When is a ‘landscape plan’ an ‘engineering plan’ - Whittlesea City Council v AV Jennings Properties Ltd [2026] VSC 606
On 24 September 2026, the Supreme Court of Victoria delivered judgment in an appeal by Whittlesea City Council (Council) from the decision of the Victorian Civil and Administrative Tribunal (Tribunal) in AV Jennings Properties Ltd v Whittlesea City Council [2024] VCAT 836 (Tribunal decision).
The Court’s decision provides important guidance on the power of councils to charge fees for checking engineering plans and supervising works under sections 15 and 17 of the Subdivision Act 1988 (Vic) (Subdivision Act), including whether landscape plans can be engineering plans.
In the Tribunal decision, the Tribunal found that the landscape plans in dispute were not engineering plans and accordingly could not be the subject of checking and supervision fees. The Tribunal held that engineering plans are to be distinguished from other types of plans by the type of information contained in the plan and also by the purpose for which the plan is prepared, being to convey the scientific or technical design details required for construction. While landscape plans can have elements that could be found in engineering plans, the Tribunal considered that the purpose for which the plans were prepared determined their character.
The Council sought leave to appeal the Tribunal decision. Leave was granted and the appeal was allowed.
On appeal, Finanzio J observed that section 15, properly understood, invites a council, where it considers it necessary, to require a plan which describes precisely how the works approved under the planning permit will be constructed (or what precisely will be constructed). The purpose of the power is to ensure that a council has the ability to check the design, structural integrity and acceptability of works for the subdivision. His Honour held that the defining feature of an ‘engineering plan’ is not the type of works with which it is concerned but, rather, the content of the plan, and that a plan prepared to satisfy a landscape condition of a planning permit is not for that reason excluded from being an engineering plan. Therefore, landscape plans are capable of falling within the meaning of ‘engineering plan’ where they show how the works will be constructed, with specifications and detailed design prepared by an appropriately qualified person.
The Court also held that, to charge a checking fee, the council must have actually ‘required’ the engineering plan under section 15. Section 15 does not prescribe a specific mechanism for doing so, but the power must be clearly invoked and communicated. A planning permit condition can do this, but a condition that merely requires a plan to be submitted for approval is unlikely, on its own, to be enough without a reference to the need for scientific or technical design detail or an express reference to section 15. In this case, only one of the ten permits (which expressly invoked sections 15 and 17) was sufficient on its terms.
On supervision fees, the Court found that the works must be both included in an engineering plan that has been required and approved, and fall within the narrower definition of ‘works’ in section 17(6), namely works to provide roads or public utility services to the land which are, or are to be, the responsibility of the council or a referral authority. Such works may extend beyond road pavement to landscape works within that definition. However, councils cannot charge supervision fees for other council-maintained works falling outside that definition. The Court described as ‘curious’ the result that a council may charge to check plans for works it will ultimately be responsible for, but not to supervise them, and observed that if this is not intended, Parliament should cure the problem.
The matter has been remitted to a differently constituted Tribunal for rehearing, to determine whether any of the disputed plans are engineering plans and which works attract supervision fees.
The decision is important as it confirms that councils may charge checking fees for landscape plans where the plan has the characteristics of an engineering plan and has been properly required. Councils should establish processes for determining when a landscape plan is also an engineering plan, and review their subdivision permit conditions to ensure that any requirement under section 15 is clearly expressed.
Greg Tobin
Principal
M 0412 845 035 | T 03 5225 5252
E gtobin@ha.legal
Kate Morris
Principal
M 0412 845 035 | T 03 5225 5252
E kmorris@ha.legal
Kim Piskuric
Principal Lawyer
M 0412 845 035 | T 03 5225 5252
E kpiskuric@ha.legal
