Scotts Securities Pty Ltd v Melton CC [2022] VCAT 820 which involved a proposed subdivision of green wedge land in Toolern. The application represented the third subdivision for the land and was only permissible due to a series of technical errors made in relation to the previous two subdivision applications which had resulted in a s173 Agreement preventing further subdivision either not being recorded on the balance lot in the case of the first subdivision, or simply never entered into as part of the second subdivision. The Tribunal in allowing the third and further subdivision commented:
I acknowledge the concerns expressed about the fairness of the situation, particularly given this form of planning control over subdivision has been in place for decades and the fact that permits have already issued for this site enabling subdivision of parts of the larger balance lot subject to a requirement for no further subdivision. The Council has obviously been aware of this situation for some time. It acknowledged during the hearing that it has never sought to correct or amend the error in the existing section 173 agreement. The current owner of the land is different to the owner that entered into the agreement. I concur with the applicant’s submission that, given these circumstances, it is a fact that the current owner purchased the site free of any restriction.
Returning to the planning objectives mentioned earlier, providing for the fair and orderly use and development of the site in this case necessitates this application being considered based on the planning scheme provisions relevant to this site and this proposal. There is nothing in the planning scheme that prevents this proposal from being considered on its merits. Similarly, there are no restrictions (such as a section 173 agreement prohibiting further subdivision) that affect this site and prevent this proposal from being considered on its merits.
Camenzuli v Brimbank CC [2022] VCAT 832 involved the interpretation of a covenant and whether reference to ‘main building’ prohibited the construction of more than one dwelling on the Land. Essentially the position of Council and the permit applicant was that the covenant did not prohibit the construction of more than one dwelling as if that had been the intention, the covenant could have been drafted to make this intention clear. In disagreeing the Tribunal indicated that the covenant must be considered in its full context. A worthy reminder of the potential complexities of restrictive instruments.
BEG Projects Pty Ltd v Moreland CC [2022] VCAT 841 involved a dispute between the permit applicant and the Council as to whether the ’60 day’ statutory clock had passed or if it had stopped due to a failure of the applicant to give notice. In this matter Council advised the applicant on 17 March that notice was required in the usual manner of letters and placement of a sign with Council to undertake the notice once payment of its invoice was made. The permit applicant quickly paid the invoice. Subsequently on 23 March Council again wrote to the permit applicant advising that notice was required via way of the permit applicant placing notices in two newspapers. This was never undertaken. The permit applicant’s argument was essentially that notice could not be required to be given twice which the letter of 23 March represented, Council could not reconsider the extent of notice required once it had already made its decision i.e. by way of the 17 March later, and s52(1) had been satisfied by payment of the 17 March invoice. In disagreeing, the Tribunal stated:
I do not agree that it is clear from the wording of section 52(1) that a responsible authority can only require an applicant to give all of the notice of a permit application rather than part of it. There is nothing in section 52(1) which says this. Section 52(1) simply enables the responsible authority to require a permit applicant to give notice. This enabling provision is expressed in general terms and I find it to leave the details of the requirement for the responsible authority to resolve, including whether the requirement extends to all or only particular aspects of the notice that the responsible authority would otherwise be required to give.
All the P&E Act says about the details of any requirement to give notice by a responsible authority is what is set out in section 53 of the P&E Act and section 53 does not say that the requirement must cover the entirety of the notice. All section 53 says about a requirement to give notice is that the responsible authority may specify the persons to whom the notice is to be given and that any such requirement must be in writing.
I do agree with the applicant that it is important for responsible authorities to aim to make the notice process as simple and as streamlined as possible so as to avoid confusion and ensure orderly progress of permit applications. However, I do not consider section 52(1) should be read in a manner which priorities this outcome over the very clear purpose of section 52(1) of ensuring that third parties, one way or another, receive appropriate notice of a permit application. It is this latter purpose that is reinforced by section 4(2)(i) of the P&E Act, which makes it clear that the requirement to give appropriate notice of planning permit applications is one of the objectives of the planning framework established by the P&E Act.
In any event, the intent of section 52(1) cannot be to prevent staggered notice, given it says nothing as to the timing of the various forms of notice which it requires to be given and expressly provides in section 52(3) for further notice to be given. Nor can section 52(1) be interpreted as intending all notice to be given by either the responsible authority or the applicant, given it expressly provides for further notice to be given by a responsible authority, even where the initial notice is given by an applicant.
I also observe that a simple and streamlined notice process may well in some instances involve a permit applicant giving some forms of notice that are best able to be given by it (such as placing a sign on the site), while the responsible authority may be better placed to give other forms of notice (such as letters to adjoining owners and occupiers using the data from its rates record). It may therefore be contrary to the administration of simple and streamlined notice to read section 52 in the way suggested by the applicant.
Glossop Town Planning enjoyed another busy month appearing before the Tribunal either as an advocate (Hew Gerrard) or expert planning witness (John Glossop). If Glossop Town Planning could potentially be of assistance with any VCAT related matters, please contact our office on 9329 2288 or via email at mail@glossopco.com.au.
