The Business Legal World

Permits the power to cancel, unusual condition and other restrictions

Skabal Pty Ltd v Boroondara City Council [2020] VSC 532

An unsuccessful appeal to the Supreme Court against the decision of VCAT that it lacked power to cancel a permit. The appellant held the benefit of a carriageway easement, which was considerably reduced in size via the planning permit and subdivision process. Notice of the easement variation application failed to come to the attention of the appellant until after the variation had been registered on title. The appellant ultimately wanted the easement restored to its original dimensions.

In Skabal Pty Ltd v Boroondara City Council [2020] VSC 532, the appellant, Skabal Pty Ltd (Skabal) sought leave to appeal against the earlier decision of the Tribunal, and if granted, sought an order setting aside the Tribunal’s decision and either an order directing the Registrar of Titles to cancel the variation of the easement, or an order remitting the application to be heard and determined by a differently constituted Tribunal. Justice Richards dismissed the application, confirming VCAT’s earlier decision that it had no power to cancel a planning permit that allowed for the variation of an existing easement in circumstances where the easement application had already been registered by the Registrar of Titles.

Skabal Pty Ltd (Skabal) Skabal owned a commercial premises that had the benefit of a 42.67m long carriageway easement that encumbered adjoining land owned by the Bonomos. The easement ran along the entire length of the boundary between the two properties. In late 2017, the Bonomos applied to the Boroondara City Council (the Council) for a planning permit to vary the easement by reducing its length from 42.67 metres to 16.46 metres largely on the basis that this portion of the easement wasn’t utilised by Skabal or its tenants. Under clause 52.02 of the Boroondara Planning Scheme, a planning permit is required before a person can create, vary or remove an easement under clause 23 of the Subdivision Act 1988 (Vic).

In processing the application, Council mailed out written notice to persons it considered affected by the variation of easement, including Skabal and its tenants of the benefitting land. However, due to a combination of administrative errors and sheer bad luck, the notice was never brought to the attention of Skabal. In the absence of any opposition, Council granted the Bonomos’ permit application, and the plan of variation of easement was registered on 14 February 2018. Skabal was alerted to the variation of easement upon receiving a letter from the Bonomos’ solicitor asking the tenants of Skabal’s property to cease use of the portion of the easement that had been removed.

In October 2018, Skabal applied to VCAT to have the permit cancelled. In Skabal Pty Ltd v Boroondara CC [2019] VCAT 1160,

Senior

the Tribunal ordered that it did not have the power to cancel the permit as ‘the variation of an easement is a form of development. Once the variation has occurred and it has been registered on the relevant Certificate of Title, the Tribunal has no power to consider cancellation of the permit’ [59].

Justice Richards agreed with the Tribunal in its findings that it did not have the power to cancel the permit under section 87 of the Planning and Environment Act 1987. The ‘development’ to which the permit related was substantially carried out when the plan of variation of easement was registered on the title to the encumbered land in February 2018. By the time Skabal requested the Tribunal to cancel the permit, the permit was spent and could no longer be cancelled under s 88(b).

Section 88(a)-(c) of the Planning and Environment Act 1987 sets out three circumstances in which the Tribunal may exercise its power to cancel or amend a permit. Unless paragraph (a), (b) or (c) applies, the Tribunal has no power to cancel or amend the permit. Her Honour held that a permit to remove or vary an easement does not fall within the operation of section 88(a), which ‘concerns a permit relating to the construction of buildings or the carrying out of other works’ [58(c)], nor does it fall within section 88(c) as the variation of an easement does not relate to the use of the land, but rather it ‘authorises an alteration of proprietary interests in land’ [58(d)]. Her Honour agreed with the Tribunal’s reasoning in categorising the removal or variation of an easement as the ‘development of land’ under section 88(b).

However, the balance of section 88(b) stipulates that where the ‘development of land’ to which a permit relates has been substantially carried out, the Tribunal no longer has the power to cancel the permit. In this case, upon registration of the plan of variation of easement, the permit was spent and the ‘development of land’ carried out. At that point in time, Council was unable to cancel the permit under section 88(b). Her Honour noted that despite this application failing, it was open to Skabal to make its own application to Council for a permit to vary the easement to reinstate it to its original length.

Regional Billboard Co Pty Ltd v Surf Coast SC [2020] VCAT 735

Electronic Promotion Sign condition, which restricted advertisements to only those which contained ‘materials/imagery that complement the surf and beach culture of Torquay ‘etc. held to be invalid.

The Tribunal considered the validity of Condition 4 of a planning permit granted by the Surf Coast Shire Council (Council) to Regional Billboard Co Pty Ltd for the installation and display of an Electronic Promotion Sign at a Torquay site. The Tribunal found the condition to be vague and uncertain, and accordingly invalid.

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The Tribunal, constituted by Member Kerrie Birtwistle, reviewed Condition 4 of the permit that read, ‘The sign hereby permitted must only contain materials/imagery that complement the surf and beach culture of Torquay through the dominance of images and pictures of surfing and the coast, to the satisfaction of the Responsible Authority’. Regional Billboard Co submitted that the condition was unworkable, lacked clarity and unreasonably restricted the visual content of the sign.

Council submitted that the purpose of Condition 4 was to ensure that anything displayed on the Electronic Promotion Sign directly linked to the Torquay Surf Centre. Condition 4 reflected both the design objectives and decision guidelines of the DDO7, which provide for a clear direction on signage imagery. The condition was a prerequisite for their support for the issue of a planning permit.

The Tribunal held that in order for a responsible authority to impose conditions on planning permits, they must meet the common law tests for validity. Broadly, these relate to relevance, certainty and reasonableness. Where a permit condition is too vague or uncertain, it can be declared invalid.

Council listed a number of examples of what types of signage would not be consistent with Condition 4 (tourism, local land development, TAC advertising, CFA advertising) however the Tribunal found that each of these advertisements could meet Condition 4 merely by containing imagery/materials that complement the surf and beach culture of Torquay (subject to Council’s satisfaction, per condition 4).

Despite Council’s submission that Condition 4 was intended to ensure that any images displayed on the sign were linked to the Torquay Surf Centre, the Tribunal found that Condition 4 did not provide for this. Condition 4 as read did not refer to the Torquay Surf Centre at all.

The Tribunal found that the condition required an assessment of terms that are not defined under the Planning Scheme, such as ‘surf and beach culture’ and ‘dominance of images and pictures’. These words required a subjective assessment that provided no certainty to the parties. Council was unable to articulate with any certainty what nature of signage would be supported by it, leaving the permit holder with very little clarity as to its obligations and rights under the permit.

Condition 4 was ordered to be deleted from the planning permit on the basis that it lacked clarity.

Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council [2020] VSC 512 (18 August 2020)

Bald Hills Wind Farm Pty Ltd sought judicial review of the South Gippsland Shire Council’s resolution that the wind farm produced noise constituting an ‘intermittent nuisance’. Bald Hills Wind Farm’s application was unsuccessful.

Five local residents (the Complainants) submitted noise complaints to the South Gippsland Shire Council pursuant to s 62 of the Public Health and Wellbeing Act 2008 (Vic) (the Act), which the Council investigated. The Council did not to take administrative action against Bald Hills Wind Farm or attempt to prosecute under the Public Health and Wellbeing Act 2008 (Vic) (as it is empowered to do), but instead passed a resolution in March 2019 to the effect that the noise transmitted from the wind farm constituted an ‘intermittent nuisance’, adversely impacting on the health and wellbeing of the individual complainants.

Bald Hills Wind Farm sought judicial review of the Council’s resolution on the basis that its decision was subject to jurisdictional error. It sought an order of certiorari to quash the decision or seek a declaration that the Council’s resolution was invalid and void. The defendants, made up of the Council and five local landowners, opposed the application.

This was a judicial review proceeding, that is, the Court did not consider the merits of the Council’s resolution as to whether the wind farm was in fact creating a nuisance. The Complainants have brought their own proceedings in nuisance against the wind farm operator seeking damages and injunctive relief (as yet unresolved).

Bald Hills Wind Farm was held to have standing to bring the application based on the fact that the Council’s finding of nuisance adversely affected its reputation. Bald Hills Wind Farm argued that the Council did not give consideration to the ‘reasonableness factors’ that are relevant to a determination of nuisance at common law:

‘To constitute a nuisance, the interference must be unreasonable. In making that judgment, regard is had to a variety of factors including: the nature and extent of the harm or interference; the social or public interest value in the defendant’s activity; the hypersensitivity (if any) of the user or use of the claimant’s land; the nature of established uses in the locality (eg residential, industrial, rural); whether all reasonable precautions were taken to minimise any interference; and the type of damage suffered.’ (Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management 2012] WASCA 79)

The Court found that those reasonableness factors were not mandatory considerations, and even if they were, the wind farm operator did not establish that the Council disregarded any matter put to it, or that it overlooked anything that was material to its finding.

In response to the application to quash the decision, Her Honour held the Council’s resolution had no legal effect or consequence therefore there was nothing that could be quashed. A finding of reputational damage is not a legal effect that can be quashed by an order in the nature of certiorari.

Importantly, the Court held that a council would not fall into jurisdictional error just because it made a finding of nuisance that was later found to be wrong. While a council must address itself to the right question and take into account mandatory considerations (i.e ‘tick’ all the administrative boxes), a wrong answer to the question is nonetheless and error made within its jurisdiction.