September 16, 2020
In the recent decision of Bayside City Council v Stockland Development Pty Ltd, the Supreme Court of Victoria determined it was lawful for Bayside City Council (Council) to require a permit holder to pay a drainage levy in accordance with the Bayside Drainage Development Contributions Plan (Bayside DDCP) in respect of a development of a retirement village.
The decision arose in the context of an appeal brought by the Council in respect of the Tribunal’s decision in Stockland Development Pty Ltd v Bayside City Council, with the Court ultimately deciding the Tribunal erred on the question of law and allowing the appeal.
The Court was asked to consider whether the development of a retirement village fell within the meaning of the term ‘dwelling’ as it appears in the Bayside DDCP.
The Court decided the term ‘dwelling’ was intended to include all places of residence or abode or living units found in the Bayside Planning Scheme (Scheme). This includes residential developments such as residential aged care facilities, residential buildings, residential villages and retirement villages as well as facilities such as bed and breakfast and group accommodation.
In forming its view, the Court found the definition of ‘dwelling’ in the Bayside DDCP has two ‘arms’. The first arm includes premises that are a ‘dwelling’ as defined in the Scheme. The second arm states the term ‘dwelling’ includes any dwelling contained in the ‘Accommodation Group’ identified under clause 75.01 of the Scheme.
Critically, the Court held the Tribunal’s interpretation of the term disregarded the fact the second arm includes dwellings contained within the ‘Accommodation Group’ of the Scheme. The Court emphasised the need for practical and reasonable meaning to be afforded to the second arm of the definition.
To this end the Court said the draftsperson of the Bayside DDCP intended to use the term ‘dwelling’ in its ordinary meaning, remarking the Bayside DDCP was not written as a formal instrument.
The Court concluded the preferred interpretation of ‘dwelling’ avoids creating a major loophole and anomaly in the Bayside DDCP that would arise if large new residential developments such as aged care facilities, residential buildings, residential villages and retirement villages were exempt from paying the levy.
Please contact one of our team should you require any assistance in interpreting any statutory provisions in Victorian Planning Schemes.