TPSC PTY LTD (ACN 122 486 971) Applicant and KINGSTON CITY COUNCIL First Respondent and BONLEAF PTY LTD (ACN 082 546 049) Second Respondent and ROADS CORPORATION Third Respondent

In the case of TPSC Pty Ltd v Kingston City Council, the dispute involved the interpretation and application of a section 173 agreement under the Planning and Environment Act 1987. The applicant, TPSC Pty Ltd, sought a permit for a more intensive development on Activity Centre land, which was subject to an agreement for integrated development with another developer. The Council and the second respondent, Bonleaf Pty Ltd, opposed the application, arguing that the section 173 agreement precluded any development other than as outlined in the expired 2008 permits. The applicant's appeal to the Supreme Court sought to overturn a decision from the Trial Division that dismissed the appeal from the Victorian Civil and Administrative Tribunal (VCAT).

The legal issues before the court centred on the interpretation of the section 173 agreement and its effect on the ability to grant a new permit for development that differed from the 2008 permits. The applicant argued that the agreement did not preclude a new permit, while the respondents contended that the agreement restricted the development to the terms of the 2008 permits. The court also needed to determine whether VCAT had misconstrued the agreement and whether it had considered irrelevant factors in granting the permit. Additionally, the court had to assess whether the Trial Division judge had erred in affirming VCAT's decision.

The Supreme Court found that the section 173 agreement did not preclude the applicant from seeking a new permit for a different development from that outlined in the 2008 permits. The court held that the agreement allowed for variations to the 2008 permits as long as the overall integrated development was preserved. VCAT had not misconstrued the agreement, and the Tribunal had appropriately considered relevant factors in granting the permit. The judge's decision to dismiss the appeal was upheld as the agreement was correctly interpreted and applied by VCAT. The court found no error in the judge's construction of the agreement or in upholding VCAT's decision. The permit was therefore to be issued in accordance with VCAT's order.