In the recent decision of Calderara v Banyule (Calderara) the Victorian Civil and Administrative Tribunal (the Tribunal) considered whether section 149(1)(b) of the Planning and Environment Act 1987 conferred it jurisdiction to review a Council’s decision not to ‘agree’ to an action restricted under a section 173 agreement.

The Tribunal held that it did have jurisdiction to review the agreement and ultimately found in favour of the applicant.

The proposed development was for the construction of two dwellings on land then occupied by one dwelling and a large Cedar tree. The land was burdened by a section 173 agreement (the Agreement), executed in 2012 prior to the sale of the land by the Council, to protect the tree. The Agreement prevented the owner from constructing more than one dwelling on the land ‘unless Council agrees in writing’.  

The Council failed to determine the planning permit application within time. The Owner applied to the Tribunal to review the Council’s failure. It advised at the hearing that it did not support the application to construct the additional dwelling.

Section 149(1)(b) confers upon the Tribunal jurisdiction to review Council decisions under section 173 agreements regarding matters  required to be done to the Councils ‘satisfaction’ or not to be done without the ‘Consent’ of the Council.  

   149  (1)     A specified person may apply to the Tribunal for the review of—

      (b)     a decision of a specified body in relation to a matter if an agreement under section 173 provides that the matter must be done to the satisfaction, or must not be done without the consent, of the specified body and makes no provision for settling disputes in relation to the matter; or

Council contended that the section 149(1)(b) review power was not enlivened as the Agreement did not employ the terms ‘satisfaction’ or ‘consent’ but rather used the word ‘agrees’.  This argument sought to draw a distinction between the Council granting it’s ‘Consent’ and the situation where the Council ‘agrees in writing’. The Owner contended that the Council ‘agreeing’ to the proposal was a akin to the Council providing its ‘consent’ for the purposes of section 149(1)(b).

The Tribunal concluded that a purposive interpretation should be given to the section, holding that it was considering:

“a ‘form’ and ‘substance’ question . Taking the preferred purposive approach, agreeing under clause 2.2 is in substance (if not in form) consent under a section 173 agreement and therefore the Tribunals jurisdiction is enlivened.”

Having reached this conclusion, the Tribunal proceeded to consider the merits of the application and ‘agreed’ to the construction of 2 dwellings on the land.

Following Calderara, Council’s should be aware that the decision on whether to provide ‘consent’ to an action under a section 173 agreement may be reviewed before the Tribunal regardless of whether the word ‘consent’, ‘agree’ or another similar term is employed in the text of the agreement. 

For more information contact:

Greg Tobin
Harwood Andrews
T: 03 5225 5252