LEGISLATION - interpretation or application of statutory provision

Planning and Environment Act 1987 ss 87, 114, 173, 182, 184, 149B; Transfer of Land Act 1958 s 42; effect of subsequent registration of section 173 agreement after change of ownership; whether permit granted inconsistently with unregistered section 173 agreement should be cancelled; ambit of s184 - whether inappropriate for agreement to continue to apply to land

A section 173 agreement had been executed in 2000 over a number of lots, purporting to limit further subdivision before 2015. The responsible authority did not register the agreement straight away. In 2001, the Kienes purchased one of the lots with knowledge of the unregistered agreement. In 2006, with the agreement still not registered, the Kienes sought to subdivide that lot. On an application for review, the Tribunal in 2008 granted a permit for a four-lot subdivision. The responsible authority belatedly registered the agreement in May 2008 after the grant of that permit.

The responsible authority sought to cancel the permit and/or enforce the agreement. The Kienes argued that the agreement was not enforceable against them and/or that the agreement should be removed from the land.

The decision discusses at some length the status of a section 173 agreement vis-à-vis property law rights and obligations. It expresses a view that a section 173 agreement is a creature of statute, established to play a specific role in the planning system in Victoria. The detailed regime for section 173 agreements proscribed by the Planning and Environment Act 1987 is such that ordinary principles of property law do not automatically apply to these agreements, and certainly not in a manner that might conflict with their statutory charter. These provisions over-ride and impliedly vary or repeal the indefeasibility principles in s 42 of the Transfer of Land Act 1958, and allow for the registration and enforcement of a section 173 agreement after a change of ownership.

The section 173 agreement was not enforceable against the Kienes during the period it was not registered. The agreement did run with the land and become enforceable against the Kienes after its belated registration.

However, in certain limited circumstances under s 184 of the Planning and Environment Act 1987, the Tribunal has a discretion to amend an agreement to remove its application from land where, having regard to any relevant permit, the Tribunal considers it inappropriate that the agreement should continue to apply to the land and the owner.

In the circumstances of this case, given the seven and a half year delay by the responsible authority in registering the agreement, the temporary nature of the limitation on further subdivision, and the grant of the intervening permit for the four-lot subdivision after a consideration of relevant planning issues, it was inappropriate that the agreement continue to apply to the land. An order was therefore made under s 184 of the Planning and Environment Act 1987 to amend the agreement to remove its application to the land and the Kienes.

Planning and Environment Act 1987 ss 87, 114, 173, 182, 184, 149B; status of section 173 agreement vis-à-vis property law rights and obligations; whether agreement enforceable against subsequent owner whilst unregistered; whether permit granted inconsistently with unregistered agreement should be cancelled; ambit of s87(1)(a); whether a mis-statement to the Tribunal is a material mis-statement 'in relation to the application for permit'; ambit of s184; whether agreement should be removed from land; effect of subsequent registration of section 173 agreement after change of ownership; whether agreement capable of enforcement against new owner following belated registration; exercise of discretion generally.

In Applications P1904/2008, P1906/2008 and P2624/2008:

Wodonga CC v Kiene (includes Summary) (Red Dot) [2009] VCAT 81

1. In Application P1467/2008, the application to cancel Permit No. 2006/208 pursuant to s 87 of the Planning and Environment Act 1987 is dismissed.
2. In Applications P1904/2008 and P2624/2008, the applications for declarations pursuant to s 149A and/or s 149B of the Planning and Environment Act 1987 are dismissed.
3. In Application P1906/2008, the application pursuant to s184 of the Planning and Environment Act 1987, to amend a section 173 agreement to remove the subject land from the application of the agreement, is allowed. The land at 21 John Boyes Drive, Baranduda, being Lot 5 on PS 428798N and described in Certificate of Title Volume 10554 Folio 652, is removed from the application of the agreement dated 14 November 2000 made between the Albury-Wodonga Development Corporation (as the then owner of the land) and Wodonga City Council.
4. In Application P1618/2008, the application for an enforcement order pursuant to s 114 of the Planning and Environment Act 1987 is dismissed.
5. Costs are reserved. Any application for costs must be made within 60 days of the date of this order.

Colin Taylor, solicitor, instructed by Charles Morgan of Nevin Lenne & Gross, solicitors

1. The tangled web of these proceedings does not necessarily reflect well on either party, and has complicated the achievement of what began as a relatively straightforward application of planning policy.
2. The proceedings do however raise some interesting, complex, and perhaps important, issues of principle in relation to the status of agreements under s173 of the Planning and Environment Act 1987 - in particular, the effect and enforceability of an agreement against a subsequent owner both prior to and following registration of the agreement.

1. The Valley Views Estate at Baranduda is about 8 kms south-east of Wodonga. It forms part of an area that had been identified by the Albury-Wodonga Development Corporation ('the Corporation') in the 1970's for extensive urban development, as part of a strategic initiative to facilitate massive growth in the Albury-Wodonga region. Although this policy initiative was later dismantled, the land remained in the ownership of the Corporation and retained a residential zoning.
2. In the late 1990's, negotiations between the Corporation and Wodonga City Council ('the Council') led to subdivision of the land into large 'rural residential' lots, intended to be supported by section 173 agreements limiting further subdivision (which would otherwise have been permissible under the residential zoning) until services were available and demand for more intensive urban development was established. This was not expected to arise before 2015.
3. In particular, the Council on 4 May 2000 issued to the Corporation an amended planning permit 99/084, allowing a 39 lot subdivision of the Valley Views Estate. Condition 11 of that permit required the Corporation to enter into an agreement with the Council under s 173 of the Planning and Environment Act 1987 capable of dealing, amongst other things, with the temporary limitation on future subdivision.
4. Given the staging of the Valley Views Estate subdivision, three agreements were prepared in substantially similar form, each purporting to prevent identified parts of the estate from being further subdivided prior to 1 January 2015. One such agreement, covering lots 29 to 39, was executed by the Corporation and Council, appended to contracts of sale for those lots, and registered with the Land Registry in relation to those lots. Another, covering lots 11 to 28 was appended in an unexecuted form to contracts of sale for those lots. Its status remains unclear, although it has apparently never been registered in relation to those lots.
5. The third section 173 agreement is the one relevant to this proceeding. This agreement covers lots 1 to 10 in the Valley View Estate, and was executed by the Corporation and the Council on 14 November 2000 whilst those lots were all still in the ownership of the Corporation.
6. Peter Charles Kiene and Jennifer Anne Kiene ('the Kienes') purchased Lot 5 (now known as 21 John Boyes Drive) from the Corporation on 29 August 2001. They signed an acknowledgement of having received a vendor statement as part of the contract documentation. That vendor statement contained a copy of the executed section 173 agreement for lots 1 to 10. It is not clear the extent to which the Kienes focussed on this agreement, but they certainly had notice of it from this time.
7. On 18 November 2006, the Kienes made application for a planning permit to subdivide their Lot 5 into 4 further lots. On 28 February 2007, the Council refused the permit application, and the Kienes lodged an application for review to this Tribunal.
8. The application for review P903/2007 was heard by the Tribunal (Member Hadjigeorgiou) in September 2007. The Tribunal was made aware of the existence of the section 173 agreement, and the fact that it was still not then registered some 7 years after its execution. Importantly, it is common ground that the Kienes' planning advocate, in his written submissions to the Tribunal, also made an assertion that the section 173 agreement had not been disclosed to the Kienes at the time of purchase. He asserted that they were unaware of the section 173 agreement until making their planning application for the 4-lot subdivision of Lot 5, and were not bound by it.
9. By order dated 11 January 2008 (corrected on 22 April 2008 for reasons not relevant to this proceeding), the Tribunal set aside the Council's refusal and directed the issue of a permit for the 4-lot subdivision of the subject land. The Tribunal's order was accompanied by detailed written reasons ('the earlier Tribunal decision'). The Council subsequently issued Permit 2006/208 ('the Permit') on 19 May 2008 in compliance with the Tribunal direction.
10. Through unrelated proceedings, the Council became aware on 13 May 2008 that the section 173 agreement had been disclosed to the Kienes at the time of their purchase of Lot 5 from the Corporation - contrary to the Kienes' advocate's assertion to the Tribunal. On 23 May 2008, the Council issued the first of the present proceedings. On 27 May 2008, the Council lodged an application with the Land Registry seeking to register the agreement in relation to lots 1 to 10 (including the Kiene's Lot 5), and the agreement has been registered from that date.

1. There are now five proceedings before the Tribunal:
   • P1467/2008 - an application by the Council under s 87 of the Planning and Environment Act 1987 seeking to cancel the Permit allowing the 4-lot subdivision, based on the incorrect or misleading submissions made to the Tribunal about the status of the section 173 agreement and the Kienes' knowledge of it;
   • P1618/2008 - an application by the Council under s 114 of the Planning and Environment Act 1987 seeking to now enforce the section 173 agreement against the Kienes;
   • P1906/2008 - an application by the Kienes under s 184 of the Planning and Environment Act 1987 seeking to amend the section 173 agreement to remove their land from the application of the agreement; and
   • P1904/2008 and P2624/2008 - two applications by the Kienes, under s 149A and/or s 149B of the Planning and Environment Act 1987, seeking various declarations, including a declaration that the section 173 agreement does not or should not apply to the Kienes' land, and that the covenants in the agreement do not attach to the land or bind the Kienes as successors-in-title.
2. Mr Montebello for the Council indicated that the Council's two proceedings sought remedies in the alternative, and that the enforcement proceeding only needed to be determined if the other proceedings were unsuccessful. Mr Taylor for the Kienes indicated that the Kienes' three applications were overlapping, and cumulatively sought to vest the Tribunal with jurisdiction to resolve the issues in dispute.

The Section 173 agreement

1. The relevant section 173 agreement was executed by the Corporation and the Council on 14 November 2000 whilst those lots were all still in the ownership of the Corporation, and the Kienes received a copy of the agreement as part of the vendor statement and contract of sale documentation for Lot 5 in August 2001. Within the agreement are the following provisions:

• The Recitals provide relevant background information explaining the basis for the agreement, with Recital F noting that it is not appropriate that any lot be further subdivided prior to 1 January 2015;
  • In clause 1, "the owner" is defined to mean the person from time to time registered or entitled to be registered as proprietor of the land or any part of the land, and "the land" is defined to mean lots 1 to 10 inclusive - therefore clearly including Lot 5;
  • The agreement contains two consecutive clauses both numbered as clause 3. Nothing turns on this error. In the first clause 3, the parties agree to treat the agreement as an agreement under s 173 of the Planning and Environment Act 1987. In the second clause 3, the Agreement comes into force and effect from its date (i.e. 14 November 2000) and shall remain in force indefinitely;
  • Clause 4 relevantly provides:

[4] The Corporation enters into this agreement with the understanding and that it is the intention of the Council to apply to register the agreement with the Registrar of Titles against the title to the land and that upon registration the burden of the covenants shall run with the land pursuant to section 182 of the Act and bind the owners from time to time of each and every part of the land to the intent that the council may enforce the agreement against any person deriving title from the Corporation ...

[5] The Owner from time to time of the land and each and every part of the land agrees and acknowledges:
>
> a) that the land shall not be subdivided prior to 1 January 2015.
>
> ...

[6] Without limiting the obligations of the Corporation hereunder, the Corporation must ensure:
>
> a) that until such time as a memorandum of this Agreement is registered on the Title to the land, the Corporation's purchasers or other likely successors in Title are made aware of the obligations imposed by this agreement on the owners of the land from time to time;
>
> ...
>
> c) that if a memorandum of this agreement is not registered on the title to the land before the Corporation's purchaser becomes entitled to be the registered proprietor that the Corporation's purchaser is aware that the council reserves the right to and will register the agreement against the title to the land at any time thereafter.

1. From these provisions, there is to my mind a clear contractual intent that the agreement would operate as a section 173 agreement. There is also a clear contractual intent that the agreement would run with the land and bind future owners, but only once registered. This is consistent with ss 181(1) and 182 of the Planning and Environment Act 1987, which provide as follows:

181 Registration of agreement

(1) A responsible authority may apply to the Registrar of Titles to register an agreement relating to land other than Crown land.

...

182 Effect of registration

After the making of a recording in the Register -

(a) the burden of any covenant in the agreement runs with the land affected; and

(b) the responsible authority may enforce the covenant against any person deriving title from any person who entered into the covenant as if it were a restrictive covenant despite the fact that it may be positive in nature or that it is not for the benefit of any land of the responsible authority.

1. Clause 4 of the agreement expressly refers to s 182. For the purposes of s182(a), it is only after registration of the agreement that a covenant (i.e. in this case the temporary limitation on further subdivision) runs with the land. Until registration by the Council, the Corporation's only responsibility was to bring the agreement to the attention of purchasers and thereby make them aware of its possible future registration. The Corporation fulfilled this obligation. I will deal later in these reasons with the timing of registration of the agreement by the Council.

The status and effect of the section 173 agreement vis-à-vis property law rights

1. An issue that pervades these proceedings is the extent to which the section 173 agreement should be treated in isolation as a statutory construct, subject only to its statutory charter under the Planning and Environment Act 1987, and the extent to which other property law rights or obligations may apply. This is not necessarily an easy issue to resolve. However, given that various aspects of this issue affect various parts of the proceedings, it is appropriate to deal with this matter upfront as something of a threshold issue.
2. The issue is also complicated by the Council having now belatedly registered the section 173 agreement well after the Kienes took clear title from the Corporation, and after the earlier Tribunal decision granting the Permit.
3. Mr Taylor relied upon s 42 of the Transfer of Land Act 1958 as a basis for arguing the paramountcy or indefeasibility of the Kienes' estate as registered proprietor, and the priority of their interest over the section 173 agreement as a later registered interest. Mr Taylor argued that the failure to register the agreement before the Kienes assumed ownership of the land disentitled the Council from now enforcing the agreement against the Kienes. He also contended that the Council could not now register the agreement over the Kienes' land after the change of ownership - or at least not without their consent. As a corollary, Mr Taylor also relied upon s 43 of the Transfer of Land Act 1958 as a basis for arguing that, except in the case of fraud (which was not alleged here by the Council), notice of an unregistered interest does not affect the indefeasibility of the estate assumed by virtue of s 42. He therefore contended that the Kienes' prior knowledge of the section 173 agreement was irrelevant.
4. Mr Taylor also took me to cases such as Fitt v Luxury Developments Pty Ltd[1] as authority for the proposition that s 42 of the Transfer of Land Act 1958 applies (in the manner outlined above) to a restrictive covenant. This much is uncontroversial. For a restrictive covenant to be enforceable against a subsequent owner, that owner must have had notice of that fact through the Land Register.
5. The difficulty lies, to my mind, in attempting to extend this principle to a section 173 agreement, which is of a different character to a restrictive covenant and subject to specific provisions in the Planning and Environment Act 1987. None of the cases referred to me on behalf of the Kienes addressed this more specific issue.
6. I prefer the Council's view on this issue. To my mind, a section 173 agreement is a creature of statute subject to its own legislative framework. It allows for the enforcement of an agreement after registration 'as if' it were a restrictive covenant, but it is not otherwise a restrictive covenant or encumbrance to which s 42 of the Transfer of Land Act 1958 or the decision in Fitt directly applies.
7. In Casey City Council v Kameel[2], Macnamara DP had expressed a view that it would be offensive to the principle enshrined in s 42 of the Transfer of Land Act 1958 to enable a section 173 agreement to be registered against the title of a subsequent registered proprietor who had no notice of it. He thought s 181 of the Planning and Environment Act 1987 should be read down as being subject to the general law, and posed the question: "Why is there any reason to believe that the Registrar of Titles could or would register a dealing creating an encumbrance upon land which was not created or at least assented to by the current registered proprietor?". Macnamara DP answered this by indicating a view that the Land Registry would not record a restrictive covenant in such a manner, and expressed a belief that the Registrar would take a similar approach to a section 173 agreement.
8. An appeal to the court, in Kameel v Casey City Council[3], was decided on other grounds. Justice Byrne declined to deal with the issue of subsequent registration after a change of ownership, nor whether consent to subsequent registration was required, on the basis it was of no utility to the particular case before him. Given the Act was silent on this issue, he was reluctant to provide an answer that might affect the practice of the Land Registry without assistance from that office[4].
9. My difficulty with the view of Macnamara DP in the initial Kameel decision is that the practice of the Land Registry is that it does not take a 'similar approach' to restrictive covenants (as he had surmised), and actually does (including in this case) register section 173 agreements after a change of ownership. I am not privy to the Land Registry's reasons for this, but it is perhaps instructive to recall the relevant provisions of the Planning and Environment Act 1987 referred to earlier in these reasons, viz:
   • Under s181(1), a responsible authority may apply to register an agreement ...; and
   • Under s181(3), the Registrar of Titles must make a recording of the Agreement in the register. (my emphasis).
10. These provisions are clear. The Registrar has a statutory obligation to register a section 173 agreement upon application by a responsible authority.
11. Mr Taylor did not deal directly with Kameel, although his arguments were perhaps consistent with those of DP Macnamara in that case. He did however deal with the main issue that may be said to arise from Kameel that is relevant to this case - i.e. whether s 181 of the Planning and Environment Act 1987 should be read down as being subject to the general law, or whether s 181 constitutes later 'over-riding legislation' that has effected an 'implied repeal' of the general law. For this, he relied upon a passage in Calabro v Bayside City Council[5] that had relied in turn on a passage in Butler v Attorney General for Victoria[6]. In the latter decision, Justice Fullagar had indicated that implied repeal was 'a relatively rare phenomenon' and that 'such a repeal will not be held to have been effected unless actual contrariety is clearly apparent'. There should otherwise be 'a very strong presumption that the State legislature did not intend to contradict itself, but intended that both Acts should operate'.
12. On behalf of the Kienes, it was contended that the framework for section 173 agreements under the Planning and Environment Act 1987 was not over-riding legislation, and could not be construed as having impliedly repealed s 42 of the Transfer of Land Act 1958. As is apparent, I do not agree with this proposition.
13. Interestingly, in Calabro, the court had held that, despite the relative rarity of implied repeals, s 203 of the Local Government Act 1989 did impliedly repeal s 42 of the Transfer of Land Act 1958. The Council's unregistered vesting of a public highway in that case over-rode the principles of indefeasibility of title under s 42, and was not defeated by later transfers of title still showing the road forming part of private land. The principle of over-riding legislation and implied repeal has also been accepted in many other cases[7]. Ultimately, each case turns on its own circumstances.
14. In the present case, I consider that there is an inconsistency between the statutory framework for section 173 agreements under the Planning and Environment Act 1987, and s 42 of the Transfer of Land Act 1958.
15. A section 173 agreement is a creature of statute, established to play a specific role in the planning system in Victoria. In my opinion, the detailed regime for section 173 agreements proscribed by the Planning and Environment Act 1987 is such that ordinary principles of property law do not automatically apply to these agreements, and certainly not in a manner that might conflict with their statutory charter. Having regard, amongst other things, to what an agreement can provide for[8], the fact that an agreement is made with a responsible authority[9], and the process for enforcement in similar fashion to a planning scheme or permit[10], it is clear that a section 173 agreement forms part of a suite of complementary planning controls and tools under the Act that are available to regulate the use and development of land, or to otherwise achieve a planning objective.
16. Although formulated as a contract, a section 173 agreement is not, by reason of its statutory characteristics, nothing more than a contract[11]. A responsible authority enters into a section 173 agreement as the public body responsible for the administration of planning for the land in question, rather than as a 'normal' contractual party assuming mutual benefits or burdens with the other party. From its statutory perspective, a section 173 agreement binds only the landowner to obligations under the agreement[12].
17. Furthermore, although a section 173 agreement is clearly made in relation to land, it essentially retains the character of being a planning instrument in relation to the use or development of land, or the achievement of a broader planning outcome specified in the agreement. It is an agreement of a public character[13]. There is nothing in the statutory charter for a section 173 agreement under the Planning and Environment Act 1987 that automatically characterises an agreement as creating a private estate or interest in land, or a restriction or encumbrance affecting the integrity of 'title' to the land in the traditional sense in which those terms are commonly understood[14]. Many section 173 agreements create positive planning obligations over land, rather than imposing restrictions or encumbrances.
18. Moreover, adopting a traditional property law approach, there is ordinarily no land of the responsible authority under a section 173 agreement that can be identified as having the direct 'benefit' of the covenant, such as arises under restrictive covenants or easements where there must ordinarily be land burdened and benefited.
19. It is the consequence of registration of a section 173 agreement that is of critical importance to the legal effect and enforcement of the agreement, by reason of s 182 of the Planning and Environment Act 1987. I have already set out the terms of that provision. After registration, the burden of any covenant in the agreement runs with the land, and the responsible authority may enforce the covenant against a successor-in-title as if it were a restrictive covenant despite the fact that it may be positive in nature or that it is not for the benefit of any land of the responsible authority. It is only registration that characterises the obligation under the section 173 agreement 'as if' it were a restrictive covenant, and thus deems the covenant in that event to be (at least for the purpose of its enforcement against a successor-in-title) something more akin to a formal property right or obligation.
20. The inconsistency that gives rise to the principle of 'over-riding legislation' and 'implied repeal' is most apparent in the wording of ss 181 and 182 of the Planning and Environment Act 1987 itself. In my view, a contrariety is clearly apparent (to use the language in Butler and Calabro) between the two legislative arrangements, such that the later and more specific provisions of the Planning and Environment Act 1987 over-ride and impliedly vary or repeal s42 of the Transfer of Land Act 1958 in this instance.
21. As I have indicated earlier, s 181 of the Planning and Environment Act 1987 requires the Registrar to register the agreement upon application by a responsible authority. There is no qualification on this statutory duty. More particularly, under s 182, after the making of a recording in the register, the responsible authority may enforce the covenant against any person deriving title from the person who entered into the covenant. There is again no limitation apparent from this provision, particularly when read in conjunction with s 181. The time for registration of a section 173 agreement is not restricted to a period only prior to a change of ownership. Moreover, there is no qualification in s 182 that purports to restrict enforcement against a subsequent owner only to circumstances where the section 173 agreement has been registered before a change of ownership or where the subsequent owner has consented.
22. When one considers the 'planning' basis for a section 173 agreement (as opposed to the 'property rights' basis for a traditional property interest under the Transfer of Land Act 1958), this outcome is hardly surprising. Nor is it therefore surprising that such a view seems to accord with current Land Registry practice in relation to the registration of section 173 agreements. To the extent my views might be seen to conflict with the comments of DP Macnamara in Kameel, I must respectfully disagree with his comments in that case on this issue.
23. Having reached this conclusion, it is unnecessary to deal with the issue under s 43 of the Transfer of Land Act 1958 raised by Mr Taylor. Along with s 42, it is also over-ridden by the section 173 agreement provisions in the Planning and Environment Act 1987. However, I believe that both the Council's conduct in the timing of registration of the section 173 agreement after the Kienes assumed title, and the Kienes' prior knowledge of the agreement, are both potentially relevant to the discretions I should exercise in the particular proceedings before me.
24. Somewhat curiously, given the Council's arguments in relation to s 42 of the Transfer of Land Act 1958 and the separate statutory charter for section 173 agreements, the Council had also contended that the agreement would have been enforceable irrespective of it not having been registered at the time of the earlier Tribunal decision. It contended that the burden of the covenant against subdivision would have still been enforceable against the Kienes under established property law principles.
25. To support this argument, Mr Montebello took me through a 'textbook analysis' of the law that he argued should apply to this issue, based almost solely on the discussion in Bradbrook & Neave: 'Easements and Restrictive Covenants in Australia'[15]. Essentially, it has been held that a covenant could be enforced against the assignee of a covenantor, provided the following criteria are met[16]:
    • the assignee must take the land with notice of the covenant, based upon the equitable doctrine in Tulk v Moxhay[17];
    • the covenant must be negative or restrictive (rather than positive) in nature;
    • the burden of the covenant must be intended to run with the land; and
    • the covenant must be given for the benefit of land and must touch and concern that land.
26. The effect of the relevant property law principle appears to be to convert a contractual right inter partes into a property interest enforceable against a third-party assignee where these four criteria are met. In the present case, the Council contended that, at the time the Kienes purchased the land from the Corporation, they had notice of the terms of the agreement and the subdivision restriction. The subdivision restriction is negative, and the agreement (by its own express terms) is intended to run with the land. It was therefore argued by the Council that the Kienes were bound by the agreement, even in the period prior to the statutory registration of the agreement, despite not being a party to the initial agreement between the Council and the Corporation.
27. I do not consider the Council's arguments to be at all conclusive on this issue. In particular:
    • As indicated above, the statutory charter for section 173 agreements in the Planning and Environment Act 1987 qualifies or over-rides the application of property law principles. Prior to registration, the obligation under the section 173 agreement between the Corporation and the Council was not necessarily a normal contractual right inter partes that was capable of being converted into a private property interest enforceable against the Kienes (as successors-in-title) even if the four criteria were met. The agreement is of a different public and planning character;
    • If, for the purpose of the Council's argument, the obligation under the section 173 agreement is a formal 'restrictive covenant' or a traditional property interest even prior to registration under the Planning and Environment Act 1987[18] (despite my view to the contrary), the principle of 'indefeasibility of title' under the Transfer of Land Act 1958 would then arguably apply to defeat the unregistered interest;
    • In any event, the four criteria are not all met. It is clear that, for the purpose of this principle, notice of a covenant is insufficient alone to render the covenant enforceable against the Kienes. Even if the obligation under the section 173 agreement was a 'covenant' to which the contended property law principle might apply, the covenant was not given for the 'benefit' of any land of the responsible authority as covenantee, and the 'burden' was at most only a planning burden in relation to the timing of future subdivision rather than a burden affecting title. Moreover, although there is an intention that the 'burden' of the covenant run with the land, this intent is expressly conditional upon the agreement being registered[19];
28. As I have indicated, it is only upon registration of the agreement that s 182 provides for the agreement to run with the land, and deems the covenant to operate as if it was a restrictive covenant and despite the fact that it is not for the benefit of any land of the responsible authority. Implicit in the wording of s 182, these consequences do not arise prior to registration. Even if this could be said to be all in doubt, the express wording of the section 173 agreement before me (in particular, clause 4) reinforces a similar expectation by the parties to the agreement - including the Council - that the agreement runs with the land only upon registration. The Act and agreement, read together, seems to me to clearly countermand the reverse proposition contended for by the Council on this issue.
29. Even if I am wrong in some of the views I have expressed in the preceding paragraphs, the application and enforcement of complex property law rights or the correctness of the registration obligations and practice of the Land Registry, over and beyond the recognised framework for section 173 agreements, are perhaps a matter for ultimate adjudication in another forum rather than as part of a planning matter. Alternatively, if ss 181 and 182 are intended to apply in a different manner to that I have described, the matter should be clarified by amendment of those provisions.
30. In any event, as will also become apparent, my decision in this case turns on the exercise of discretion under s 184 of the Planning and Environment Act 1987 (ie removing the land from the application of the agreement) rather than on the enforceability of the agreement as against the Kienes. The ultimate decision in this case would therefore be the same, even if a different view were taken of the interplay between the planning and property rights and obligations.
31. I turn now to the specific applications before me.

1. The Council's application to cancel the permit is made by reference to two of the available grounds under s 87 of the Planning and Environment Act 1987, namely:
   • A material mis-statement or concealment of fact in relation to the application for the permit (s 87(1)(a)); and
   • A material mistake in relation to the grant of the permit (s 87(1)(c)).
2. Both of the grounds relied upon essentially arise from the same allegation - namely, the incorrect assertion by the Kienes' planning advocate at the earlier Tribunal hearing that the section 173 agreement had not been disclosed to the Kienes at the time of purchase and they were unaware of it[20].
3. Mr Taylor cautioned me against allowing the Council to run the s 87 application as a back-door 'appeal' against the earlier Tribunal decision to grant the subdivision permit. I agree such a course would be undesirable, but I do not consider that is what the Council is attempting to do in this case.
4. Section 87(6) of the Planning and Environment Act 1987 clearly authorises the Tribunal to cancel or amend a permit issued at its direction. A 'material mistake' for the purpose of s 87(1)(c) can be an error of law or fact or opinion[21]. It follows that the Tribunal can conceivably cancel or amend a permit based on an error of law by the Tribunal in granting the permit. However, s 87(7) contains an important qualification that effectively limits the second Tribunal from using such a power to second-guess the decision of the first. The Tribunal cannot cancel a permit on the ground in s87(1)(c) if the material mistake was a ground of review considered by the first Tribunal[22].
5. Mr Taylor also argued that, to the extent it was conceded that the Kienes' planning advocate had wrongly asserted at the earlier Tribunal hearing that the section 173 agreement had not been disclosed to the Kienes, that was not a material mis-statement in relation to "the application for the permit" for the purpose of s 87(1)(a), but rather (at most) a mis-statement later in the process.
6. This requires consideration of what is meant by the term "application for the permit" in s 87(1)(a). The term "application for the permit" is also used in s 47 of the Planning and Environment Act 1987 where it clearly refers only to the initial application form and accompanying information. The reference to an "application" in the sections immediately following s 47 (such as the register of applications (s49), notice of applications (s 52) etc) uses the term in a similarly limited manner. Despite this, the use of the same term in s87(1)(a) is prefaced by the words "in relation to" which suggests that a broader contextual relationship with the application for the permit is intended. In my view, the term (as used in s 87(1)(a)) refers more to a mis-statement or concealment in the application 'process' as a whole rather than only a mis-statement or concealment in the initial application 'form' and accompanying material. The process necessarily arises from, and is necessarily "in relation to" the permit application. Applying modern principles of statutory interpretation, this would seem to me to better accord with the underlying purpose of the provision.
7. In any event, the Council has also pleaded the available ground in s87(1)(c), namely a material mistake in relation to the grant of the permit. The two grounds pleaded, in combination, are in my view broad enough to cover the whole 'process' leading to the grant of the permit.
8. I am satisfied the Council made its s 87 application promptly after becoming aware of the incorrect assertions made to the earlier Tribunal. However, having survived these threshold issues, I must still be satisfied that the mis-statement or concealment of fact, or the mistake, was 'material'. That term is used in both grounds, under s 87(1) (a) and (c). It is not just any incorrect assertion that is made to the Tribunal that potentially triggers these grounds - the mis-statement or concealment of fact, or the mistake, must be material. It must be of consequence, or be pertinent to, or be of such significance as to be likely to have influenced the determination in the earlier Tribunal decision[23].
9. In this regard, I agree with Mr Taylor for the Kienes that the mis-statement or concealment was not 'material' to the previous Tribunal decision, and it was not therefore material to the permit subsequently granted and issued to the Kienes.
10. There was much debate at the hearing as to what may or may not have influenced Member Hadjigeorgiou in reaching his decision, and what was or wasn't determinative to the outcome, and I was taken to many parts of his written decision and reasons. In my view, any fair and objective reading of the earlier Tribunal decision leads a reader to the view that what was determinative to Member Hadjigeorgiou (in relation to the section 173 agreement) was that the agreement was not registered. The Kienes state of knowledge of the agreement did not alter that fact. Member Hadjigeorgiou considered that the section 173 agreement was unenforceable against the Kienes at that time because it was unregistered and did not then run with the land. Despite a Council view to the contrary, it will be apparent from the views I have expressed earlier that I consider Member Hadjigeorgiou was correct in reaching that view on the facts as they existed at that time. Again, the Kienes state of knowledge of the agreement did not alter that position.
11. It follows that a mis-statement by the Kienes' advocate, that the Kienes did not have knowledge of the section 173 agreement, was not determinative to the outcome in the first Tribunal decision. There is nothing I can find in that written decision and reasons to suggest Member Hadjigeorgiou was materially influenced by that factor. It follows, in my view, that the mis-statement was not material, nor therefore was there a material mistake in the grant of the permit. The two grounds pleaded in the Council's s 87 application are not made out, and that application must fail.
12. Even if the mis-statement had been 'material', the decision reached by Member Hadjigeorgiou was still reasonably open to him in the exercise of his planning discretion having regard to the merits of the case before him. The absence then of the registration of the section 173 agreement was certainly material. Accordingly, even if the mis-statement was material, I would have been reluctant to cancel the permit on that ground alone.

1. The Kienes' have, through two applications in P1904/2008 and P2624/2008, sought declarations and orders essentially as follows:
   1. That the section 173 agreement does not and should not now apply to the Kienes as owners of the land;
   2. That the owner's covenants in the section 173 agreement do not attach to the land and do not bind the Kienes as owners of the land;
   3. That the council must do all things necessary to have notice of the section 173 agreement withdrawn from the title to the land, including giving notice to the Registrar under s 183 of the Planning and Environment Act 1987 of the ending of the agreement in respect of the land;
   4. That, further or in the alternative, pursuant to s 184(3) of the Planning and Environment Act 1987, the Council amend the section 173 agreement to remove the land from the application of the agreement, having regard to the issue of the permit;
   5. That the Council execute a new agreement with the Kienes in accordance with the conditions of the permit.
2. The fourth matter is also the subject matter of the separate s 184 application P1906/2008, and is dealt with separately below. In relation to the third and fifth matters, Mr Montebello argued that these were more in the way of consequential matters that might arise from other findings, or alternatively seeking orders for mandamus (i.e. to compel Council action), but were not really matters for declaratory relief. Mr Taylor properly conceded as much, and did not pursue those matters by way of formal declaration.
3. This still leaves the first and second matters where declarations are sought by the Kienes.
4. In relation to the first matter for which a declaration is sought, it will be apparent from my earlier reasons and my analysis of s 182 of Planning and Environment Act 1987 that I consider that the section 173 agreement does now apply to the Kienes as owners of the land. This is the consequence of the Council's registration of the agreement.
5. In relation to the second matter, it will also be apparent from my earlier reasons and my analysis of s 182 of Planning and Environment Act 1987 that I consider that the owner's covenants in the section 173 agreement do attach to the land and do now bind the Kienes as owners of the land. This is again the consequence of the Council's registration of the agreement. The agreement did not run with land nor bind the Kienes prior to its registration.
6. It follows that the consequence of the Council's belated registration of the section 173 agreement is that the Kienes' applications for declarations must fail.

The Kienes' application to amend the section 173 agreement

1. As an additional or alternative remedy to the declarations sought by the Kienes, the Kienes also made application under s 184(3) of the Planning and Environment Act 1987 to amend the section 173 agreement to remove its operation from the land.
2. Section 184 of the Planning and Environment Act 1987 relevantly provides:

184 Application to Tribunal
>
> ...
>
> (3) A purchaser of land who is a party to an agreement, or an owner of land, may apply to the Tribunal for an amendment to the agreement to remove the land from the application of the agreement, if the parties to the agreement cannot agree that the agreement should be amended.
>
> (4) The Tribunal may approve the amendment if -
>
> (a) it considers that the land owner is not subject to any further liability under the agreement; or
>
> (b) having regard to any relevant permit, or requirements under the Subdivision Act 1988, it considers it inappropriate that the agreement should continue to apply to the land and the owner.

3. As a preliminary matter, the Council argued that the s 184 application could not proceed as the Kienes had not complied with Regulation 56(2) of the Planning and Environment Regulations 2005. Regulation 56(2) provides:

(2) An application for review under section 184(3) of the Act must be made after 60 days after the applicant gave the other parties to the agreement a copy of the proposed amendment to the agreement.

1. Although there was some initial debate at the hearing as to the extent of notice, I agree with Mr Taylor that, for the purpose of Regulation 56(2) in this matter, the recipients of notice would be the Council and the owners for the time being of the 10 lots to which the agreement purported to apply. Although it appears that formal notice was not given under Regulation 56(2), Mr Taylor's instructing solicitor (Mr Morgan) produced correspondence from his file indicating that all of these recipients had received notice of the application and a clear indication of what the Kienes were proposing. Indeed, two of the other lot owners had initially filed a statement of grounds seeking to contest the matter although they did not ultimately appear at the hearing.
2. Accordingly, although notice has not been given strictly in accordance with Regulation 56(2) of the Planning and Environment Regulations 2005, I am satisfied that sufficient notice has been given to alert potentially affected parties of the proposed amendment of the agreement and the nature of the s184 application, and with ample time to consider the matter having regard to the 60 days contemplated by the regulation. This in my view warrants the exercise of my discretion under Clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard the more technical non-compliance with Regulation 56(2) and to still consider the s 184 application on its merits. After reviewing Mr Morgan's correspondence file, Mr Montebello did not strenuously oppose me adopting this course.
3. In considering the merits, it is clear from the wording of s 184(4) of the Planning and Environment Act 1987 (set out above) that there are two tests, one or other of which must be met in order for the application to succeed. The provision also uses the word 'may' indicating the Tribunal retains a general discretion in the matter.
4. The first test is whether the land owner is no longer subject to any further liability under the agreement. As I have indicated, it will be apparent from my earlier reasons and the Council's registration of the agreement that I consider that the owner's covenants in the section 173 agreement attach to the land and now bind the Kienes as owners of the land. It follows that the application does not meet this first test.
5. The second test is whether, having regard to any relevant permit, or requirements under the Subdivision Act 1988, I consider it inappropriate that the agreement should continue to apply to the land and the owner. I am not sure that the reference to the Subdivision Act 1988 is relevant in this case[24]. In any event, there is a relevant permit that triggers the application of this second test. The Permit purporting to authorise 4-lot subdivision of the land in a manner inconsistent with the prior (but later registered) section 173 agreement is clearly a relevant permit for the purpose of s 184(4)(b) of the Planning and Environment Act 1987. Mr Montebello conceded this. He argued instead that, on the facts and circumstances of this case, the Tribunal could not be satisfied that it was inappropriate that the agreement should continue to apply to the land. Mr Taylor obviously argued the contrary. Essentially the determination of the s 184 application becomes a matter for the exercise of discretion, having regard to the Permit and any other relevant considerations.
6. I was referred to the decision in Goodcorp v Melton Shire Council[25]. In that case, Senior Member Byard refused to amend an agreement to enable further subdivision, as the permit there prohibited further subdivision and the amendment of the agreement would therefore be repugnant to the relevant permit. Here, the opposite prevails and the Permit purports to allow further subdivision. The decision in Goodcorp is therefore of little assistance to me.
7. I was also referred to the decision in Solid Investments Australia Pty Ltd v Greater Geelong City Council[26], a decision of the former President that discusses the scope of the discretion under s 184(3) and (4) and related matters. Morris P. notes that these provisions do not give the Tribunal an unfettered discretion to amend an agreement in any manner it thinks fit (following Goodcorp), but adds:

But hidden behind the limitations and subtleties, there may be scope to utilise these provisions in many circumstances in order to achieve sensible and fair planning outcomes[27].

Solid Investments ultimately turned on declarations that one section 173 agreement was void, as was a particular clause of another, and thus led to the removal of the agreements from the land under the first of the tests in s184(4) - i.e. that the owner was not subject to any (further) liability under the agreement. Morris P nonetheless noted that there was a second separate test that might facilitate the use of s 184(3) and (4) where there was a 'relevant' permit in respect of the land or neighbouring land.

1. In Solid Investments, Morris P also noted the potential relevance of s 180 of the Planning and Environment Act 1987. That section provides:

180 Agreement must not breach planning scheme
>
> An agreement must not require or allow anything to be done which would breach a planning scheme or a permit.

He observed that s 180 reflects the primacy of any relevant permit over a section 173 agreement, and the absolute nature of the language used in the provision[28]. The application of s 180 in this case is however not so straightforward. First, the section 173 agreement was entered into when there was no permit and the agreement did not offend s 180. Technically, the agreement was first in time even though its enforceability against the Kienes post-dated the grant of the Permit because of its belated registration. Secondly, even after the Permit was granted, the section 173 agreement did not offend s 180. The agreement did not require something to be done in breach of the Permit (i.e. purporting to authorise something otherwise prohibited), but rather imposed a more onerous restriction on subdivision than the Permit. It is not uncommon for section 173 agreements to operate in this way. Section 180 does not therefore influence the outcome in this case, as it perhaps did in Solid Investments.

1. In Solid Investments, Morris P also had cause to consider a 'relevant permit' that had been granted for the land in question. A permit had issued for a three-storey development whereas the section 173 agreement there required a two-storey development. Morris P noted that "the permit was obviously granted after careful consideration and had been regarded by the Tribunal as an appropriate development having regard to the relevant planning controls."[29] He thus found it inappropriate that the three-storey restriction in the agreement continue to apply to the land (but found it unnecessary to consider the matter further having also found the clause of the agreement containing the three-storey restriction to be invalid and void). Stripped away from this invalidity issue, there are at least some parallels with the case before me.
2. A further parallel arises in that, in Solid Investments, it was argued that the discretion under s 184 should not be exercised favourably to the landowner, essentially on the basis that it had bought its land in full knowledge of the restrictions contained in the section 173 agreement[30]. Although Morris P does not discuss this issue in any detail, other than indicating that the discretionary power in s184(4) is 'broad'[31], it is perhaps of interest that he did exercise the discretion in favour of the land owner in that case, albeit having regard to the particular facts and circumstances of that case.
3. Where does this lead me in this case? Having regard to all of the material before me, and in particular having regard to the relevant Permit, do I consider it inappropriate that the agreement should continue to apply to the land and the Kienes? On the facts and circumstances of this case, the exercise of discretion is by no means clear-cut and is very much an 'on balance' decision.
4. In the present case, the Kienes had knowledge of the section 173 agreement when they purchased the land in 2001, and would have known (or ought to have known upon reasonable planning enquiry) that there was an intended temporary limitation on further subdivision until 1 January 2015. Moreover, the section 173 agreement is now registered, and thus now binds the Kienes to this limitation on further subdivision. These factors might be said to militate in favour of exercising the discretion to maintain the application of the section 173 agreement over the land. To be contrasted with these factors is the fact that the relevant permit that has now been granted. Member Hadjigeorgiou, in the earlier Tribunal decision, was obviously satisfied after careful consideration of the planning issues that the four-lot subdivision was an appropriate development for the land having regard to the relevant planning controls (i.e. in the absence of a registered agreement). Relevant also is the fact that the limitation on further subdivision intended by the agreement is only of a temporary nature, applying only for another 6 years. The four-lot subdivision of the Kienes' land will not therefore prejudice a longer-term planning objective or permanent prohibition.
5. What sways me in the end result is the failure by the responsible authority in this case to register the section 173 agreement for seven and a half years, and the grant of the Permit towards the end of that period.
6. I would not wish it to be the case that s 184 of the Planning and Environment Act 1987 could be commonly used to remove the application of an agreement from land simply because there had been a change of ownership between the execution of the agreement and its registration. It will be clear from my decision that I consider a section 173 agreement can be registered after a change in ownership. Had the responsible authority here registered the section 173 agreement shortly after the Kienes assumed ownership in 2001, I would have had no hesitation in upholding the application of the agreement over the Kienes' land and refusing the s 184 application. Even if the responsible authority had registered the agreement immediately after the Kienes made application for the permit in 2006, I would have upheld the agreement and refused the s 184 application. Despite there being some evidence that the responsible authority wrote to the Kienes indicating an intent to register the agreement, and even initially instructing the Council's lawyers to arrange registration, the responsible authority simply did not register the agreement prior to the earlier Tribunal decision and the grant of the Permit.
7. After seven and a half years of the agreement not being registered, the Kienes had legitimate cause to question whether the responsible authority was ever going to register the agreement. It was reasonably open to the Kienes, after that period of time, to take advantage of the planning controls as they then existed and to seek a planning permit for the four-lot subdivision. It was reasonably open to Member Hadjigeorgiou to grant the Permit. Given these factors, I consider that the responsible authority's belated registration of the agreement after the permit had been granted to be little more than an attempt to close the gate after the horse has bolted. In my view, it is inappropriate in these very unusual circumstances for the section 173 agreement to continue to apply to the land and the Kienes.
8. It follows that the s 184 application is allowed, and the section 173 agreement is amended to remove the Kienes' land from the application of the agreement.

1. Mr Montebello had indicated that the enforcement proceeding only needed to be determined if all of the other proceedings before me were unsuccessful and in circumstances where there was still both a 'live' permit and a 'live" section 173 agreement in place.
2. Given my decision in the s 184 application, and the exercise of my discretion to remove the land from the application of the agreement, there is no longer a 'live' section 173 agreement affecting the land and purporting to prevent the Kienes from acting on the Permit.
3. It follows that the Council's application to enforce the section 173 agreement must fail.
4. It is perhaps fair to reflect that, had I been disinclined to support the s 184 application by the Kienes, I would have granted the enforcement order, which, in turn, would have rendered the Permit nugatory. This in my view would have been necessary to prevent two live but inconsistent planning instruments (i.e. the Permit and the section 173 agreement) operating in respect of the land.

1. It follows that the s 184 application is allowed, and the other applications before the Tribunal are all dismissed.
2. The consequence of my combined decisions is that the Kienes can now act on the Permit and subdivide the land into four lots, subject to compliance with the conditions of the Permit. I note that the Permit requires a further section 173 agreement to be entered into between the responsible authority and the Kienes preventing any further subdivision over and above the four lots authorised by the Permit. This further agreement should be prepared, executed and registered promptly to avoid a repeat of the saga to date.

1. Both parties made or foreshadowed applications for costs depending on the outcome, but there was no debate on this issue at the hearing. I do not encourage a costs application from either party in the circumstances of this proceeding, but I have reserved costs as requested. Any costs application must be made within 60 days and, if such an application is made, I will make any consequential directions at that time.

[1] [2000] VSC 258, per Gillard J at paras [181] to [186]. This view has been endorsed by the Tribunal, for example in Gray v Colac-Otway Shire Council (Red Dot) [2005] VCAT 2266, per Gibson DP at paras [18] to [37]

[2] [2003] VCAT 485. Despite this citation, the matter does not appear to be on Austlii. It was a decision of Macnamara DP on 6 March 2003 in VCAT proceeding P2457/2002.

[3] [2005] VSC 23

[5] [1999] VSC 509, per Balmford J at [484] - [499]

[6] [1961] HCA 32; (1961) 106 CLR 268, at 275-276 per Fullagar J

[7] Including Horvath v Commonwealth Bank of Australia [1998] VSCA 51 (also referenced in Calabro), and South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603. In Hilpalm Pty Ltd v Heavens Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472, at p491, the High Court avoided dealing directly with the issue of inconsistency between a planning Act in NSW and a property Act similar to s42, suggesting a real and lively question existed as to how the two statutory schemes might be reconciled, and whether questions of implied repeal might arise.

[8] Planning and Environment Act 1987, s174(2)

[9] Planning and Environment Act 1987, s173

[10] Planning and Environment Act 1987, ss114 and 126

[11] See Kameel Pty Ltd v Casey City Council [2005] VSC 23 at [25] per Byrne J, adopting the view of Morris P in Solid Investments Australia Pty Ltd v Greater Geelong City Council [2004] VCAT 2356

[12] Planning and Environment Act 1987, s174(1); see also North Burnside Pty Ltd v Melton Shire Council [2006] VSC 35

[13] Solid Investments Australia Pty Ltd v Greater Geelong City Council [2004] VCAT 2356, at para [49] per Morris P

[14] For example, in Plentie Pty Ltd v Banyule Shire Council [2003] VCAT 750, the Tribunal (constituted by Horsfall DP on a question of law) had determined that a section 173 agreement was not a restriction or 'registered restrictive covenant'. See also Gray v Colac-Otway Shire Council (Red Dot) [2005] VCAT 2266, per Gibson DP at para [37] .

[15] Bradbrook & Neave: 'Easements and Restrictive Covenants in Australia' (2nd ed) at pp 336-347

[16] Bradbrook & Neave, op cit, at paras [14.19]-[14.36], and the cases cited therein.

[17] (1848) 41 ER 1143 (Ch) , noted at Bradbrook & Neave, op cit, at paras [14.14]-[14.19]. The Council initially contended that notice alone was sufficient to make an unregistered section 173 agreement enforceable against the Kienes. However, even assuming the principle applies here at all, the decision in Tulk, based on the criterion of notice alone, has since been heavily qualified through a line of subsequent cases adding the other three criteria set out above, and arguably qualified by legislation relating to property rights and interests.

[18] For the record, it is perhaps conceivable that a section 173 agreement could be drafted (by its clear terms) to also operate as a formal 'restrictive covenant', and to be enforceable as a restrictive covenant even without registration under the Planning and Environment Act 1987. I would not encourage such a process as it blurs the respective requirements and obligations of both approaches. In any event, such a scenario does not arise here, given the wording of cl.4 of the agreement and the absence of benefited land.

[19] By reference to clause [4] of the agreement, set out earlier in these reasons

[20] For the record, I do not consider an alternative argument advanced by the Council, that the failure of the Kienes to refer to the section 173 agreement in the initial application material is a material concealment, given the state of knowledge of the Council and the Council's own failure or delay in registration of the agreement.

[21] Following Moonee Valley City Council v Smith [2007] VCAT 1816, at para [26] per DP Gibson

[22] following Hobsons Bay City Council v Srecko & Saric [2000] VCAT 2114, at para [27] per DP Macnamara

[23] Following Sola Optical Australia Pty Ltd v Miles [1987] HCA 57; (1987) 75 ALR 513, 519

[24] The reference to the requirements under the Subdivision Act 1988 appears to relate to the use of section 173 agreements to deal with matters required to be undertaken prior to the certification of a plan of subdivision, or to agreements to which s 184(3) of the Planning and Environment Act 1987 applies by reason of s 21A of the Subdivision Act 1988. It is unnecessary to decide this issue in this case.

[25] [2003] VCAT 911

[26] [2004] VCAT 2356