Appellant v Respondents

"To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To encourage the intensive development of business centres for retailing and other complimentary commercial, entertainment and community uses."

4 The appellant wishes to develop its land for the purposes of shops, a convenience restaurant and associated car parking. The complex is intended to be anchored by a 2,160 square metre supermarket, with up to six specialty shops having a combined floor area of 760 square metres alongside the supermarket and the convenience restaurant standing alone in a 174 car space car park.

5 Both "shop" and "convenience restaurant" are as of right uses within the Business 1 zone.

6 The appellant requires a permit for the construction of the proposed buildings and the carrying out of the proposed works comprised in the development.

7 The appellant's proposal is opposed by the first respondent ("the Council") on strategic planning grounds. The Council contends that the development should not be permitted because it would interfere with the establishment of a village centre at a preferred location some 700 metres to the north of the appeal land.

8 The appeal land contains some valuable remnant vegetation which the appellant proposes to substantially retain on a rear section of the site directly behind the proposed supermarket.

9 Initially both the Department of Sustainability and Environment (being charged with responsibility in connection with the native vegetation) and VicRoads (being charged with responsibility for the Midland Highway) objected to the permit. The appellant has, however, been able to reach an accommodation with both these referral authorities on the basis of proposed permit conditions.

10 The Council failed to make a decision in relation to the appellant's development application within the prescribed time and in December 2004 the appellant applied to the Victorian Civil and Administrative Tribunal ("the Tribunal") for a review of the Council's failure to make a decision.

11 The application for review was heard by a senior member of the Tribunal in April 2005, and in June the Tribunal directed that the development permit not be granted. The Tribunal gave written reasons for its decision and it is apparent from these reasons that the Tribunal so directed on the basis of its conclusions concerning the broader strategic and site specific context of the proposed development.[1]

12 If shop were a section 2 use and a permit were required for that use, it is clear that the Tribunal could have held that a permit for that use was inappropriate on the basis of the principles stated in Kentucky Fried Chicken Pty Ltd v Gantides[2]:

"If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration."

Although the above passage is expressed by reference to a "proposed development" the case was concerned with an application for a permit to use land for the purposes of takeaway food premises. It was not concerned with a case where such use was as of right. This appeal is critically concerned with the ambit of relevant considerations which affect the discretion to grant a development permit intended to accommodate an as of right use.

13 The appellant contends that the Tribunal erred in law in that:

(1) Having regard to the subject matter, scope and purpose of the discretion to grant a permit for the development of the subject land, the Tribunal was only entitled to have regard to matters relating to the development of that land and not relating to the use of the land.

(2) The Tribunal erred by having regard to the relative merits of the appellant's site and the Council's preferred site for the establishment of a village or neighbourhood centre.

14 It was conceded in argument by Mr Pizer on behalf of the appellant that the first proposition formed the essential basis of the appellant's appeal. The second could not succeed if the first failed.

The Strategic Planning Issue

15 The Tribunal addressed the history of recent strategic planning for the area surrounding the appeal site. It introduced this history by stating:

"Epsom is part of Bendigo's northern growth corridor. Over the last decade, there have been a number of strategic reports dealing with the future development of the corridor. From the perspective of the Responsible Authority this strategic work has lead to the conclusion that there should be a village centre anchored by a supermarket, established in the Epsom area, and that the preferred location for such a village centre is at the intersection of Howard Street and the Midland Highway. The site for the development of a village centre in this location is founded in part by the redevelopment of the Epsom Recreation Reserve. The evolution of strategic thinking in this corridor was described in considerable detail in the submissions and evidence before the Tribunal, I will only attempt to give a brief overview of this history."[3]

16 It then referred to the Bendigo Northern Corridor Study 1997, Commercial Land Strategy 2004, proposed Amendment C60 to the planning scheme, the Northern Corridor and Huntley Local Structure Plan 2005 and Amendments C69 and C70. These documents demonstrate an evolution of strategic planning for the area. This evolution has culminated in proposed planning scheme amendments which would rezone the appeal land from a Business 1 zone to a Business 3 zone. Shop is a prohibited use in a Business 3 zone. The amendments would further facilitate redevelopment of Council's preferred location for a village centre.

17 The Tribunal summarised the relevant effect of the Northern Corridor and Huntley Local Structure Plan 2005 and amendments C69 and C70 as follows:

"The structure plan, among things considered the preferred location for a village centre in Epsom. A number of possible sites where compared, the design objectives both general and specific developed in the Commercial Land Strategy 2004 were used as a basis for comparison and as previously indicated the Howard Street site was assessed as being the preferred location. The local structure plan also recommends the rezoning of the subject land and adjoining land in the Business 1 zone, to Business 3 zone. The Responsible Authority undertook quite extensive public consultation in the preparation of the structure plan.

The council has a fairly comprehensive vision for a village centre on the Howard Street site, the combination of council owned land, and adjoining privately owned land, results in a site for the village with an area of approximately 7.6 hectares. The council hopes to create an integrated village centre incorporating a supermarket, specialty shops, community facilities, open space and a new primary school. The council has called for expressions of interest in the development of the site. A schematic plan for the development of the village centre formed part of Ms Allen's submission:

Amendment C70 proposes the rezoning of the Howard Street land. Amendment C69 proposes the inclusion of the structure plan as a reference document in the planning scheme, and among other things proposes the rezoning of six sites, including the subject land. Both amendments are at an early stage in the statutory process, with Amendment C69 only going on exhibition on the day of the hearing."[4]

18 The Tribunal was entitled to take into account the provisions of the structure plan and the proposed amendments. The responsible authority was required to take into account the decision guidelines set out in cl.34.01-4 of the planning scheme. These in turn referred to the decision guidelines in cl.65. The responsible authority must consider a number of matters under cl.65.01 including the orderly planning of the area. It must also consider the matters set out in s.60 of the Planning and Environment Act 1987 ("the Act"). Section 60(1A) requires a responsible authority if the circumstances appear to so require to consider:

"(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

...

(j) any other relevant matter."

19 The structure plan is a strategic plan adopted by the municipal council. The proposed amendments were also potentially relevant matters. Although they had not been adopted by the planning authority (as envisaged by s.60(1A)(h)) they were seriously entertained planning proposals in the sense which I shall elaborate.

20 The Tribunal went on to further address the underlying strategic planning issue which was relied upon by the Council.

"The strategic land use issue in this application is the preferred location for a neighbourhood centre to serve the newly expanding community north of Bendigo. This application is relevant to that issue, because it is broadly accepted by the parties that a supermarket will be the retail anchor around which a neighbourhood centre will develop, and that for the foreseeable future there is only room for one small supermarket in the locality. The Responsible Authority's strategies identify the preferred location for the neighbourhood centre as being approximately 700 metres north of the subject land at the intersection of Midland Highway and Howard Street.

The Responsible Authority has clearly developed a considerable body of strategic work to arrive at its preferred strategy for this northern corridor. Nevertheless, from the perspective of the planning scheme this work remains embryonic, because the planning scheme has not yet been amended to give effect to this strategic plan. The embryonic nature of this strategy adds another layer of complexity to the question of whether or not the strategy is a relevant consideration."[5]

21 The Tribunal then referred to an earlier decision of the Tribunal in a case in which it was accepted that it would be premature to determine an application for a permit for substantial redevelopment in Port Melbourne when relevant planning policy for the area was "in a state of flux."[6] The Tribunal stated:

"So therefore I agree that the TEAC decision is support for the contention that a particular proposal may be premature in a context where relevant planning considerations are being actively reviewed. In this particular case the issue remains, is the strategic land use issue at the heart of this application, a relevant consideration, where a permit is only required for development."[7]

As will be seen the Tribunal took up the notion of prematurity in its ultimate conclusion.

22 The Tribunal then referred to another decision by a Deputy President of the Tribunal in which she held that decisions concerning development and built form must be made in a way "that supports the overall vision and objectives of the planning policy framework." I do not, however, read the passage quoted by the Tribunal in the present case as bearing directly on the issue in this matter.

23 The Tribunal then turned to the line of authority pursuant to which the Tribunal has for many years held that the future use and development of land resulting from a subdivision must be a primary consideration affecting a decision whether or not a permit should be granted. Once again, it seems to me that the approach adopted with respect to subdivision cannot be simply transferred to a case such as the present. Subdivision has its own peculiarities as both the legislative scheme applicable to it and the structure of the planning scheme demonstrate.[8] It is difficult to see how a responsible authority could consider the suitability of land for subdivision without some consideration of its potential future use.

24 The Tribunal then addressed the arguments put to it on behalf of the appellant based upon the principle stated in National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Limited[9] (the "National Trust case"). Those arguments were further elaborated in this Court and I shall return to them in due course.

25 Ultimately the Tribunal concluded with respect to the strategic planning issue as follows:

"However, in this case the issue is the establishment of a neighbourhood centre, and:

•the mix of uses which can be established within the centre,

•the mix of uses which will surround the centre and usefully interact with it,

•the infrastructure which supports the neighbourhood centre including the road system, and

•the location of the neighbourhood centre in relation to the community which it is intended to serve

are issues which are fundamental to the purposes of planning. In many respects these issues arise because here we are dealing with a rapidly developing green fields area on the periphery of a major provincial city.

The subject application is only relevant to this broader planning issue because it was argued by the Responsible Authority, and not seriously contested by the Applicant, that a small supermarket will be the anchor upon which a neighbourhood centre is established and that if a supermarket is established on the subject land, then it is highly unlikely another developer would develop a supermarket on nearby land. The issue is essentially one of timing in relation to the pattern of growth in the area.

My conclusion is that in any development application the future use or development of the land is a relevant consideration. Where the development control arises from the zone provisions, then relevant considerations must relate to the purposes of the zone control and the land within the zone. Because the zones are fundamental building blocks upon which planning schemes are based zone purposes would usually encompass a broader range of considerations than would be the case for an overlay control or a particular purpose provision. In the case of the Business 1 zone, and shop use in particular, there is a functional hierarchy relevant to neighbourhoods, sub regions and regions which may on a case by case basis be a relevant consideration.

It follows from the above conclusion the I am of the opinion that the strategic land use issue in this case is a relevant consideration."[10]

26 It can be observed that these passages first identify the critical issue in this case as one of timing but then go on to conclude not merely that such issues may be relevant to a development applicaton but also that "in any development application the future use or development of the land is a relevant consideration." It is doubtful that this proposition was necessary to the Tribunal's decision or that so stated by reference to the alternatives of "use or development" that it is particularly helpful. Nevertheless, I accept Mr Appudurai's submission that the fine print of the Tribunal's decision should not be read over critically.[11]

27 Furthermore, it is clear that the Tribunal ultimately founded its decision on a specific conclusion that in the circumstances of this case the proposed development was premature.

28 The Tribunal went on to state:

"Having concluded that the strategic land use issue in dispute in this application can be a relevant consideration in the decision that must be made, then one could reasonably conclude that the application is premature because the extensive planning process embarked upon by the Responsible Authority has not yet been resolved. However, it is argued on behalf of the Applicant that the Responsible Authority has a conflict of interest, because it is a land owner affected by the outcome, and that the planning scheme amendments it proposes are or could be seen as self serving."[12]

29 The Tribunal then considered whether the responsible authority should be entitled to succeed on the basis of prematurity when the responsible authority could be said to have a conflict of interest because it was a landowner which would be affected by the outcome of the case.

"The Responsible Authority does have a conflict of interest of sorts. However, in my view this does not necessarily indicate that their strategic vision for this locality is flawed, it may be the case that the Responsible Authority is using the availability of public land to leverage what will be a desirable planning outcome for the local community. Ultimately, the planning scheme amendments on exhibition, are part of the process to resolve this question.

Nevertheless, I think that I have to turn my mind to the relative merits of the Responsible Authority's preferred outcome, vis a vis that of the permit applicants. It would be manifestly unjust to refuse or adjourn an application on the basis that its premature, if the competing planning vision was patently flawed or inferior.

In this particular case I believe that there is a reasonable prospect that the various planning processes underway will ultimately support the Responsible Authority's conclusion that the Howard Street site is to be preferred, because:

• It is a larger site upon which it should be possible to integrate the proposed retail facility with other community and recreational facilities including the local primary school;

• The size of the site should allow for expansion of the facilities provided, to meet the needs of a growing community;

• the Howard Street site is better located in relation to the residential community it is designed to serve;

• The Howard Street is better located in relation to the road network and is likely to be more accessible, to motorists, cyclists and pedestrians.

It is my conclusion that in respect of the broader strategic context, the proposed development is premature."[13]

30 The Tribunal went on to consider the proposed development in its site context. It concluded firstly, that the landscaping proposed for the development was unsatisfactory and secondly, that the site would be subject to flooding. It then stated that both these considerations "militated against the grant of a permit", but also stated that it had indicated during the course of the hearing that if it had regarded the landscape issue as potentially fatal it would have given the appellant a further opportunity to address that issue by way of further submissions.

31 Ultimately the Tribunal concluded:

"Having regard to my discussion of the issue surrounding the broader strategic and size (sic.) specific context of the proposed development, it is my conclusion that the decision of the Responsible Authority should be affirmed and no permit granted."[14]

32 In this Court Mr Pizer submitted that the appellant's case comprised three propositions:

(1) The Tribunal did as a matter of fact take use related matters into account;

(2) Use related matters were irrelevant to the Tribunal's inquiry; and

(3) The taking of use related matters into account affected the Tribunal's decision.

33 Insofar as Mr Pizer's first proposition is concerned it is common ground that the Tribunal did take use related considerations into account.

34 The second proposition addresses the fundamental issue in this appeal. In my opinion the question in issue must be answered by reference to the particulars facts of this case. I do not accept that use considerations are absolutely irrelevant to development applications. Most obviously in a case such as the present the fact that a proposed development will accommodate an as of right shop use might normally be expected to reinforce the weight to be given to the second purpose of the zone and favour intensive development.

35 Section 4(2) of the Act states as an objective of the planning framework established by the Act:

"(e) to facilitate development which achieves the objectives of planning in Victoria and planning objectives set up in planning schemes;"

36 It necessarily follows that the fact that development may facilitate a use which accords with relevant planning objectives will be relevant to a consideration whether it should be permitted in the form proposed.

37 Conversely, if development proposed was clearly intended to accommodate a prohibited use the better view is that this would be a relevant reason for its refusal.

38 I accept, however, that a requirement for a development permit does not convert a section 1 use into a section 2 use. To so hold would subvert the fundamental structure of the zone controls. Clause 31 of the planning scheme provides that in each zone and schedule to a zone which contains a table of uses, the controls over the use of land are divided into three sections. The fundamental scheme of these sections is that a use in section 1 does not require a permit. A use in section 2 requires a permit. A use in section 3 is prohibited.

39 The current case is however one which concerns the sequence of development. As the Tribunal said:

"The issue is essentially one of timing in relation to the pattern of growth in the area." [15]

40 The notion of "orderly planning" which is referred to as a relevant consideration in the planning scheme, necessarily embraces some consideration of the effect on use of the sequence of development.

41 In the present case a careful reading of the Tribunal's reasons demonstrates that it regarded the circumstances before it as falling within a particular sub-category of such cases. It was satisfied this was a case where, because of strategic planning considerations, the determination of the application should be regarded as premature.

42 Such cases may be thought to involve the application of an underlying notion of the balance of convenience. If the determination of a permit application under the current controls has the potential to materially impact upon the implementation of a relevant strategic plan or seriously entertained planning proposal then it may be refused as premature. It may not be in the public interest to grant the permit if the granting of the particular application has the capacity to materially impact upon the satisfactory implementation of a plan of broader strategic significance.

43 This principle was approved by the Full Court of this Court in Portland Properties v Melbourne & Metropolitan Board of Works[16]. In Whitehorse City Council v Golden Ridge Investments Pty Ltd[17] the Court of Appeal affirmed the principle stated in the Portland Properties case in the following dicta:

"In that case the applicant sought a permit to develop and use an industrial estate upon land currently zoned rural. The permit was refused on the grounds that the development would be premature and that the grant of a permit would prejudice the future planning of the area. The then Town Planning Appeals Tribunal accepted the responsible authority's contention that the land which was currently zoned rural would probably come within one of the "Green Wedges" proposed in the strategy document published by the responsible authority entitled The Future Growth of Melbourne. Smith J (with whom Adam J agreed) observed:

'... in the view of the Tribunal, the proposals referred to would probably be brought into force and the subject land included within one of the green wedges. And as the effect of the proposals was that the lands within the green wedges were to be kept as open space between corridors of development, the conclusion so stated by the Tribunal negatived the appellant's first argument. Far from the appropriate use having ceased to be rural and become industrial, the probable future course of development of the locality made a strict confinement to use as open space the appropriate form of use for this land.'

After further considering the Tribunal's reasons Smith J concluded:

'... I consider that it was open to the Tribunal, on the material before it, to hold that the proposed use was premature; and I consider that, having regard to the way the case was conducted before it, the Tribunal was entitled to take into account the proposed green wedges and the proposals relating to them which were contained in the publication The Future Growth of Melbourne. Those matters, in my view, were relevant to a consideration of the appellant's contention that the appropriate use of the land had ceased to be rural and had become industrial.'

In our view it is clear that the majority of the Court accepted that it was open to regard the strategic plan for metropolitan Melbourne including green wedges as both relevant and potentially determinative of the case before the Tribunal."

44 It can be seen that in the Portland Properties case Smith J expressed his conclusion specifically by approving the Tribunal's reliance on the concept of prematurity. Likewise, as noted above, the Tribunal has subsequently applied this specific concept in other circumstances such as the TEAC case. In my view it is clear that in the present case the Tribunal deliberately applied this concept of prematurity to the facts before it. It ultimately concluded that the strategic planning circumstances rendered the grant of a permit "premature." It did not reject the proposal outright. Insofar as it considered the relevance of land use considerations to a permit application for development approval, it ultimately applied such considerations specifically within the context of asking itself whether the proposal should be regarded as "premature."

45 Mr Pizer submitted that the Portland Properties case can be relevantly distinguished because it involved an application for both development and use permission. I do not accept that this is so. The case was centrally concerned with development questions. Self-evidently development independently of use was inimical to the proposed green wedge. It was "the probable future course of development of the locality" which made confinement of the use to open space appropriate. Such confinement constituted a confinement of development. The principle stated by the Full Court is potentially applicable to both development and use permit applications it turns upon the material inconsistencies of the permit application and the relevant strategic plan.

46 In the present case the Tribunal considered whether "the proposal referred to would probably be brought into force" a matter likewise specifically considered in the Portland Properties case[18].

47 The Tribunal expressly concluded[19] that there is a "reasonable prospect" the planning process currently underway will support the Council's strategic position. This conclusion was directly parallel to that reached by the Tribunal's predecessor at first instance in the Portland Properties case. Accordingly, the ultimate decision in that case should be regarded as direct authority permitting the Tribunal in the present case to reason and conclude as it did.

48 If the Council's structure plan and the planning scheme amendments currently sought to be introduced are assessed against the considerations stated in Lyndale & Black Pty Ltd v MMBW[20] and approved in Whitehorse City Council v Golden Ridge[21], then it was open to the Tribunal to regard the planning proposal as decisive because although the relevant planning scheme amendments were at an "embryonic" stage:

(a) the relevant planning proposal was the subject of formal planning scheme amendments;

(b) the planning proposal was being seriously pursued by the responsible authority;

(c) the appellant's development would not merely be inconsistent with the strict letter of the planning proposal but on the evidence had the potential to entirely defeat its purpose; and

(d) the permit sought was one to develop vacant land and was not e.g. a permit to use an existing building for temporary purposes.

49 Most significantly, although as the Tribunal recognised, the amendments by which Council was seeking to implement the proposal were "embryonic", that factor was countervailed by the fundamental inconsistency of the permit proposal with Council's strategic structure plan and the planning scheme amendments. In this sense the proposal raised the question of balance of convenience to which I have already referred, because the potential damage to the implementation of the proposed strategy in the public interest might fairly be regarded as outweighing those aspects of the case which did not favour the Council.

50 I am also satisfied the application of the "National Trust principle" does not preclude the consideration of the potential relevance of land use considerations with respect to questions of the sequence of development and more particularly the identification of a situation of "prematurity."

51 The National Trust case concerned an application under cl.24(4) of the then Melbourne and Metropolitan Planning Scheme for a permit to erect a building with a height in excess of a specified level. Clause 5A of that planning scheme required the responsible authority to consider among other things the orderly proper planning of the area and the amenity of the area.[22] The National Trust objected to the proposed development because it would require the demolition of an existing historic building in order to proceed. The National Trust contended this was a relevant consideration but the Court rejected this contention.

"In relation to the application under CL24(4) of the Planning Scheme the argument was to the effect that having regard to the provision in CL5A of the Planning Scheme it was a consideration relevant to the grant or refusal of a permit under that sub-clause to exceed the stipulated height that the orderly and proper planning of the area within which the land was situate and the amenity of the neighbourhood would or could be adversely affected by the demolition of an historic building to make way for the projected building of the height sought.

The latter part of this argument meets immediately with difficulty. For the purpose of the grant of the discretion is to control the height of buildings in a particular area. Notwithstanding the general words of clause 5A the responsible authority is not entitled 'to introduce into the considerations affecting the grant of a licence an element foreign to the duties' of the authority in that regard, or to engage 'in a consideration of matters extraneous to the application for a licence', or matter which is 'too remote' therefrom. (Victorian Railways Commissioners v McCartney and Nicholson[23].) 'The discretion must be used and the power exercised bona fide and with the view of achieving ends or objects not outside the purposes for which the discretion or power is conferred.' (Shrimpton v The Commonwealth[24]). The discretion conferred by clause 24(4) is one conferred for the purpose of controlling the height of buildings. In that connection it is proper to have regard to what is prescribed by clause 5A. But to use that discretion for the purpose of endeavouring to ensure the conservation of an historic building and to regulate the orderly and proper planning of the area in which it is situate and the amenity of the neighbourhood, in other respects than with regard to the height of the building, is to endeavour to achieve ends outside the purpose for which the power is conferred and to intrude into the exercise of the discretion matters which are extraneous to it. The responsible authority could not properly refuse the permit under the Planning Scheme on such considerations and could not properly have regard to them in determining whether to grant a permit or not."[25] (References taken to foot.)

52 This principle was applied by Balmford J to planning scheme provisions relevantly taking the form I must consider in Shalit v Jackson Clement Burrows Architects Pty Ltd[26].

53 More recently Morris J has applied this principle when sitting as the President of the Tribunal in Victorian National Parks Association Inc and Mineral Policy Institute v Iluka Resources Limited[27].

54 The appellant contends:

"The discretion conferred by clause 34.01-4 of the Scheme is one conferred for the purpose of controlling the development of land. It follows that, in determining whether to exercise that discretion, the Tribunal is only entitled to have regard to matters relating to the development of that land.

Put another way, to use that discretion for the purpose of endeavouring to control the use of the Land (in order to favour the Council's preferred site for a neighbourhood centre, a site in which the Council had a clear interest) is, to use the language of the 'National Trust' case, 'to endeavour to achieve ends outside the purpose for which the power is conferred and to intrude into the exercise of the discretion matters which are extraneous to it."[28]

55 Whilst it may be accepted that the discretion which the Tribunal was called upon to exercise was granted for the purpose of controlling the development of land and is not a discretion granted for the purpose of regulating use, it does not follow that the use consequences of a development permit will necessarily be irrelevant to the exercise of the discretion.

56 In a particular case they may be relevant to the question whether a particular sequence of development constitutes orderly planning. Thus, a requirement for a development permit does not transform a section 1 use into a section 2 use, but the consequences for land use of a development permit may, in appropriate circumstances, constitute factors which either favour or count against the grant of the permit. In the present case it was open to the Tribunal to conclude that the strategic planning considerations affecting the site rendered a decision as to the appropriate form of its development premature.

57 It follows that the appellant fails on the first question of law raised by it and as a consequence must also fail upon the second.

58 In the circumstances it is unnecessary to consider Mr Appudurai's alternative submission that read as a whole the Tribunal's reasons demonstrate that it also rejected the proposal for site specific reasons in any event.

[1] The Tribunal uses the phrase "size specific context" in its conclusion, but I am satisfied this is a typographical error. The Tribunal's conclusion is intended to refer back to those matters previously discussed by it under the headings "The Proposed Development and the Broader Strategic Context" and "The Proposed Development and the Site Context."

[2] [1979] HCA 20; 140 CLR 675 at 687 by Stephen J (with whom Gibbs, Mason and Aikin JJ agreed)

[3] Burns Bridge Services Pty Ltd v Greater Bendigo CC (Red Dot) [2005] VCAT 1155 (17 June 2005) at [10]

[4] Above at [13]-[15]

[5] Above at [18]-[19]

[6] Teac Australia Pty Ltd v Port Phillip City Council [1999] VCAT 122

[7] Above at [21]

[8] Separate decision guidelines for approval of an application to subdivide land are stated by cl.65.02.

[9] [1976] VicRp 60; [1976] VR 592

[10] Above at [31]-[34]

[11] cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272

[12] Above at [35]

[13] Above at [36]-[39]

[14] Above at [59]

[15] at [32]

[16] (1971) 38 LGRA 6

[17] [2005] VSCA 198

[18] Above at 20

[19] at [38]

[20] (1983) 7 APA 470 at 477

[21] Above at [60]-[62]

[22] Clause 5A was essentially equivalent to cl.65 of the planning scheme.

[23] (1934) 52 CLR at 390, 395, 398

[24] (1945) 69 CLR at 620, 627, 631, and 632

[25] At p.606

[26] [2002] VSC 528

[27] [2004] VCAT 20

[28] Appellant's submissions [38]-[39]