Curry v Melton Shire Council

The applicant, Curry, sought an appeal from a decision of the Victorian Civil and Administrative Tribunal which had reviewed a permit for the subdivision of land granted by the Melton Shire Council. The Tribunal had replaced a condition in the permit which required the applicant to enter into an agreement for the provision of services and facilities to meet the needs of population growth, with a condition requiring a monetary contribution according to the Council's Development Contributions Plan. The plan was not an approved Development Contributions Plan under section 46H of the Planning and Environment Act 1987. Curry contended that the replacement condition was not authorised by section 62 of the Act and that, if invalid, the condition was not severable from the rest of the permit.

The central legal issues for the court were whether the replacement condition imposed by the Tribunal was authorised by the Act and, if the condition was invalid, whether it was severable from the rest of the permit. The court needed to interpret sections 62, 173, 174, 181, 182 of the Planning and Environment Act 1987 and section 62(2)(h) of the Planning and Environment (Development Contributions) Act 1995. The Interpretation of Legislation Act 1984 was also relevant to the interpretation of the statutory provisions. The court considered relevant case law including Cardwell Shire Council v King Ranch Australia Pty Ltd, Commissioner for Railways (NSW) v Agalianos, Kent County Council v Kingsway Investments (Kent) Ltd, Re Boucher, and Spurling v Development Underwriting.

The court held that the replacement condition was not authorised by section 62 of the Planning and Environment Act 1987 as it did not fall within the permissible grounds for imposing conditions in a permit. The court noted that the Act did not provide for the imposition of a condition requiring a monetary contribution according to an unapproved Development Contributions Plan. However, the court found that the invalid condition was severable from the rest of the permit, which remained in force. The court relied on section 35 of the Interpretation of Legislation Act 1984 which provides for the severance of invalid provisions from valid ones where possible. The court also referred to relevant case law which supported the principle of severability.

The court ordered that the replacement condition imposed by the Tribunal was invalid and not authorised by the Act. However, the court declared that the invalid condition was severable from the rest of the permit, which remained in force. The court did not set aside the Tribunal's decision in its entirety but only to the extent that it imposed the invalid condition.