore construe the clause so that the exemption extends to relevant permits that have been lawfully extended.[9]

1. The time that has elapsed since the grant of the permits does not bear on refusal of the extensions, despite the fact that both permits were granted nearly six years ago.
2. The 64 lot permit has been once extended for only one year. The Applicant applied for an extension two months after the permit expired, immediately after the Council brought the expiry issue to the Applicant's attention.
3. This is within the three month grace period that is recognised by the PE Act. The Council refused to extend the permit some four months later. The Applicant failed to apply to the Tribunal to review that failure until eight months after that. In orders dated 14 October 2009, the Tribunal extended the period in which the application to review may be lodged and gave detailed reasons.
4. I adopt my earlier remarks in these reasons about the Applicant's failure to apply to extend the 14 lot permit within the three month grace period after the 14 lot permit expired.

1. In the circumstances, the original time period to commence development was inadequate. Both planning permits required commencement within two years. The 64 lot permit was extended by only one year. The Applicant applied to certify both the 14 lot plan and the two lot plan before both permits expired. Time dragged on once those applications for certification had been made, but the Council was in part responsible for those delays by not deciding those plans within the prescribed period.

1. Despite the changes of policy relied on by the Council, the Council concedes that fresh permits would be granted if new applications were made. The permits would be different, not in the sense of the layout of the road, lots and joint drainage basin and public open space reserve, but in the sense of omitting the conditions relating to the interim drainage arrangement and inserting a condition requiring payment of development contributions in accordance with DCPO2.

1. The Kantor principles include whether there is any evidence of warehousing the permits, whether any intervening circumstances bear upon refusal of the extensions, and whether economic issues have affected progress. On the evidence, these do not militate against extension. In particular, the Council's drainage infrastructure upgrade, which was completed before the 64 lot permit expired is not, in itself, adequate grounds to refuse extension.

1. The Council tendered a copy of a recent letter from LWM to the Tribunal, the original of which had not yet reached the Tribunal's file. LWM is not a party to the proceeding. LWM had not served a copy on the Applicant. The letter stated that LWM opposed extension of the permits 'until ... a detailed drainage and infrastructure assessment ... is completed' and because the earlier Trust arrangements 'may impact on normal operations of [LWM's] subterranean drainage system'. I have given no weight to this submission.

1. Applying the principles in Kantor, I would exercise discretion to grant extensions to both permits.

1. The Council and the Tribunal are bound by s 6 of the SD Act in deciding certification of a plan of subdivision.
2. Sub-sections 6(1) and 6(2) relevantly provide -

(1) The Council must certify a plan within the prescribed time if -

(a) the plan complies with this Act, the regulations, and those requirements of the planning scheme and any permit that relate to the boundaries of roads, lots, common property and reserves and the form and content of the plan; and

(c) every referral authority has given consent; and

(d) all alterations required by referral authorities have been made; and

(2) If the conditions in subsection (1) are not met, the Council must refuse to certify the plan and give its reasons in writing to the applicant within the prescribed time.

1. The plans cannot be certified unless and until the permits are extended. As I will order those permits be extended, it is open to me to certify both plans.
2. Condition 1 of both permits is the same. It provides -

Prior to certification, formal agreement between the permit holder and the relevant authority supporting the interim stormwater discharge arrangement is required.

1. Does condition 1 still operate as a legal barrier to certification of either plan? There are some interesting arguments as to whether condition 1 comes within the terms of a s 6(1) requirement, but I do not need to decide that. Time has passed to implement the interim drainage arrangement. The Council's upgraded drainage infrastructure was completed by mid 2008. Drainage from development of both parcels must now, as a matter of practicality, use that upgraded infrastructure and must not use the Trust's (or LWM's) rural drainage infrastructure.
2. Condition 1 is now otiose and is no barrier to certification of either plan.

1. The Trust never formally consented to certification of the two lot plan. On 24 January 2008 and within the period provided for under the SD Act, it refused to consent on grounds relating to the payment of its fees and relating to the creation of a landlocked lot. The Applicant later paid those fees. It also informed the Trust that the lot was not in fact landlocked having regard to the internal road on the adjoining subdivision that was constructed to the boundary of the 64 lot parcel. There was no reply from the Trust to that response.
2. I therefore find the Trust refused consent to certify this plan. The Application to the Tribunal sought review of the Council's failure to certify the plan under s 40(1) of the SD Act and did not seek a review of the Trust's failure to consent to certify the plan under s 40(2) of the SD Act. Accordingly, the Trust (or rather, its successor, the LWM) was not a party to this proceeding. I therefore cannot review the Trust's refusal to consent.
3. Nevertheless, I am unable to certify the two lot plan because it does not comply with all the requirements of the 64 lot permit that relate to roads, lots and reserves, as provided for under s 6(1) of the SD Act.
4. The Salinity Management Plan, required Condition 3 of the 64 lot permit, was not prepared and forwarded to the Council until 2 February 2011. The Plan must be referred to the Department of Sustainability and Environment. The plans for 'road design, streetscape design and drainage design', required by condition 4 of the 64 lot permit, were not prepared and forwarded to the Council until 14 February 2011. These plans relate to full construction of both the 64 lot permit and the 14 lot plan.
5. By the time of the hearing, the Council had not had reasonable time to consider both these plans.
6. The submission of these plans so close to the hearing of this proceeding means I am barred by s 6 of the SD from ordering the certification of the two lot plan. I must allow the Council a reasonable time to consider and decide the plans submitted under conditions 3 and 4.
7. I will therefore refuse the two lot certification application. I will leave it to the parties to discuss and resolve the two plans submitted in accordance with conditions 3 and 4 of the 64 lot permit. I will also leave it to the Applicant to seek to obtain the consent of LWM to the certification of the plan.
8. If the Council approves the plan under condition 4, it may well assist in obtaining LWM's consent. If LWM refuses or fails to consent, the Applicant may apply to the Tribunal under s 40(2) of the SD Act. If the Council fails to approve the plans under conditions 3 and 4, the Applicant may apply to the Tribunal under s 149 of the PE Act.

1. The 14 lot permit does not contain conditions to the same effect as conditions 3 and 4 of the 64 lot permit. The Applicant has no outstanding requirements under the permit in relation to submission of further plans.
2. I find, relying on the Trust's correspondence dated 22 November 2005, that the Trust had consented to certification of the 14 lot plan before its functions were transferred to LWM. I am informed there are no other outstanding consents from referral authorities.
3. I will therefore order the certification of the 14 lot plan.

1. The plans of subdivision cannot now be certified unless and until the permits are extended. The Council has refused to extend the permits because it wants the Applicant to first pay the contributions required under DCPO2.
2. The Council knew drainage infrastructure was inadequate when both permit applications were made. Instead of refusing the applications on that basis, it encouraged the Applicant to consult the Trust about a five year interim solution using Trust infrastructure until the Council's anticipated drainage infrastructure upgrade was complete. After the interim period, the Council expected the Applicant to connect to the Council's upgraded infrastructure. The Council then granted the permits to facilitate the interim arrangement.
3. When the Council encouraged the Applicant to consult the Trust, the Council was preparing the DCP. When the DCP was incorporated into the scheme, the subdivisions were exempt from contributions.
4. Having designed the subdivisions around the interim arrangement and getting ready to proceed, the Applicant had to apply to extend the permits. The Applicant cannot now proceed with the interim arrangement and it must now use the Council's upgraded infrastructure.
5. Applying the relevant law, and balancing the relevant considerations, the permits should be extended.
6. Nonetheless, I have some sympathy for the position in which the Council finds itself. The Council did not promptly refuse the two permits years ago on the grounds there was inadequate drainage infrastructure or the development was premature. Instead, possibly for reasons of wanting to assist the Applicant or to encourage residential development at Irymple, it encouraged the Applicant to consult the Trust and find an interim drainage arrangement.
7. At the same time, the Council was preparing the DCP with the intention that developers would contribute to the cost of the drainage works the Council had decided to construct (and of other infrastructure), except for those developments for which a permit had already been obtained.
8. If it could unwind the clock, I would not be surprised if the Council would have decided to refuse the permits until the drainage upgrade was complete or the DCP was approved. The Council's decision to refuse a permit to subdivide other land in Irymple for 'out of sequence' reasons and to oppose a similar Trust interim drainage arrangement, even after the commencement of DCPO2, was upheld in Roy Costa & Associates v Mildura Rural CC.[10]
9. The Council's decision in relation to the two permit extension applications will be set aside and the permits extended. The Council's decision in relation to the 14 lot certification application will be set aside and the plan certified. The Council's decision in relation to the two lot certification application will be affirmed.

1. [1] Mutsaers v Manningham CC [2010] VCAT 1258, upheld by the Supreme Court in Harvey v Mutsaers & Manningham CC [2011] VSC 23.

[2] Minawood Pty Ltd v Bayside CC [2006] VCAT 2097 at [5].

[3] (1997) 18 AATR 285 (Supreme Court, Ashley J); Central Portland Hotel Pty Ltd v Glenelg SC [2006] VCAT 1205 at [51]- [52].

[4] At the hearing, the Council did not oppose the Tribunal disregarding the Applicant's failure to bring the Application to extend the 14 lot permit within three months after the 14 lot permit expired, under cl 62 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

[5] Although when both permits were granted, the Council had exhibited an amendment to the scheme to introduce DCPO2.

[6] The Council submitted that the contributions now payable would be offset by the value of the drainage works undertaken by the Applicant 'in the ordinary way' for the land in the retarding basin, the earthworks to create the basin, and the cost of outfall connection to Fifteenth Street. In the end, the existence and quantum of any offsets was not determinative, having regard to my findings about clause 4.0 of DCPO2.

[7] I briefly record my view that s 46N of the PE Act only applies to the grant of a permit after the coming into operation of the DCPO and does not apply to amendments or extensions to a permit.

[9] The Tribunal, in reasons for its interim orders in this proceeding dated 14 October 2009 at paragraph 17(f), stated that one of the key issues for the proceeding would be whether the conditions of the permits adequately address infrastructure provision notwithstanding DCPO2. It follows from these reasons that ultimately that matter was not a key issue.

[10] [2008] VCAT 1774.