Legislation relevant to Waterfront Place Port Melbourne Victoria

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Victorian State legislation referenced in this site includes:

  • Property Law Act 1958 – Section 84
    Under this Section Waterfront Place has applied to the Supreme Court of Victoria for a decision to remove restrictive covenants.
  • Planning and Environment Act 1987 – Section 20: specifically Section 20(4)
    In Feb 2011 Council requested the Minister for Planning (Brumby Government) to use his powers pursuant to section 20(4) of the Planning and Environment Act to introduce a mandatory three story height limit over land at 1-11 Waterfront Place, Port Melbourne. DPCD did not support the request.
  • Planning and Environment Act 1987 – Section 60: specifically Section 60(2)
    The City of Port Phillip refused the development proposal because (inter alia) “the application does not satisfy the tests for the variation of a restriction as set out at Section 60(2) of the Planning and Environment Act 1987″. Waterfront Place Pty Ltd has applied to VCAT for a review of this decision. (VCAT P763/2013).
  • Planning and Environment Act 1987 – Section 79
    Under this Section Waterfront Place Pty Ltd has applied to VCAT for a review (VCAT P764/2013) of the City of Port Phillip’s decision to refuse an application (1078/2012) to remove or vary covenants. The VCAT application is made on the basis that Council did not make the decision within the specified time.
  • Planning and Environment Act 1987 – Section 149
    Under this Section Waterfront Place Pty Ltd has applied to VCAT for a review (VCAT P763/2013) of the City of Port Phillip’s decision to refuse its planning application at Waterfront Place.
  • Victorian Civil and Administrative Tribunal Act 1998 – Section 4(2)(d)
    Waterfront Place Pty Ltd has applied to VCAT for a review (VCAT P763/2013) of the City of Port Phillip’s decision to refuse its planning application at Waterfront Place under Section 4(2)(d) because Council’s decision-making process exceeded the time limit, invoking a default decision of a refusal.

Please note that specific sections of an Act may be affected by other Sections of the same Act, other Acts, higher and lower legislation and case law.

Property Law Act 1958 – SECT 84

Link: http://www.austlii.edu.au/au/legis/vic/consol_act/pla1958179/s84.html

84. Power for Court to modify etc. restrictive covenants affecting land

(1) The Court shall have power from time to time on the application of any
person interested in any land affected by any restriction arising under
covenant or otherwise as to the user thereof or the building thereon by order
wholly or partially to discharge or modify any such restriction (subject or
not to the payment by the applicant of compensation to any person suffering
loss in consequence of the order) upon being satisfied-

(a) that by reason of changes in the character of the property or the
neighbourhood or other circumstances of the case which the Court deems
material
the restriction ought to be deemed obsolete or that the
continued existence thereof would impede the reasonable user of the
land without securing practical benefits to other persons or (as the
case may be) would unless modified so impede such user; or

(b) that the persons of full age and capacity for the time being or from
time to time entitled to the benefit of the restriction whether in
respect of estates in fee-simple or any lesser estates or interests in
the property to which the benefit of the restriction is annexed have
agreed either expressly or by implication by their acts or omissions
to the same being discharged or modified; or

(c) that the proposed discharge or modification will not substantially
injure the persons entitled to the benefit of the restriction
:

Provided that no compensation shall be payable in respect of the discharge or
modification of a restriction by reason of any advantage thereby accruing to
the owner of the land affected by the restriction unless the person entitled
to the benefit of the restriction also suffers loss in consequence of the
discharge or modification nor shall any compensation be payable in excess of
such loss; but this provision shall not affect any right to compensation where
the person claiming the compensation proves that by reason of the imposition
of the restriction the amount of consideration paid for the acquisition of the
land was reduced.

(2) The Court shall have power on the application of any person interested-

(a) to declare whether or not in any particular case any land is affected
by a restriction imposed by any instrument; or

(b) to declare what upon the true construction of any instrument
purporting to impose a restriction is the nature and extent of the
restriction thereby imposed and whether the same is enforceable and if
so by whom.

(3) The Court may before making any order under this section direct such
inquiries (if any) to be made of any local authority or such notices (if any)
whether by way of advertisement or otherwise to be given to such of the
persons who appear to be entitled to the benefit of the restriction intended
to be discharged, modified or dealt with as, having regard to any inquiries,
notices or other proceedings previously made given or taken the Court thinks
fit.

(4) Any order made under this section shall be binding on all persons whether
ascertained or of full age or capacity or not then entitled or thereafter
capable of becoming entitled to the benefit of any restriction which is
thereby discharged, modified or dealt with and whether such persons are
parties to the proceedings or have been served with notice or not.

(5) An order may be made under this section notwithstanding that any
instrument which is alleged to impose the restriction intended to be
discharged, modified or dealt with has not been produced to the Court, and the
Court may act on any evidence of such instrument as it thinks fit.

(6) This section shall apply to restrictions whether subsisting on the
thirty-first day of December One thousand nine hundred and eighteen, or
imposed thereafter and whether the land affected thereby is registered or not,
and in the case of registered land the registrar shall if the restriction has
been noted on the register give effect on the register to the order when
made24.

Planning and Environment Act 1987 – Section 20

Link: http://www.austlii.edu.au/au/legis/vic/consol_act/paea1987254/s20.html

20. Exemption from giving notice

(1) A planning authority may apply to the Minister to exempt it from any of
the requirements of section 19 or the regulations in respect of an amendment.

(2) If the Minister considers that compliance with any of those requirements
is not warranted, or that the interests of Victoria or any part of Victoria
make such an exemption appropriate, the Minister may-

(a) exempt a planning authority from any of those requirements; and

(b) impose conditions on that exemption, including a condition which
requires the planning authority to give notice of the amendment in any
specified manner.

(3) The Minister cannot exempt a planning authority from the requirement to
give notice-

(a) to the owner of any land, of an amendment which provides for-

(i) the reservation of that land for public purposes; or

(ii) the closure of a road which provides access to that land; or

(b) to any Minister prescribed under section 19(1)(c); or

(ba) under section 19(2) or (3), if the amendment proposes a change to
provisions relating to land set aside or reserved as public open
space; or

(c) to the Minister administering the Land Act 1958 under section
19(1)(d).

(4) The Minister may exempt himself or herself from any of the requirements of
sections 17, 18 and 19 and the regulations in respect of an amendment which
the Minister prepares, if the Minister considers that compliance with any of
those requirements is not warranted or that the interests of Victoria or any
part of Victoria make such an exemption appropriate.

(5) The Minister may consult with the responsible authority or any other
person before exercising the powers under subsection (2) or (4).

(6) The Minister cannot, under this section, exempt a planning authority or
himself or herself from any requirement if the amendment is to include a DAC
Activity Centre Area within the meaning of Part 4AA or to amend the boundaries
of such an Area.

Planning and Environment Act 1987 – Section 60

Link: http://www.austlii.edu.au/au/legis/vic/consol_act/paea1987254/s60.html

60. What matters must a responsible authority consider?

(1) Before deciding on an application, the responsible authority must
consider-

(a) the relevant planning scheme; and

(b) the objectives of planning in Victoria; and

(c) all objections and other submissions which it has received and which
have not been withdrawn; and

(d) any decision and comments of a referral authority which it has
received; and

(e) any significant effects which the responsible authority considers the
use or development may have on the environment or which the
responsible authority considers the environment may have on the use or
development.

(1A) Before deciding on an application, the responsible authority, if the
circumstances appear to so require, may consider-

(a) any significant social and economic effects of the use or development
for which the application is made; and

(b) the approved regional strategy plan under Part 3A; and

(c) any amendment to the approved regional strategy plan under Part 3A
adopted under this Act but not, as at the date on which the
application is considered, approved by the Minister; and

(d) the approved strategy plan under Part 3C; and

(e) any amendment to the approved strategy plan under Part 3C adopted
under this Act but not, as at the date on which the application is
considered, approved by the Minister; and

(ea) the approved strategy plan under Part 3D; and

(eb) any amendment to the approved strategy plan under Part 3D adopted
under this Act but not, as at the date on which the application is
considered, approved by the Minister; and

(f) any relevant State environment protection policy declared in any Order
made by the Governor in Council under section 16 of the
Environment Protection Act 1970; and

(g) any other strategic plan, policy statement, code or guideline which
has been adopted by a Minister, government department, public
authority or municipal council; and

(h) any amendment to the planning scheme which has been adopted by a
planning authority but not, as at the date on which the application is
considered, approved by the Minister or a planning authority; and

(i) any agreement made pursuant to section 173 affecting the land
the subject of the application; and

(j) any other relevant matter.

(2) The responsible authority must not grant a permit which allows the removal
or variation of a restriction (within the meaning of the Subdivision Act 1988)
unless it is satisfied that the owner of any land benefited by the restriction
(other than an owner who, before or after the making of the application for
the permit but not more than three months before its making, has consented in
writing to the grant of the permit) will be unlikely to suffer-

(a) financial loss; or

(b) loss of amenity; or

(c) loss arising from change to the character of the neighbourhood; or

(d) any other material detriment-

as a consequence of the removal or variation of the restriction.

(3) Despite subsection (1)(c), if no notice is required to be given under
section 52(1) or 57B or the planning scheme of an application, the responsible
authority is not required to consider any objection or submission received in
respect of the application before deciding the application.

(4) Subsection (2) does not apply to any restriction which was-

(a) registered under the Subdivision Act 1988; or

(b) lodged for registration or recording under the
Transfer of Land Act 1958; or

(c) created-

before 25 June 1991.

(5) The responsible authority must not grant a permit which allows the removal
or variation of a restriction referred to in subsection (4)
unless it is
satisfied that-

(a) the owner of any land benefited by the restriction (other than an
owner who, before or after the making of the application for the
permit but not more than three months before its making, has consented
in writing to the grant of the permit) will be unlikely to suffer any
detriment of any kind (including any perceived detriment) as a
consequence of the removal or variation of the restriction
; and

(b) if that owner has objected to the grant of the permit, the objection
is vexatious or not made in good faith.

(6) If an application for a permit to remove or vary a restriction referred to
in subsection (4) was made on or after 25 June 1991 and the responsible
authority had made a decision in respect of the application before the
commencement of section 15 of the Planning and Environment (Amendment) Act
1993, the Tribunal must determine in accordance with subsection (5) any appeal
under this Act in respect of that decision.

(7) Nothing in subsection (4), (5) or (6) affects the validity of a permit to
remove or vary a restriction issued under this Act before the commencement of
section 15 of the Planning and Environment (Amendment) Act 1993.

Planning and Environment Act 1987 – SECT 79

Link: http://www.austlii.edu.au/au/legis/vic/consol_act/paea1987254/s79.html

79. Appeals against failure to grant permit

An applicant for a permit may apply to the Tribunal for review of the failure
of the responsible authority to grant the permit within the prescribed time.

Planning and Environment Act 1987 – SECT 149

Link: http://www.austlii.edu.au/au/legis/vic/consol_act/paea1987254/s149.html

149. Application for review

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

(a) a decision of a specified body in relation to a matter if a planning
scheme specifies or a permit contains a condition that the matter must
be done to the satisfaction, or must not be done without the consent
or approval, of the specified body;
or

(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

(c) a decision of a specified body or of a person or body specified in an
enforcement order in relation to a matter if the order requires that
the matter must be done to the satisfaction of that person or body; or

(d) if there is no prescribed time for a decision of a kind referred to in
paragraph (a), (b) or (c), a failure of a person or body to make that
decision within a reasonable time after the matter is referred to it.

(2) An application for review of a decision referred to in subsection (1)(a),
(b) or (c) must be made within 28 days after the day on which the decision is
made.

(3) The responsible authority is a party to any proceedings under this
section.

Victorian Civil and Administrative Tribunal Act 1998 – Section 4

Link: http://www.austlii.edu.au/au/legis/vic/consol_act/paea1987254/s149.html

4. When does a person make a decision?

(1) For the purposes of this Act or an enabling enactment, a person makes a
decision if the person-

(a) makes, suspends, revokes or refuses to make a decision, order,
determination or assessment (including a decision not to make a
decision, order, determination or assessment);

(b) gives, suspends, revokes or refuses to give a certificate, direction,
approval, consent or permission;

(c) issues, suspends, revokes or refuses to issue a licence, authority or
other instrument;

(d) imposes a condition or restriction;

(e) amends or varies any of the things referred to in paragraph (a), (b),
(c) or (d);

(f) makes a declaration, demand, direction or requirement;

(g) retains or refuses to deliver up an article;

(h) does or refuses to do any other act or thing.

(2) For the purposes of this Act or an enabling enactment-

(a) a decision is made under an enactment if it is made in the exercise or
purported exercise of a function conferred or imposed by or under that
enactment;

(b) a decision that purports to be made under an enactment is deemed to be
a decision made under that enactment even if the decision was beyond
the power of the decision-maker;

(c) a refusal by a decision-maker to make a decision under an enactment
because the decision-maker considers that the decision cannot lawfully
be made is deemed to be a decision made under that enactment to refuse
to make the decision;

(d) a failure by a decision-maker to make a decision under an enactment
within the period specified by that enactment is deemed to be a
decision by the decision-maker at the end of that period to refuse to
make the decision.

(3) If a person who made a decision by reason of holding or performing the
duties of an office or appointment or a position in the public service ceases
to hold or perform the duties of that office, appointment or position-

(a) the person for the time being holding or performing the duties of that
office, appointment or position is deemed to be the decision-maker in
respect of that decision; or

(b) if there is no such person, or if the office or position no longer
exists, a person specified by the President is deemed to be the
decision-maker in respect of that decision.


Last updated: 16 May 2013 | Shortlink: http://wp.me/P3tOu9-jr