M a Zeltoff Pty Ltd v Stonnington City Council
[1999] VSC 270
•5 August 1999
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION
Not Restricted
No. 5508 of 1999
M.A. ZELTOFF PTY LTD (ACN 004 751 197) Plaintiffs and MARGARET DIANA BERKELEY V STONNINGTON CITY COUNCIL Defendant
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JUDGE: Balmford, J. WHERE HELD: Melbourne DATE OF HEARING: 29 June 1999 DATE OF JUDGMENT: 5 August 1999 CASE MAY BE CITED AS: M.A. Zeltoff Pty Ltd v Stonnington City Council MEDIA NEUTRAL CITATION: [1999] VSC 270 Restrictive covenants – Whether the Council as planning authority has the power to amend the relevant planning scheme to allow for the removal of a covenant.
Planning and Environment Act 1987; ss 6(2)(g), 6A, 60
Property Law Act 1958; s 84
Subdivision Act 1988; s 23
Cobiac v Liddy (1969) 119 CLR 257
Fitzgerald v Champneys 2 J & H 31
Greenwood v Burrows (1992) V Conv R 54-444
Maybury v Plowman (1913) 16 CLR 468Re Smith’s Estate; Clements v Ward (1887) 35 Ch D 589
APPEARANCES: Counsel Solicitors For the Plaintiffs Mr BJ Shaw QC with Phillip Bing and Associates Dr KR Hanscombe For the Defendant Mr SR Morris QC Maddock Lonie &
Chisholm
Introduction
HER HONOUR:
In this proceeding, the plaintiffs claim a declaration that the Stonnington City Council does not have the power to amend the Stonnington Planning Scheme in accordance with proposed amendment L74, set out in paragraph 8 below. A claim for an injunction, included in the originating motion, was expressly abandoned in running.
The evidence before the Court is contained in the affidavit of Hartog Carel Berkeley (“Mr Berkeley”) and is not in issue. The firstnamed plaintiff (“Zeltoff”) is the trustee of the Berkeley Family Trust, which is a trust constituted for the benefit of Mr Berkeley’s family. Zeltoff is the registered proprietor of an estate in fee simple in the land contained in Certificate of Title Volume 4436 Folio 112, which is known as 21 Selborne Road Toorak (“No 21”). The secondnamed plaintiff (“Mrs Berkeley”), who is described in the affidavit as “the second named defendant” in what is clearly an error, is the wife of Mr Berkeley and is in equity the life tenant in possession of No 21. There is on No 21 only one dwelling house, which is occupied by Mr and Mrs Berkeley as their home.
The adjoining property to the east of No 21 is the land contained in Certificate of Title Volume 4436 Folio 113, which is known as No 23 Selborne Road Toorak (“No 23”). The registered proprietors of No 23 are John Demond Griffiths and Stephanie Griffiths (“the Griffiths”). There is on No 23 only one dwelling house, which is occupied by the Griffiths as their home.
By transfer number 988338, registered in the Office of Titles on 10 March 1921, there was created over No 23 a restrictive covenant binding the transferee, his executors, administrators and transferees that they would not at any time thereafter erect, build or place, or cause to be built or placed, on that land or any part thereof any building other than one private dwelling house of stone or brick. By virtue of their respective interests in No 21, the plaintiffs are entitled to the benefit of that covenant.
Early in April 1998, the Griffiths asked Mr Berkeley whether he would consent to their erecting two two-storey dwellings on No 23 in place of the existing house. He replied in a letter written on behalf of himself and his wife, saying in effect that they would not consent, and giving their reasons.
In about May 1998, the Griffiths applied to the defendant (“the Council”) for planning permits for removal of the covenant and for the use and development of No 23 for two two-storey attached dwellings. Notice of the applications was served on the beneficiaries of the covenant. A number of people, including the plaintiffs, delivered to the Council objections to the granting of the permits. The application for a permit to remove the covenant was refused, as being contrary to section 60(5) of the Planning and Environment Act 1987 (“the Planning Act”), as to which see paragraph 19 below. The application for a permit for the use and development of No 23 for two two-storey attached dwellings was granted by the Council as responsible authority. Permit No 516/98 issued on 11 November 1998, a notice of decision to grant a permit having been issued on 29 September 1998, and no objections having been received.
The Council, as planning authority, has now prepared the proposed amendment L74 (“the proposed amendment”) to the Stonnington Planning Scheme (“the planning scheme”) which gives rise to this proceeding. The proposed amendment affects clause 102A of the local section of the planning scheme, the operative part of which reads:
The easements and restrictions described in column 1 of the Table below are directed to be created, removed or varied as indicated in column 2 from the land described in column 3. This direction is in accordance with section 6(2)(g) of the Planning and Environment Act 1987.
The proposed amendment reads:
The local section of the Stonnington Planning Scheme is amended as follows:
Under the following headings:
Column 1 Column 2 Column 3
Details of Direction Land
easement/restriction Description Add the following to the end of Clause 102A
the restrictive covenant Vary transfer to 23 Selborne Road (Lots
contained in Transfer No allow development 26 and 26 [sic], PS 5067)
988338 permitted under Toorak (Vol. 4436 Folio planning permit 113)
number 516/98
issued on 11 November, 1998
The amendment was advertised on page 28 of the Malvern/Prahran Leader, which I take to be a newspaper circulating in the area, on 7 April 1999. The plaintiffs did not receive any personal notice of the proposed amendment from the Council. They have objected to the adoption of the proposed amendment.
Restrictive covenants and the preparation or amendment of planning schemes
The specific provision empowering a planning authority, in the preparation or amendment of a planning scheme, to take action in regard to restrictive covenants is section 6(2)(g) of the Planning Act. That is the provision which is said in the planning scheme to authorise the making of clause 102A of the planning scheme, the clause which is sought to be amended by the proposed amendment. As originally enacted in 1987, section 6(2)(g) read, so far as relevant:
(2) . . . a planning scheme may—
(g) direct the creation of, extinguishing of or variation of rights of way or other easements, restrictions or encumbrances on land;
By the Subdivision (Amendment) Act 1989 (“the 1989 Act”), section 6(2)(g) of the Planning Act was amended by the insertion after the word “direct” of the words “or provide for”. By the Subdivision (Miscellaneous Amendments) Act 1991 (“the 1991 Act”), a new section 6(2)(g) was substituted, which reads as follows:
(2) . . . a planning scheme may—
(g)
subject to section 6A, regulate or provide for the creation, variation or removal of easements or restrictions under section 23 of the Subdivision Act 1988.
That is the present form of section 6(2)(g). “Restriction” is defined in section 3 of the Subdivision Act 1988 (“the Subdivision Act”) to include a restrictive covenant, and is defined in section 6A(1) of the Planning Act as having, in section 6A and section 6(2)(g), the same meaning as in the Subdivision Act.
Section 23 of the Subdivision Act is a provision consequential on the operation of section 6(2)(g) of the Planning Act. As originally enacted, that provision read:
23. (1) If a planning scheme directs the creation, removal or variation of easements, restrictions or encumbrances, the Council or the person benefitting from the direction if the planning scheme so requires must lodge a certified plan in the Office of Titles for registration.
(2) The consent of any other person who has an estate, interest or claim in the land is not required.
Section 23(1) was amended by the 1989 Act but that amendment is not presently relevant.
By the 1991 Act, section 23(1) of the Subdivision Act was substituted to read:
23. (1) If a planning scheme or permit regulates or authorises the creation, removal or variation of an easement or restriction, the Council or the person benefiting from the creation, variation or removal must, in accordance with the planning scheme or permit and with the [Planning Act], lodge a certified plan at the Office of Titles for registration.
Section 23 was further amended by the Subdivision (Amendment) Act 1993, but the amendment is not presently significant.
The first submission of Mr Shaw, for the plaintiffs, relied on the use of the words “directed” and “direction” in clause 102A, and hence in the proposed amendment. He submitted that, as the word “direct” had now been removed from section 6(2)(g) of the Planning Act (and consequentially from section 23 of the Subdivision Act) by the process of amendment described above, it was plain that a planning scheme could no longer “direct” the variation of a restrictive covenant, but could only “regulate” or “provide for” such a variation. The removal of the word “direct” was an indication that the words “regulate” and “provide for” did not include a power to “direct” a variation.
I do not accept that submission. Absent the history of amendments to section 6(2)(g), it could not have been suggested that a power to “provide for the variation of restrictive covenants” (to paraphrase section 6(2)(g) in accordance with its effect) did not enable the preparation of the proposed amendment. The words “directed” and “direction” in clause 102A of the planning scheme were no doubt employed because of the earlier text of section 6(2)(g). I do not find them to be ineffective under the present text of that provision.
Turning to consider the effect of the history of the removal of the word “direct” and its effective replacement by “regulate or provide for”, I do not find that that amendment renders ineffective a provision in a planning scheme which “directs” a variation. Whatever the intention of Parliament in effecting the amendments, I find that in this context, at least, “direct” and “provide for” are not antithetical. There is no specific significance in the use of the word “direct”. The meaning of “direct”, in this context, is subsumed in “provide for ”. I note that the relevant meaning of “provide” in the Second Edition of the Oxford English Dictionary is:
To make it, or lay it down as, a provision or arrangement; to stipulate that;
Accordingly, that submission fails.
The relevance of other provisions
There are in Victoria four different statutory methods of effecting the removal or variation of a restrictive covenant. The first three may be briefly summarised, in the order of their enactment:
• The oldest method in point of time is an application to this Court under section 84 of the Property Law Act 1958 (“the Property Law Act”). That provision requires the Court to be satisfied inter alia that all persons entitled to the benefit of the covenant have consented to the discharge or modification of the covenant or that they will not be substantially injured thereby. • The amendment of a planning scheme pursuant to section
6(2)(g) of the Planning Act has been considered above.• Part 9A of the Planning Act, inserted in 1997, provides that, for the purposes of a development of State or regional significance, a restrictive covenant may be removed by the Governor in Council, but only after an opportunity for objection is given to the owner of any property likely to be substantially affected by the removal, and any objections have been considered.
The fourth method is contained in sections 6A and 60(2) of the Planning Act (which were inserted in that Act in their present form by the 1991 Act) and sections 60(3) to 60(7) of that Act (which were inserted by the Planning and Environment (Amendment) Act 1993). Section 60 relevantly empowers a responsible authority under a planning scheme to grant a permit which allows the removal or variation of a restriction, i.e. for present purposes a restrictive covenant, as to which see paragraph 10 above. Section 60(5) of the Planning Act, by virtue of section 60(4), applies to a restriction created before 25 June 1991, and thus applies to the restrictive covenant in question here. The effect of section 60(5) is that the responsible authority must not grant a permit allowing the removal or variation of such a restriction unless it is satisfied that the owner of any land entitled to the benefit of the restriction who has not consented to the grant of the permit will be unlikely to suffer any detriment of any kind, including a perceived detriment, as a consequence of the removal or variation, and that any objection by that owner was vexatious or not made in good faith.
It is thus clear that the operation of each of the statutory methods of varying or removing a restrictive covenant, other than the amendment of a planning scheme under section 6(2)(g), requires steps to be taken to protect, to some degree at least, the interests of persons entitled to the benefit of the covenant. Section 6A of the Planning Act imposes certain constraints on the operation of the power in section 6(2)(g) of the Planning Act and of the obligation laid down by section 23 of the Subdivision Act, but does not relate to the interests of such persons.
Mr Shaw pointed out that the combined effect of sections 6A and 60(5) was to impose extensive limitations on the power of a responsible authority to grant a permit varying a restriction which is valued by the persons entitled to the benefit, as the plaintiffs value the restrictive covenant affecting No 23. That being so, he submitted that it could not be thought that Parliament intended to give a planning authority the power to annihilate that protection by simply amending the planning scheme.
He relied on the maxim generalia specialibus non derogant: that provisions of general application give way to specific provisions when in conflict. He submitted that the general provision in section 6(2)(g) of the Planning Act should not be interpreted to enable the variation of a restrictive covenant by amendment to a planning scheme in circumstances where the covenant could not be varied by way of a planning permit under the specific provision in section 60 of that Act. He cited a passage from the fourth edition of Pearce and Geddes Statutory Interpretation in Australia at paragraph 4.24:
What is said in some cases to be a particular application of the principle underlying the generalia specialibus approach is to be found in cases concerned with the grant of power both in general terms and in specific terms. If the general power is conferred without limitations or qualifications but the special power is expressed to be subject to some limitations or qualifications, the general power cannot be exercised to do that which is the subject of the special power.
The principle behind the maxim was quoted with approval by Barton ACJ in Maybury v Plowman (1913) 16 CLR 468 at 474 when he said:
I wish to quote a passage from the judgment of Wood VC in Fitzgerald v Champneys 2 J & H 31 at 54, quoted by Stirling J in [In re Smith’s Estate; Clements v Ward] (1887) 35 Ch D 589 at 595:
The reason in all these cases is clear. In passing the special Act, the legislature had their attention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstances of that special case; and, having so done, they are not to be considered by a general enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and regulated.
Considering the present circumstance in the light of that passage, section 60 of the Planning Act was originally enacted in 1993, and section 6(2)(g) of that Act in 1987, so that the general provision predated the specific. Further, the 1991 Act substituted section 6(2)(g), inserted section 6A and amended section 60 to include the first version of the protection for the owner of land entitled to the benefit of the covenant. It would be difficult to maintain that, in introducing that protection, Parliament had not had its attention directed to both provisions.
Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 268:
The proposition that [the Offenders Probation Act 1913-1953 (SA)] has been supplanted by the rigorous provisions of the later Act was put to us as an example of the contrast between the general and the special – the provisions of the Road Traffic Act being regarded as the special. So put, the proposition is the obverse of the maxim generalia specialibus non derogant, because the so-called special provisions come after the general enactment. What is said is really specialia generalibus derogant: but whether a later Act has taken away a discretionary power given by an earlier Act must depend upon a comparison of the actual language of each, to see whether they do stand together or whether the latter has, pro tanto, abrogated the former. The question is not answered by maxims.
The two provisions, sections 60 and 6(2)(g), deal with different subjects. As Mr Morris, for the Council, pointed out, the making or amendment of a planning scheme is significantly different from the grant of a permit pursuant to a planning scheme. A planning scheme is delegated legislation, whereas a planning permit is an instrument pursuant to delegated legislation. The making or amendment of a planning scheme may only be initiated by a planning authority, while a permit application may be initiated by any person with a relevant interest in the land (sections 8, 9 and 12 of the Planning Act). A planning scheme is made or amended by a planning authority in conjunction with the Minister, whereas a planning permit may be granted by a responsible authority or by the Victorian Civil and Administrative Tribunal (sections 13 and 14 of the Planning Act). It cannot be said that either of the two provisions in question has to any extent abrogated the other. Both can be applied without conflict.
For these reasons, I find that the maxim generalia specialibus non derogant is not determinative of the issue before me.
In Greenwood v Burrows (1992) V Conv R 54-444 at 65,203, Eames J was concerned with an application under section 84 of the Property Law Act. He referred to the provisions introduced by the Subdivision Act and the Planning Act, but found that the existence of those provisions did not affect the principles to be applied by the Court in dealing with that application.
That finding, while not directly in point, is consistent with the view which I have reached in the present matter. The four different statutory means whereby a restrictive covenant may now be varied or removed are provided for separately in legislation, involve the operation of different principles, and must be separately applied, without reference one to another. It is surprising that the amendment of a planning scheme under section 6(2)(g) does not require any steps to be taken to protect the interests of the persons entitled to the benefit of the covenant, while the enactments enabling each of the other three methods recognise that the interests of such persons are interests deserving of consideration. Nevertheless, it seems to me that that must be the effect of the various legislative provisions in question.
For the reasons given, the plaintiff’s claim fails. Counsel may wish to make submissions as to costs.
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