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Update: Municipal councils cannot impose fees for checking and supervising landscape plans because they are not engineering plans. Important learnings from the decision of the Tribunal in AV Jennings Properties Ltd v Whittlesea CC [2024] VCAT 836
The recent decision of the Tribunal in AV Jennings Properties Ltd v Whittlesea CC [2024] VCAT 836 (AV Jennings), has confirmed that, while sections 15 and 17 of the Subdivision Act 1988 (Subdivision Act) permit a municipal council to require an ‘engineering plan’ to be submitted to it relating to the construction and maintenance of works under a planning permit, and noting the council is also permitted to charge for an engineering plan that it prepares or for the costs of supervising the construction of the works, the Tribunal has now confirmed that the ability to levy such fees does not extend to the checking of ‘landscape plans’ and the supervision of such works.
In AV Jennings, the applicant argued, and the Tribunal agreed, that landscape plans are distinct from engineering plans. That is, landscape plans are not engineering plans such that a council is not entitled to charge a checking fee for its review of the landscape plans submitted or the supervision of such works.
It was argued by the Council that because aspects of landscape plans which were the subject of the dispute included earthworks, they became ‘engineering plans’ enlivening Council’s ability to levy fees in respect to their checking and the supervision of the works arising from them. The Tribunal disagreed with this argument, stating:
I find that the plans that are the subject of this dispute are not ‘engineering plans’ for the purposes of section 15 of the Act. I say this because these plans have been prepared for the purpose of meeting the landscape plan requirement in the relevant planning permit and contain the elements of a landscape plan. Whilst these plans might also include earthworks (for example, grading of land) and the construction of structures (for instance, paving), this will not result in a ‘landscape plan’ becoming an ‘engineering plan’ for the purposes of section 15 of the Act. This is because a plan that includes things that may constitute ‘works’ as defined in section 3 of the Act will not become an ‘engineering plan’ if it was not prepared for that purpose.
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I disagree with the Council that I should adopt a flexible interpretation to the term ‘engineering plan’ based on what the Council says was the intent of the Act in establishing a flexible new approach to subdivision…
The effect of the Tribunal’s decision that there is an inherent limitation on a councils’ ability to levy fees for the supervision of landscaping works that are not part of infrastructure projects. The implications of this decision are significant, particularly the development industry in the greenfield space, who succumb to significant fees for the checking of landscape plans and the supervision of those works.
If you consider this impacts your project, please reach out to one of our specialist Land Development solicitors for a further discussion.
