Casey City Council v Kool Constructions Pty Ltd
[2006] VSC 296
•9 August 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 9516 of 2005
| CASEY CITY COUNCIL | Appellant |
| v | |
| KOOL CONSTRUCTIONS PTY LTD | Firstnamed Respondent |
| JOSEPHINE BREEN | Secondnamed Respondent |
| RAY COLLARD | Thirdnamed Respondent |
| ANDREA STONE | Fourthnamed Respondent |
| PETER STONE | Fifthnamed Respondent |
| VIOLA SHELTON | Sixthnamed Respondent |
---
JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 AUGUST 2006 | |
DATE OF JUDGMENT: | 9 AUGUST 2006 | |
CASE MAY BE CITED AS: | CASEY CITY COUNCIL v KOOL CONSTRUCTIONS PTY LTD & ORS | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 296 | |
---
Application for permit for construction of two dwellings and subdivision of land into two lots – Appeal pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 –Order of Tribunal to be set aside – Failure to comply with opinion of legal practitioner given under s.66 of the Planning and Environment Act 1987 – Failure to give notice in accordance with s.52(1)(cb) – Failure to accord natural justice in accordance with s.98 of the Victorian Civil and Administrative Tribunal Act 1998.
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P. Connor | Maddocks |
| No appearance on behalf of any of the Respondents. | ||
HIS HONOUR:
In November 2004 application was made to the appellant ("the Council") for a planning permit allowing first the construction of two dwellings upon a single residential lot on the corner of Iriswells Close, Tooradin and secondly the subdivision of the land into two lots.
The land is described in Certificate of Title volume 10816 folio 955 and is subject to registered restrictive covenants comprised in two instruments. The first covenant was created on the registration of the relevant plan of subdivision creating the lot being plan of subdivision PS509612G and is described in that plan. It concerns finished floor levels. The second covenant was created by transfer AD195055J by which Camben Pty Ltd transferred the land to Grabiec Holdings Pty Ltd a company associated with the first defendant. This transfer provided in part:
"AND the said Transferee with the intention that the benefit of this covenant shall be attached to and run at law and in equity with every lot on Plan of Subdivision No. 509612G ('The Plan') other than the lot hereby transferred and that the burden of this covenant shall be annexed and run at law and in equity with the said land hereby transferred does hereby for himself, his heirs, executors, administrators and transferees and as a separate covenant and covenants with the said Transferor and the registered proprietor or proprietors for the time being of all land comprised in the Plan of Subdivision and every part or parts thereof other than the lot hereby transferred that the said transferees, their heirs, executors, administrators and Transferees shall not at any time on the said lot hereby transferred or any part or parts thereof:
·erect, cause or permit to be erected or remain on the lot more than one dwelling (excluding garages and balconies) with a minimum size not less than 160 square metres.
·erect, cause or permit to be erected or remain on the lot a dwelling which is constructed of not less than 75% brick, brick veneer, new cedar or new weatherboard or such other materials approved by the Transferor in writing.
AND PROVIDED that the Transferor at its absolute discretion has the power from time to time to waive or vary or release any of the above stipulations AND PROVIDED FURTHER nothing herein contained shall be deemed to imply the existence of a building scheme to prevent the transferor from selling any part of the land benefited free from all or any of the said stipulations."
As can be seen this covenant expressly reserves a power to the covenantor to waive, vary or release the stipulations contingent upon it. The permit application was accompanied by a signed statement to the following effect:
"I Georgia Chuck, sole director and sole secretary of Camben Pty Ltd ACN 006 073 696 authorise covenant PS509612G to be removed from Certificate of Title volume 10816 folio 955 by Grabiec Holdings Pty Ltd."
Notice of the permit application was given to adjoining owners and occupiers and Council received four objections.
On 8 March 2005 Council issued a Notice of Refusal and the applicant then applied to the Victorian Civil and Administrative Tribunal for a review of Council's decision.
The application for review was contested both by Council and a number of objectors. The point was taken that the proposed development was contrary to the terms of the covenant set out above.
On 7 July 2005 the Tribunal constituted by a town planner made an interim order deciding that the planning merits of the proposal favoured the permit applicant. But for the covenant he would set aside the decision of the responsible authority and grant a permit subject to conditions. Quite properly, however, he formed the view that he should not do so until he had obtained answers to two questions of law from a legally qualified member of the Tribunal.[1] Those questions were:
(a)Is the covenant registered on the title to the land an impediment to the granting and issuing of a permit for the construction of two dwellings on the land?
(b)Is the covenant registered on the titles to other properties, and if so is that an impediment to the granting and issuing of a permit for the construction of two dwellings on the land?[2]
[1]It may be this latter question betrays some confusion as to the nation as of the burden and the benefit of the covenant but in the circumstances of the case this is not surprising. The transcript indicates the Tribunal's underlying concern was the notice requirements of s.52 of the Planning and Environment Act 1997.
[2]The Tribunal robustly observed: " … the thing is written in the most incomprehensible legal speak that you've ever seen."
These questions were referred to a legally qualified member of the Tribunal pursuant to the scheme analysed by Balmford J in Rumpf v Mornington Peninsula Shire Council[3]. Section 107 of the Victorian Civil and Administrative Tribunal Act ("the VCAT Act") reads:
[3][2000] 2 VR 69
"107. Dealing with questions of law
(1)A question of law arising in a proceeding must be decided by a judicial member or a member who is a legal practitioner.
…
(3)If a question of law arises in a proceeding where the Tribunal is constituted by a member or members who are not judicial members or legal practitioners —
(a)the question must be decided by another member who is a judicial member or legal practitioner; and
(b)for that purpose only, the Tribunal in the proceeding is to be reconstituted to include that other member.
(4)In this section, 'question of law' includes a question of mixed law and fact."
Clause 66 of schedule 1 of the VCAT Act (which appears in Part 16 of that schedule) reads:
"66. Questions of law
(1)Despite section 107(1), if the Tribunal is constituted for the purposes of a proceeding under a planning enactment without a judicial member or a member who is a legal practitioner, a question of law arising in the proceeding may be decided —
(a)by the presiding member if the parties agree; or[4]
(b)in accordance with the opinion of a judicial member or a member who is a legal practitioner nominated by the President.
(2)Section 107(3)(b) does not apply to a proceeding under a planning enactment."
[4]Section 66(1)(a) was amended on 1 July 2006 and now states:
"(a) by the presiding member unless the parties that are present at the hearing of the proceeding disagree;"
As Balmford J observed in Rumpf:
"[91] The combined effect of those two provisions is that, if the Tribunal is constituted for the purposes of a proceeding under a planning enactment without a judicial member or a member who is a legal practitioner, a question of law arising in the proceeding may be decided by any one of three procedures, namely:
·by another member who is a judicial member or legal practitioner; or
·by the presiding member if the parties agree; or
·by the Tribunal as constituted for the purposes of the proceeding, but in accordance with the opinion of a judicial member or a member who is a legal practitioner nominated by the President.
Further, if the question is decided by another member who is a judicial member or legal practitioner, the Tribunal is not required to be reconstituted to include that other member. However, if the question is decided by the Tribunal as constituted for the purposes of the proceeding, but in accordance with the opinion of a member who is a legal practitioner but not a judicial member, that member must be formally nominated by the President."
In the present case the questions stated were referred to a Deputy President of the Tribunal who is a legal practitioner. After the receipt of further written submissions from the parties she concluded first that the authority to remove the covenant purportedly executed on behalf of Camben Pty Ltd was not effective.
This conclusion was correct. First, the authority referred not to the relevant instrument of transfer but to the plan of subdivision (which it will be recalled created a covenant with respect to floor levels).
Secondly, as the Deputy President found, the authority did not purport to "waive, vary or release" stipulations of the covenant.
Accordingly, the Deputy President answered yes to the first question asked of her namely whether the covenant was an impediment to the grant and issue of a permit for the construction of two dwellings on the land.
Nevertheless, in an effort to assist the sensible resolution of the matter the Deputy President went on to say:
"Once a release is executed, the answer will be no. However, even though the restriction in the covenant may be released so that the grant of a permit for the construction of two dwellings on the land would no longer authorise anything that would be in breach of the covenant (and hence be prevented by section 61(4) of the Act), it would [be] good planning and would accord with the spirit of both section 61(4) and section 62(1)(aa) if:
·A permit is also granted to remove or vary the covenant; and
·A condition is included in the permit for subdivision that a statement of compliance must not be issued until the restrictive covenant is removed or varied to allow construction of a dwelling on each of the lots created by the subdivision."
The Deputy President further answered "no" to question 2 — is the covenant registered on the titles to other properties, and if so, is that an impediment to the granting and issue of a permit for the construction of two dwellings on the land? This answer had been agreed by the permit applicant and council to be the effective answer. The full answer was explained in the Tribunal's reasons.
No application was ever made to the Tribunal for an order permitting the removal of the relevant covenant pursuant to the provisions of the Planning and Environment Act 1997 ("the P & E Act").
Moreover, it may be observed that having regard to its terms such removal might have been effected with the consent of the covenantee pursuant to s.88 of the Transfer of Land Act 1958 without recourse to the powers of the Tribunal. Likewise however, no such removal was attempted.
On receipt of the Deputy President's opinion, the Tribunal member who had conducted the merits hearing made orders that the decision of the responsible authority be set aside and a permit be granted to "remove and vary the covenant on the land, for the subdivision of the land into two lots and for the development of two dwellings …" subject to conditions.
The Council now appeals this decision pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 raising a series of questions of law.
The first of these is directed to the proposition that at the date of the Tribunal's decision no further release had been executed with respect to the relevant covenant. Accordingly, the decision to grant a permit for two dwellings was not in accordance with the Deputy President's decision.
This contention is correct. In seeking to chart a way forward the Tribunal in effect treated the waiver previously executed by the covenantee as valid when the Deputy President had held that it was not.
Next it is submitted the Tribunal had no power to order that the covenant be removed or varied.
A threshold point not taken in the grounds of appeal is that the order is uncertain in its terms and effect in this regard.
More fundamentally, no notice had been given of an application to remove or vary the terms of the relevant covenant in accordance with s.52(1)(cb) of the P & E Act.[5]
[5] These sub-sections provide:
"52. Notice of application
(1)Unless the responsible authority requires the applicant to give notice, the responsible authority must give notice of an application in a prescribed form—
(cb)to the owners (except persons entitled to be registered under the Transfer of Land Act 1958 as proprietor of an estate in fee simple) and occupiers of land benefited by a registered restrictive covenant, if the application is to remove or vary the covenant;"
In turn the owners and occupiers of land benefited by the covenant were not given the opportunity to be further heard before the order was made to remove or vary the covenant. As a consequence they were not accorded natural justice in accordance with s.98 of the VCAT Act.
It is likely that this latter problem arose because of confusion in relation to the effect of the answer to Question 2, but as a result the order to "remove or vary" the covenant was beyond power.
In the circumstances the order of the Tribunal must be set aside. It seems to me, however, that it should be for the Tribunal to determine whether the permit applicant should be given a further opportunity to address the disqualifying covenant before the appeal is finally disposed of. Accordingly, I will in addition direct that the matter be further considered and determined in accordance with law by the same division of the Tribunal as previously determined it.
It is unnecessary to further address the remaining grounds of appeal.
---
0
0
0