What's happened?

The decision of the Supreme Court in TJBP Pty Ltd v Brown & Ors [2013] VSC 173 proceeding was an appeal on a question of law arising out of enforcement proceedings brought in the Victorian Civil and Administrative Tribunal (Tribunal). In December 2012 the Tribunal ruled that a permit authorising a 42 lot subdivision had expired and made enforcement orders restraining completion of the development.

The Tribunal decision can be accessed here.

The Tribunal summarised the factual background as follows:

• the original permit issued on 12 September 2003 at the direction of the Tribunal
• a plan of subdivision was certified by the council on 26 June 2006 and re-certified on 27 September 2006 and subsequently. This was comfortably within the time provided by the expiry condition (No. 4) of the original permit which then applied since certification occurred within five years of the date of issue of the permit
• the permit was amended on 23 March 2007 at the direction of the Tribunal to expressly allow a staged subdivision and to modify requirements for drainage to service the two stages. The former expiry condition was dispensed with and a new expiry condition (No. 29) was included. Condition 1 was amended to require the submission of amended plans for endorsement showing changes to the then current endorsed plans
• the permit holder applied to the responsible authority for an extension to the permit on 10 June 2011. This was granted on 15 August 2011 and was expressed to allow certification of a plan of subdivision under the permit until 29 March 2013
• a further plan of subdivision (Version A) was certified by the council on 9 March 2012 for stage 1, with stage 2 certified on 13 March 2012.

When issued, condition 4 of the permit dealt with expiry only in relation to commencement, providing that the permit would expire if the council had not certified the plan of subdivision within five years of the date of issue of the permit. The certification of the plan of subdivision in September 2006 constituted commencement of development at the time.

Condition 29 of the amended permit provided:

"Where the subdivision is to be developed in stages, the time specified for the commencement of the first stage is two years from the date of the amendment of this permit. The time specified for the commencement of any subsequent stage is three years from the date of the amendment of this permit and the time specified for the completion of each stage is two years from the date of its commencement. The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards."

Tribunal proceeding

In 2012 a neighbouring landowner commenced enforcement proceedings alleging that the subdivision permit had expired. The neighbour argued that:

• the amended permit was effectively a new permit, such that condition 29 was effective to require a new act of certification within two years of the date of the amendment
• as a consequence, the subsequent extension granted by the council was granted out of time and was invalid.

The Tribunal agreed with the neighbour that the amended permit 'substituted a new set of rights in place of the original' permit meaning that the certification of the plan of subdivision in 2006 could not be relied on. On this basis the Tribunal granted enforcement orders and declared that the 2012 certification of plans was invalid.

The appeal

The owner and the council both appealed the Tribunal's decision. The Court's reasons identify the 'critical issue' before the Tribunal was whether condition 29 was effective to regulate the expiry of the permit, as amended.
In considering the statutory framework, the Court noted that the Planning and Environment Act 1987 (P&E Act) and the Subdivision Act 1988 are 'cognate legislation', which must be read together and have an interdependent operation.
The Court carefully examined the terms of section 68(1)(b) of the P&E Act, which provides:

A permit for the development of land expires if— (b) the development or any stage is not completed within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit or in the case of a subdivision or consolidation within 5 years of the certification of the plan of subdivision or consolidation under the Subdivision Act 1988.

The Court held that:

• the statutory scheme does not contemplate that the certification of a plan of subdivision will be invalidated by the amendment of a permit for subdivision, and that such an outcome would be inconsistent with section 7 of the Subdivision Act 1988
• section 68(1) of the P&E Act is careful to distinguish between development generally, and subdivision specifically. Development in the form of subdivision is given separate attention both in section 68(1)(aa) and in the third limb (of section 68(1))
• the Tribunal was correct when it recognised that the certification in 2006 was 'commencement', but that it erred in holding that the Permit Amendment had the effect that the 2006 Certification could no longer be relied upon as commencing the development.
• the words in section 61(1)(b) 'the development or any stage is not completed within the time specified in the permit, or if no time is specified, within two years after the issue of the permit' have no application in the case of a permit for subdivision. The words 'or in the case of a subdivision or consolidation within five years of the certification of the plan of subdivision or consolidation under the Subdivision Act 1988' govern the expiry of a permit for want of completion of the development in the case of a subdivision. This is not a 'default provision', but the only provision for the expiry of a permit for subdivision.

Implications for planners and subdivision officers

The decision will require material changes to the administration of the P&E Act by responsible authorities in the case of subdivision proposals.

As a result of this decision, we recommend that councils:

1. review and redraft standard permit conditions relating to the expiry of subdivision permits, including expiry conditions on permits authorising staged subdivisions
2. carefully interpret conditions on existing permits for subdivision, including a staged subdivision, before certifying plans, issuing a statement of compliance, considering extension of time requests or otherwise advising or making decisions about the currency of a subdivision permit.