A recent VCAT decision (Moorabool Shire Council v Millar & Merrigan Pty Ltd March 2010) has raised an issue with the expiry of subdivision planning permits in Victoria.

The Tribunal determined that plans of subdivision for all stages of a subdivision (not just the first stage) must be certified within two years of the issue of the permit, unless the permit provides otherwise. It has been common practice to assume that stage plans can still be certified within five years provided the first stage is certified within two years.

If plans of subdivision for one or more stages are not certified within the time allowed (two years, if no time frame is provided in the permit), the permit will lapse in relation to uncertified stages. A new permit must then be sought for the subdivision of the uncertified stages (with the cost and risk that entails).

Accordingly, the expiry date in all staged subdivision permits should be checked. If no date is specified, and more than two years are required to have all stages certified from the date the permit was issued, an extension to the expiry date should be sought.

The Tribunal decision is clear in its interpretation of the Planning and Environment Act 1987:

Paragraph 11

I interpret section 68(1)(aa) as requiring certification of all stages of a subdivision within 2 years of the issue of the permit, unless the permit contains a different provision. To my mind there is no ambiguity. There is a clear provision that enables staged subdivisions to be certified at different times within the permit, but if there is no such condition, 2 years from the issue of the permit is the limit after which the permit expires.

The Deputy President stated that if developers want flexibility in staging of a subdivision, they must ensure that appropriate conditions are placed on a permit.

This issue should therefore also be considered when you are applying for a permit for a new development that involves a staged subdivision to ensure that the appropriateness of conditions is assessed.