Applicant v First Respondent

1 Viva Energy Australia Pty Ltd (Viva) seeks leave, and if leave is granted, to appeal orders made by the Victorian Civil and Administrative Tribunal (the Tribunal) that summarily dismissed Viva's application for review under s 82 of the Planning and Environment Act 1987 (Vic) (the Planning Act). Leave is sought under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act).

2 The application for review at the Tribunal concerned a decision dated 19 August 2021 by the City of Greater Geelong (the Council) to grant a planning permit to the second respondent, the registered proprietor of land at 130 Heales Road, Lara (the land) for a two-lot subdivision. The land is a corner block at the intersection of Heales Road and McManus Road. It is presently vacant land.

3 Viva owns and operates the Lara LPG Terminal (the terminal), which is licensed as a Major Hazard Facility. The terminal is on McManus Road across from the land. The terminal is connected to Viva's Geelong Refinery by a licensed LPG pipeline (the pipeline). The pipeline runs parallel to McManus Road and continues across Heales Road. The terminal and pipeline operate 24 hours a day, 365 days a year. Viva had lodged an objection to the application for subdivision.

4 The Council's decision granted the permit to subdivide, subject to the submission of modified plans that show a pipeline easement along the west boundary of the site required to be three metres from the edge of the gas pipeline for the extent of the pipeline. Viva's application to the Tribunal raised the same safety considerations as contained in the objection.

5 The Council neither consents nor opposes the granting of leave but opposes the appeal.

6 The land has since been sold and the second respondent took no part in the hearing in this Court.

7 The land is subject to the Greater Geelong Planning Scheme (the planning scheme). It is located geographically within the Industrial 2 Zone (IN2Z). A permit is required to subdivide land within IN2Z. The land is also subject to the Design and Development Overlay (DDO). The land falls within Schedule 18 of this overlay (DDO18, or Schedule 18). DDO18 deals with the 'Geelong Ring Road Employment Precinct' (the precinct). Land subject to DDO18 also requires a permit for subdivision.

8 On 11 May 2021, Viva lodged its objection to the permit application with the Council pursuant to s 57 of the Planning Act, on grounds that the proposed subdivision, located within 250 metres of the terminal, represented 'an unacceptable risk of future encroachment from inappropriate land use and development' and had 'the potential to adversely affect our ability to operate the site'.[1]

9 On 16 September 2021, Viva lodged an application with the Tribunal under ss 82 and 82AAA of the Planning Act for review of the Council's decision. Viva stated that:[2]

(a) it maintained its objections as set out on 11 May 2021;

(b) there remained a residual risk inherent in the subject land's proximity to both the terminal and the pipeline; and

(c) the proposed subdivision did not 'adequately respond to safety and pipeline operation matters and is inconsistent with relevant policy provisions in the Planning Scheme including Clause 13.07-2S (Major Hazard Facilities) and Clause 19.01-3S (Pipeline infrastructure)'.

10 Heales Ventures' statement of grounds seeking summary dismissal[3] before the Tribunal contended that Viva's objection and grounds of review were misconceived because 'the permit trigger associated with DDO18, informed by the design objectives, relevant considerations and relevant decision guidelines, did not confer discretion to consider the risks raised by Viva'.[4] The Council supported the summary dismissal application. The application was dealt with on the papers with Viva, the Council and Heales Ventures all providing written submissions.

11 On 14 April 2022, the Tribunal made orders summarily dismissing Viva's application for review under s 75 of the VCAT Act.

12 Before VCAT and in this appeal it was common ground that Viva had a right to notice and to seek review of a decision under the DDO18 but had no equivalent right under the IN2Z. In summary, the issue was whether Viva was entitled to maintain grounds of objection in the VCAT review application and have them determined on their merit pursuant to its review rights under DDO18.

13 Land subject to the planning scheme is divided into zones that reflect land use and development characteristics. Land is also subject to various other controls by the planning scheme, generally described as overlays.

14 The planning scheme sets out the Council's overarching vision and strategic directions. Under the Planning Policy Framework, a number of policies are set out. Clause 13 deals with 'Environmental Risk and Amenity'. This policy says:

Planning should strengthen the resilience and safety of communities by adopting a best practice environmental management and risk management approach.

Planning should identify, prevent and minimise the risk of harm to the environment, human health and amenity through:

• Effective controls to prevent or mitigate significant impacts.

15 A number of specific environmental risks are then identified including cl 13.07 Amenity, Human Health and Safety. Clause 13.07 - 2S provides:

Major hazard facilities

Objective

To minimise the potential for human and property exposure to risk from incidents that may occur at a major hazard facility and to ensure the ongoing viability of major hazard facilities.

Strategies

Ensure major hazard facilities are sited, designed and operated to minimise risk to surrounding communities and the environment.

Consider the risks associated with increasing the intensity of use and development within the threshold distance of an existing major hazard facility.

Apply appropriate threshold distances from sensitive land uses for new major hazard facilities and between major hazard facilities.

Protect registered or licenced major hazard facilities as defined under Regulation 5 of the Occupational Health and Safety Regulations 2017 from encroachment of sensitive land uses.

16 Clause 19 of the planning scheme deals with Infrastructure. Clause 19.01 - 3S deals with Pipeline Infrastructure. Infrastructure policy provides:

Objective

To ensure that gas, oil and other substances are safely delivered to users and to and from port terminals at minimal risk to people, other critical infrastructure and the environment.

Strategies

Plan for the development of pipeline infrastructure subject to the Pipelines Act 2005.

Recognise existing transmission-pressure gas pipelines in planning schemes and protect from further encroachment by residential development or other sensitive land uses, unless suitable additional protection of pipelines is provided.

Plan new pipelines along routes with adequate buffers to residences, zoned residential land and other sensitive land uses and with minimal impacts on waterways, wetlands, flora and fauna, erosion prone areas and other environmentally sensitive sites.

Provide for environmental management during construction and on-going operation of pipeline easements.

17 Clause 33 of the planning scheme deals with Industrial Zones. Clause 33.02 deals with IN2Z. It sets out the purposes of IN2Z:

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To provide for manufacturing industry, the storage and distribution of goods and associated facilities in a manner which does not affect the safety and amenity of local communities.

To promote manufacturing industries and storage facilities that require a substantial threshold distance within the core of the zone.

To keep the core of the zone free of uses which are suitable for location elsewhere so as to be available for manufacturing industries and storage facilities that require a substantial threshold distance as the need for these arises.

18 Clause 33.02-1 provides several tables specifying the types of land use for which a permit is or is not required and the types of prohibited land use. By way of illustration, uses not requiring a permit include grazing, crop raising, animal production and service station. Prohibited uses include accommodation and hospital.

19 Clause 33.02-3 requires a permit for subdivision of land. Decision guidelines are provided for any application for subdivision of land within IN2Z as follows:

Decision guidelines

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

• The Municipal Planning Strategy and the Planning Policy Framework.
• Any natural or cultural values on or near the land.
• Streetscape character.
• Landscape treatment.
• Interface with non-industrial areas.
• The suitability of the proposed lots for the types of industries and warehouses shown in the table to Clause 53.10.

20 Clause 33.02-3 provides that an application for subdivision under the IN2Z is exempt from the notice and decision requirements and the review rights in s 82(1) of the Planning Act.

21 Clause 43 addresses Heritage and Built Form Overlays. Clause 43.02 is the head clause of the DDO and describes the purpose of the overlay as:

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To identify areas which are affected by specific requirements relating to the design and built form of new development.

22 Clause 43.02-3 requires a permit to subdivide land that is subject to the DDO, unless it is specifically excluded in a schedule to the overlay. Clause 43.02-6 sets out the decision guidelines relevant to applications for permits under cl 43 in the following terms:

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

• The Municipal Planning Strategy and the Planning Policy Framework.
• The design objectives of the relevant schedule to this overlay.
• The provisions of any relevant policies and urban design guidelines.
• Whether the bulk, location and appearance of any proposed buildings and works will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.
• Whether the design, form, layout, proportion and scale of any proposed buildings and works is compatible with the period, style, form, proportion, and scale of any identified heritage places surrounding the site.
• Whether any proposed landscaping or removal of vegetation will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.
• The layout and appearance of areas set aside for car parking, access and egress, loading and unloading and the location of any proposed off street car parking.
• Whether subdivision will result in development which is not in keeping with the character and appearance of adjacent buildings, the streetscape or the area.
• Any other matters specified in a schedule to this overlay.

23 Clause 43.02 contains several schedules each addressing a particular area with specific requirements within the planning scheme. Schedule 18 to cl 43.02 - DDO18 - deals with the precinct. The design objectives of DDO18 are:

To facilitate the development of the Geelong Ring Road Employment Precinct as a high amenity industrial area suited to the needs of advanced manufacturing and production support industries.

To provide a high level of amenity for workers on and visitors to the estate.

To ensure development provides an attractive frontage to the Geelong Ring Road.

To ensure development provides a high level of visual amenity when viewed from major transport routes and surrounding non-industrial land uses.

To promote best practice sustainable design including storm water quality and reuse measures.

24 Clause 6 of DDO18 provides decision guidelines in addition to those set out in cl 43.02-6. It provides:

The following decision guidelines apply to an application for a permit under Clause 43.02, in addition to those specified in Clause 43.02 and elsewhere in the scheme which must be considered, as appropriate, by the responsible authority:

• Whether the design and landscaping of the site contributes to the amenity of the Geelong Ring Road employment precinct.
• The appearance of the site when viewed from adjacent major transport routes and surrounding non-industrial land uses.
• The performance of the development against the Sign Guidelines (City of Greater Geelong, 1997) and the Geelong Ring Road Employment Precinct Urban Design Guidelines (July 2010).

25 Both clauses 33.02 and 43.02-6 refer to cl 65 of the planning scheme. This clause is headed Decision Guidelines. It provides:

Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.

26 Clause 65.01 addresses approvals of applications or plans. Clause 65.02 deals with approvals of applications to subdivide land. It provides:

Before deciding on an application to subdivide land, the responsible authority must also consider, as appropriate:

• The suitability of the land for subdivision.
• The existing use and possible future development of the land and nearby land.
• The availability of subdivided land in the locality, and the need for the creation of further lots.
• The effect of development on the use or development of other land which has a common means of drainage.
• The subdivision pattern having regard to the physical characteristics of the land including existing vegetation.
• The density of the proposed development.
• The area and dimensions of each lot in the subdivision.
• The layout of roads having regard to their function and relationship to existing roads.
• The movement of pedestrians and vehicles throughout the subdivision and the ease of access to all lots.
• The provision and location of reserves for public open space and other community facilities.
• The staging of the subdivision.
• The design and siting of buildings having regard to safety and the risk of spread of fire.
• The provision of off-street parking.
• The provision and location of common property.
• The functions of any body corporate.
• The availability and provision of utility services, including water, sewerage, drainage, electricity and gas.
• If the land is not sewered and no provision has been made for the land to be sewered, the capacity of the land to treat and retain all sewage and sullage within the boundaries of each lot.
• Whether, in relation to subdivision plans, native vegetation can be protected through subdivision and siting of open space areas.
• The impact the development will have on the current and future development and operation of the transport system.

27 Viva was provided with notice of the permit application under clauses 66.01 and 55 of the planning scheme. It was common ground that Viva was neither a Determining Authority nor a Referral Authority and so had no right of appeal under s 82AAA. Therefore it was treated as an objector under s 57 of the Planning Act which permits any person 'who may be affected by the grant of a permit' to make an objection.

28 The review rights of an objector are set out in s 82 of the Planning Act which provides:

(1) An objector may apply to the Tribunal for review of a decision of the responsible authority to grant a permit.

(2) A planning scheme may set out classes of applications for permits the decisions on which are exempted from subsection (1).

(3) If a planning scheme exempts a decision of an application for a permit from subsection (1), an application for review cannot be made under that subsection in respect of that decision.

29 The Tribunal posed the following question: how was it to proceed where a subdivision requires a permit under more than one provision of the planning scheme, but provision is made for third party notice and review rights in respect of some permissions but not others? As the Tribunal said:

However, where a section 82 application for review involves more than one permission, some of which are not amenable to third party review and some of which are, then a complication occurs: that being, the decision that has been made by the relevant responsible authority is only partly before the Tribunal for review. As such, the usual task of assessing all permissions individually and then together as a whole proposal, while integrating policy and balancing conflicting objectives, is not undertaken by the Tribunal as it was by the relevant responsible authority because not all of the permissions sought are before the Tribunal for review.[5]

30 The Council argued that, while Viva had standing to bring an application for review, the grounds of that review can only relate to the permission triggered by DDO18. The objection and grounds of Viva's review application address safety concerns that were matters properly within the approval contemplated by IN2Z, under which Viva had no right of review. Safety concerns were not matters that could be raised as relevant under DDO18 and therefore the application for review was misconceived.

31 Viva argued that its grounds of review did properly arise under the DDO18 permission trigger. Viva submitted that, on their proper construction, the combination of cl 43.02, the decision guidelines at cl 43.02-6, DDO18 and cl 65.02 enable it to raise the safety objections to the permit application within the DDO18 permission trigger and to maintain the review at VCAT to be determined on its merit.

32 The dispute was therefore one that both parties characterised as one as to the proper construction of the relevant sections of the planning scheme.

33 The Tribunal said that the starting point was to identify the relevant permit triggers. Two triggers were relevant: DDO18 and the IN2Z. As IN2Z provides an exemption from third party review, the Tribunal said it was obliged to take certain matters regarding the IN2Z permission as having been established.[6] The Tribunal reasoned that there might be considerations relevant to both permissions that would properly be before the Tribunal as relevant to the review of the DDO18 permission.

34 Next, the Tribunal identified the purpose or purposes for which the discretion under DDO18 has been conferred, recognising that a discretion cannot be exercised by a decision-maker for a purpose other than that for which it was conferred (the National Trust principle).[7] The Tribunal concluded that:

...the purpose of the DDO18 is to regulate the appearance of built form on the Land so as to ensure consistence with the design objectives contained in clause 1.0 of Schedule 18. In terms of subdivision, the discretion exists for the purpose of assessing whether the subdivision is acceptable in light of the Land's location in the Geelong Ring Road Employment Precinct.[8]

35 The Tribunal then turned to matters that must be considered in making a decision under DDO18. The Tribunal identified the stated purposes in the text of cl 43.02 then the decision guidelines contained in each of cl 43.02-6, cl 6 of DDO18 and cl 65.02. The Tribunal made three observations: first, cl 65 does not of itself create a separate permit trigger; second, its inclusion in cl 43 was intended to broaden the matters to be considered beyond those matters listed in cl 43.02 and DDO18; and third, the reference in cl 65 to consideration 'as appropriate' broadens matters in a way that can include matters even if they are not specifically listed in DDO18. Therefore the Tribunal concluded that cl 65.02 brings into cl 43.02 matters that might not otherwise be directly taken into account and those matters should not be unduly constrained by the language in specific permit triggers.

36 In applying these observations the Tribunal concluded that policy contained in clauses 13 and 19 was relevant to applications with proximity to the existing terminal and pipeline. The Tribunal accepted that Viva's objections were covered by cl 65.02 because at the very least, suitability for subdivision, and use and possible future development were considerations in cl 65.02 potentially broad enough to encompass those policy considerations and Viva's safety concerns.

37 The final step was whether the safety issues could then appropriately be considered under DDO18 approval, being the only decision before the Tribunal. That question was to be answered by application of the National Trust principle. Therefore the Tribunal asked itself:

'[W]ill the proposed subdivision enable the land to be developed in a manner consistent with the design objectives of DDO18?'[9]

38 The Tribunal concluded that the safety matters raised by Viva did not 'go to' that purpose and so were not relevant to the decision-maker's discretion under the DDO18 permit trigger. It said:

Rather, if a decision maker was to take those safety matters into account in exercising its discretion under the DDO18, I think that they would be exercising the discretion for a purpose other than that for which it was conferred. As such, this would lead the decision-maker into error.

That is not to say that these matters will not be taken into account in relation to the permission sought for subdivision; it is just that they will not be taken into account in relation to the permission sought for subdivision under the DDO18.[10]

39 The Tribunal reasoned that this conclusion did not foreclose overlap between considerations relevant under different discretions, where a matter was relevant to the purpose of each discretion. It said:

[161] The effect of the approach that I have adopted is that the matters that may be taken into account under clause 65.02 will vary depending upon the discretion being exercised. That is, the same decision guideline of clause 65.02 might be used in different ways, to bring in different policies or considerations, depending on the discretion being exercised. This approach is consistent with the reference to 'as appropriate' in the chapeau of clause 65.02.

40 Although it was not necessary to decide if Viva's grounds fell within the IN2Z permission, the Tribunal proceeded on the basis that they were taken into account in that permit application and/or in consideration of the 'acceptable outcomes' test. However, the Tribunal was not satisfied that safety concerns overlapped so they were also to be taken into account in relation to the DDO18 discretion.

41 The Tribunal accepted that proximity to the terminal and pipeline led to questions of future use and development that are relevant to whether the land is suitable for subdivision.[11] This was because subdivision is seen as the first step towards the future use and development of the land. Therefore the cl 65.02 decision guidelines did include a consideration of interface issues with the nearby terminal and pipeline even at the stage of subdivision alone. However, those interface issues of safety risk did not fall within the purpose of DDO18 because they did not address any question of whether the subdivision would (or would not) enable the land to be developed in a manner consistent with the design objectives of DDO18. In other words, while the concerns might be relevant to a decision under IN2Z and might be caught within one or more guidelines in cl 65.02, that does not of itself mean they are also relevant to the decision made under DDO18.

(a) Not changing the boundary fronting McManus Rd and not creating points of access along that boundary.

(b) Not changing the present use or the limited range of uses within IN2Z that might be conducted there without the need for a further permit.

(c) Not changing the requirement for a permit for building and other works, now and after subdivision.

It concluded that the purpose of cl 43.02 and DDO18 did not encompass the safety concerns raised by Viva's objection.

44 Ground 1 alleges legal error in holding that the purpose of DDO18 is limited to 'assessing whether a proposed subdivision is acceptable in light of the relevant land's location within the Precinct' because, in reaching that holding, the Tribunal failed to properly construe DDO18 and the purposes to which it is directed.[12]

45 Ground 2 alleges legal error in holding:[13]

(a) that only matters relevant to the purpose of DDO18 may be taken into account under cl 65.02 of the planning scheme;[14] and

(b) that safety matters could not be taken into account under cl 65.02 when assessing an application for a permit for subdivision under DDO18,

because in reaching these holdings the Tribunal failed to properly construe cl 65.02 and the planning scheme more generally.

46 Both grounds are concerned with error in the way the Tribunal went about its task of statutory interpretation.

47 Both parties relied on Boroondara City Council v 1045 Burke Road Pty Ltd[15] ('1045 Burke Rd') and the cases considered there as supporting their submissions on the preferred statutory construction. Before turning to their submissions I will set out a summary of those cases.

48 Sweetvale Pty Ltd v Victorian Civil & Administrative Tribunal & Ors[16] ('Sweetvale') was the case that formed the bedrock of the arguments in 1045 Burke Rd. At issue in Sweetvale was the breadth of VCAT's jurisdiction to review a decision to grant a planning permit. The Tribunal had held that an objector's right of review under s 82(1) of the Planning Act was limited by exemptions so that the objectors were limited in the matters that they could agitate. The objector to the grant of a permit for the proposed development applied for judicial review arguing the Tribunal had construed its jurisdiction too narrowly. Five permits in total were required for the proposed development: broadly, for demolition, for use in part as a car park, and the construction of the building or carrying out of works. Permits for construction or carrying out works required under the relevant zone and under the relevant design and development overlay were exempt from review. The objectors' grounds of review effectively opened up for debate all aspects of the development proposal. The centrepiece of the objectors' submissions was that although the proposal required a number of individual permissions, it was a single application. In the trial division, Ashley J rejected that proposition, saying that:

[A]lthough the decision to grant a permit was singular in form, it represented a discrete decision favourable to the applicant in respect of each of those building controls which required grant of a permit.[17]

It is desirable, or at least not wrong, for a single application to be made which requires a responsible authority to consider a number of planning controls. I accept the submission that an application in such form may better enable a responsible authority to consider the overall planning merits of the proposal. But I do not consider that it follows that the Act and Scheme should be read so that in some cases where an application single in form is made and granted exemptions from review will operate but in other cases the same exemptions will not operate.[18]

50 In the trial division, and on appeal, reliance was placed on the National Trust principle which requires the responsible authority to have regard to all relevant considerations relating to exempt and non-exempt components. The objector submitted that the scope of the relevant considerations for the Tribunal on review was defined by the purpose of the discretions and not the exemptions. The submission was rejected. Leave to appeal was refused, with Warren AJA concluding that as a matter of statutory construction, s 60(3) of the Planning Act provided that a responsible authority is not required to consider objections if notice is not required. It followed that any review by the Tribunal was limited to those parts of the application for the permit to which the appellants were able to object.[19]

51 1045 Burke Rd agitated a dispute between the responsible authority and the permit applicant. The proposal was for demolition of the existing building and construction of a new building. The overall proposal had four aspects requiring permits. Demolition required a permit only because of the Heritage Overlay and was subject of objections. Construction required three other permits. The responsible authority refused the permit on heritage grounds but on review the Tribunal set the decision aside and determined to grant the permit. As summarised by Emerton J at trial:[20]

The Tribunal held that, in deciding whether the proposed demolition of Arden was acceptable or justified, it was not limited to considering matters pertaining to heritage conservation policy. It held that the exercise of its discretion in relation to demolition required reference to be made to all relevant considerations, 'including planning policy for urban consolidation, housing diversity, sustainable development and urban design', which were relevant to assessing the replacement building.

52 The responsible authority submitted that where there are multiple triggers, consistent with Sweetvale, each control must be considered individually. As the only permit trigger for demolition was the Heritage Overlay, the proper construction of that control meant that the Tribunal would be confined to considering heritage related matters, whether or not other permits were required for other aspects of the proposal.

(a) First, is the discretion to allow or refuse demolition of heritage buildings to be exercised first and only by reference to considerations relating to heritage conservation policy?

(b) Second, where there are multiple triggers, may a permit be granted only if there is a favourable decision in respect of each permit trigger?

54 The Court answered no to the first question and yes to the second question.

55 As to the proper construction of the purpose of the Heritage Overlay, the Court recognised the National Trust principle and confirmed its continuing validity. The principle is that the exercise of a discretion to grant a permit_:_

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.[21]

56 Garde AJA said of the National Trust principle:

The National Trust case did not decide whether non heritage considerations could be taken into account in making decisions under heritage controls. It considered the reverse question namely whether heritage considerations could be taken into account in making decisions under non-heritage controls. ...However, identification of the purposes for which the discretion is granted is undertaken by reference to the Act and the Scheme and not by reference to preconception and speculation as to what those purposes must be.[22]

57 Importantly Garde AJA said that in one respect he disagreed with the reasons of the Tribunal. That point of disagreement was with this conclusion:

It is clear that when the Heritage Overlay is the only permit trigger, then the Tribunal's discretion is confined to heritage considerations.

58 This was because the Tribunal wrongly believed that it could only take account of a wider range of considerations when a proposal involved multiple permit applications.

59 His Honour observed the correct statement of the position is that:

...in deciding whether a permit should be issued under the Heritage Overlay control, the decision maker is required to take into account all of the considerations directed by the Act and the Scheme to be taken into account for an application under that control.[23]

60 He concluded that the considerations relevant to each planning control will vary but the considerations under the relevant control, there the Heritage Overlay, will remain the same whether considered as a single control or one of multiple controls.

61 Garde AJA accepted that the purposes of the Heritage Overlay are mainly heritage purposes but identified non-heritage purposes, including consideration of the proposed building or works. This was made clear by the Heritage Overlay control requiring any application for demolition be accompanied by a proposal for new building. He also concluded that the incorporation of cl 65 included (amongst others) orderly planning and the effect on amenity of the area as matters that the Tribunal also properly had regard to as within the discretion exercised under the Heritage Overlay control. He concluded that:

The objectives and provisions of the Act, and the purposes, objectives and decision guidelines applicable to the Heritage Overlay make it plain that considerations wider than strictly heritage considerations are to be taken into consideration by decision-makers.[24]

Therefore the Tribunal was entitled to have regard to wider considerations provided it did not stray beyond those authorised by the Act and the Scheme.

62 As to the approach of a responsible authority to a proposal involving multiple permit triggers, the Court of Appeal in 1045 Burke Rd again confirmed the approach of Ashley J in Sweetvale. Warren CJ addressed the question of how permit requirements are addressed in an integrated decision-making context. Her Honour said of the chapeau to cl 65:

It is important to recognise that the acceptable outcomes test is a final hurdle for the grant of a permit, not a substitute for satisfaction that a permit should be granted.[25]

63 Her Honour concluded that the responsible authority must be satisfied that each individual permit should be granted in the context of the overall proposal. Her Honour observed:

Put another way, the overall proposal is taken into account in the consideration of each permit requirement triggered by the proposal, and also as a final check before the project permit is granted. The individual permit requirements that are triggered are not to be considered in isolation or sequentially; instead each must be considered with regard for the other triggered permit requirements and the overall proposal.[26]

64 Garde AJA also concluded that the relevant authority must be satisfied as to each control that it is required to consider, and that the proposal would result in an acceptable outcome. Whilst logically demolition might be considered before construction, if each permit is considered separately and the ultimate decision 'rationalised or harmonised' then the sequence makes no difference to the ultimate result.[27]

65 Additionally, the Council relied in particular on Brunswick Investment Project Pty Ltd v Moreland City Council (Brunswick Investment'),[28] a decision of Quigley J sitting as President of the Tribunal. The factual issue in dispute there was that a planning permit was required for use and development of the land, and the proposal included a larger provision for parking than that prescribed by statute. The level of parking proposed did not require a permit. The legal issue for determination was formulated differently by the parties, but broadly they raised the question of what policy considerations are relevant to the Tribunal's discretion exercised for a permit for the proposed use and development. The two parts to the question before the Tribunal were: where the level of parking contemplated by the permit application exceeds the statutory rate, whether the Tribunal can refuse a permit or impose a condition requiring the reduction of parking on the basis that the higher provision for parking is inconsistent with sustainable transport policy in the planning scheme; and, whether in making a decision on the permit application the Tribunal can have regard to policy at state and local level, not limited to policy objectives for integrated transport and sustainability. The Tribunal answered no to both parts of the question. Her Honour concluded:

One must remain mindful that policy cannot operate as a control. The zones and overlays and particular provisions are the controls. They are the provisions which trigger a permit requirement, that is, they are the provisions which call up an exercise of discretion. Policies assist in the exercise of discretion when a decision is to be made, that is where a permit is required for a particular use or development.[29]

66 In essence the relevant clause dealing with car parking in the planning scheme was held to 'cover the field' with respect to car parking requiring a permit. The fact that no permit was required under that provision was not a relevant consideration in assessing the permit that was before the Tribunal under the zone.

67 First, as already mentioned, it was agreed between the parties that Viva had a right to object and seek review only in respect of DDO18, not IN2Z.

68 Second, the parties accepted that the National Trust principle applied to the Council's decision making. Each party submitted that its preferred statutory construction was consistent with that principle.

69 Third, it was not disputed that although cl 65 itself did not create a trigger for a permit, it nevertheless applied to all subdivisions requiring a permit.

70 Fourth, the parties agreed that cl 65.02 was properly part of the decision-maker's consideration and that it did broaden the relevant matters to be considered in an application for a permit to subdivide. The Tribunal also accepted this was correct at [120] of its reasons:

Secondly, the decision guidelines that follow [clause 65.02] must 'also' be considered, suggesting that it is the intention of this clause to broaden the matters that are taken into account in making a decision regarding a proposed subdivision, where the permit trigger is sourced elsewhere in the Scheme. To the extent that this contention is put by the Applicant - that clause 65 is intended to supplement the specific decision guidelines in other parts of the Scheme - I agree that the reference to clause 65 in this manner has the effect of broadening the matters to be considered beyond those in the decision guidelines of the head clause [43.02] and Schedule 18.

71 Fifth, it was agreed that Viva was not a referral authority and its review application was therefore that of an objector under s 82.

72 As to Ground 1, Viva submits that the Tribunal identified DDO18's purpose too narrowly. It accepted that the discretion conferred by DDO18 includes the purpose identified by the Tribunal, but argued that it is not confined only to that purpose.[3] DDO18 accommodates a wider range of purposes, in particular, the wider purposes include ensuring a high amenity industrial area and providing a high level of amenity for workers and visitors to subdivided sites.[30] Given this appeal is from a summary judgment, the question of whether the purpose, properly construed to include amenity, extends to the safety issues identified by Viva may be appropriately dealt with on remittal to VCAT.[31]

73 Viva's oral submissions developed the 'unjustifiably narrow' identification of purpose in two ways. First, the Tribunal identified the purpose of DDO18 generally as 'regulating the appearance of the built form on the land so as to ensure consistency with the design objectives contained in cl 1 of Schedule 18'. In essence, it argued that the Tribunal became 'overly distracted' by design when considering the purpose of DDO18 and did not give proper regard to the panoply of matters regulated by both the head clause (cl 43.02) and Schedule 18.

74 Second, in respect of subdivision specifically, the Tribunal's description of the purpose of DDO18 as whether subdivision is 'acceptable' in light of the land's location in the precinct covered by DDO18 was also a singular purpose.[32] Viva highlights that the word 'acceptable', used by the Tribunal in describing DDO18's purpose, is not drawn from the text and is itself a word of generality. The Tribunal is silent as to the factors relevant to whether a permit application is 'acceptable'. Although the planning scheme includes a test for 'acceptable outcomes', it was not submitted that the word was used by the Tribunal in that context.

75 Viva submits that four provisions in cl 65.02 encompass Viva's concerns under DDO18, as applicable to this and all permits for subdivision: the suitability of the land for subdivision, the existing use and possible future development of the land and nearby land, the design and siting of buildings having regard to safety and the risk of fire, and the impact on current and future development of the transport system.

76 Viva identifies this first ground as subsidiary to Ground 2.

77 Ground 2 concerns the Tribunal's reasoning and conclusion as to the interrelationship between DDO18 and cl 65.02. Viva submits that the Tribunal's analysis wrongly treats Schedule 18 and cl 43.02 as limiting or qualifying relevant matters from cl 65.02. Viva says that the Tribunal was wrong to treat Schedule 18 and cl 43.02-6 as limiting or qualifying the discretion conferred by cl 65 because this introduced qualifications into the planning scheme that have no textual or contextual support.

78 Viva submits that the reference to cl 65.02 in cl 43.02 presents two constructional choices, both of which are consistent with the National Trust principle:

(a) cl 65.02 stands alone so that the application of a matter within that clause necessarily involves the exercise of a discretion for a proper purpose; or

(b) cl 65.02 enlarges the scope of the discretion conferred by DDO18, consistent with the text of both clauses 65.02 and 43.02.

79 Viva submits that cl 65.02 is applied separately and independently to (or expands) the decision under DDO18. It does not submit that the purpose of DDO18 is informed or expanded by cl 65.02,[33] but that matters in cl 65.02 'appropriate' to that purpose are to be considered. Matters that may be appropriate are informed by the material before the responsible authority, both material in support and objections. Therefore because Viva raised objections as to safety risks, and safety risks were considerations within cl 65.02, they were matters that were relevant even if not identified elsewhere in clause 43.02 or Schedule 18.

80 Viva identified four reasons why the Tribunal's conclusion - that although the objections raised matters within cl 65.02 those matters were not relevant to the purpose of the DDO18 discretion - is erroneous.

81 First, the limitation is not found in the text of cl 65.02 and finds no support in its context or purpose. The phrase 'as appropriate' requires a responsible authority to consider relevant matters[34] and is intended to enlarge the ambit of the discretion.

82 Second, the Tribunal considered the relationship between clauses 43.02 and 65.02 to be one where cl 43.02 confines cl 65.02. This was contrary to the specific text of cl 43.02 which provides guidelines 'in addition to the decision guidelines in clause 65'. The text denotes a separation but not subordination. The Tribunal's construction maintains an unwarranted distinction between the two clauses denuding cl 65.02 of any practical operation.[35]

83 Third, the interpretation of the relationship and effect of the two clauses is inconsistent with the principle of integrated decision making. It treats relevant considerations under cl 43.02 as limiting the scope of discretion under cl 65.02 in a manner inconsistent with the approach set out in 1045 Burke Rd which requires the triggered permit requirements to be met in respect of each permit, and not to be considered in isolation or sequentially.[36]

84 Fourth, the Tribunal misapplied the National Trust principle. An effect of adopting the narrow approach to purpose was that the Tribunal failed to construe cl 65.02 as conferring a supplementary, if not a separate (and standalone) source of discretion.

85 So, in Viva's submission and contrary to the Tribunal's reasoning, the wording of cl 43.02-6 makes clear that cl 65.02 is an additional consideration for the decision-maker.

86 The Council summarises Viva's two grounds as raising one issue - whether the Tribunal erred by determining that Viva was not entitled to raise safety issues under DDO18.

87 As to Ground 1, the Council submits that the Tribunal did apply proper principles of statutory interpretation in ascertaining the purpose of the discretion in DDO18 as can be demonstrated from the content of the Tribunal's reasons. The Tribunal stated that the purpose would be 'identified from the words of the control itself, including the decision guidelines and from its context',[37] an approach that the Council submits was correct in principle and consistent with what the Tribunal in fact did. The reasons demonstrate that the Tribunal reviewed all relevant provisions, before concluding that there was no direct reference to safety or safety risks in the DDO18 or cl 43.02.

88 The implementation of planning strategy and policy framework as a purpose of the DDO did not, of itself, make any particular policy relevant to a decision. The Tribunal concluded the safety issues were irrelevant to any of the decision guidelines of cl 43.02 or Schedule 18 or the purpose, properly identified, of DDO18. The Council submits this was the correct approach.

89 The Council further submits that the determination that safety issues did not go to the purpose of DDO18 was a finding of fact, which does not give rise to a question of law.[38]

90 As to Ground 2, the Council submits that the fact that the words 'as appropriate' appear three times (in the decision guidelines at cl 43.02-6, the decision guidelines in Schedule 18, and in cl 65.02) is key. On occasion the decision guidelines specifically refer to a matter, and on other occasions they are expressed in broad terms. Therefore, in the Council's submission, a matter may come within the scope of the decision guidelines even if it is not specifically referred to. In both circumstances, the words 'as appropriate' have work to do - that work being whether some factual matter is within scope of a decision guideline narrowly or broadly expressed, as well as also whether a particular decision guideline is within or outside the purpose of the relevant discretion. The Council submits that the words confirm the validity of the National Trust principle.

91 Therefore, the Tribunal's finding that the cl 65.02 decision guidelines were sufficiently broad to cover the safety issues was not the end of the matter. The Tribunal also had to determine - and did determine - whether those matters also fell within the purpose of the DDO18 discretion. This approach may expand the range of relevant considerations beyond those in a specific zone or overlay control, but that expansion does not include matters outside the purpose of the specific control that has triggered the need for the permit.

92 The Council also supports its argument by reference to authorities,[39] including 1045 Burke Rd. It submits that relevant considerations are those that go to the purpose of the relevant control. The Council submits that a zone control like IN2Z is directed at controlling the use and development of land. By contrast, an overlay control like DDO18 does not seek to control the use of land, but rather only the manner of development. The Council submits that this distinction is significant and supports its argument that the relevant considerations under DDO18 were confined to those within the purpose of this more limited control.

93 The Council submits that safety was not a relevant consideration under a built form control and argues that the submission that amenity in the context of DDO18 includes safety is 'a long bow to draw'.[40]

94 The Council submits that a matter does not become relevant simply because it formed the basis of an objection. While the Council did not contest the applicant's right to object, it says that the mere fact that the applicant's objection raised safety issues did not permit the Tribunal to consider them unless it was satisfied that those issues were within the purpose of the permit trigger that permitted Viva's objection and review rights.

95 Further, the Council argues that cl 65.02 applies to numerous zones (including industrial zones, residential zones and farming zones) and numerous overlay controls (including design and development overlay, heritage overlay, land subject to inundation overlay). Therefore it should not be read in such a way that makes all the matters listed in the clause relevant irrespective of the purpose of the zone control and irrespective of the purpose of the overlay control.

96 The Council argues that the purpose of a particular discretion, once properly identified, remains limited in scope. It is not expanded by the full breadth of cl 65. The key is the phrase 'as appropriate', which identifies the matters that are specifically and indirectly within decision guidelines so as to be relevant. Other matters might be within scope of a particular decision guideline but nevertheless outside the purpose of the relevant discretion. Following the Council's argument, matters within the scope of the cl 65.02 decision guidelines (such as safety) that are outside the purpose of the DDO18 discretion are therefore not appropriate to be considered as part of DDO18 permission. The Council says this interpretation correctly applies the National Trust principle. The Council submits that neither cl 43.02 nor cl 65.02 directly raises the safety issues identified by Viva, thus making a link between those issues and the purpose of the DDO18 control more tenuous.

97 Both parties characterise the appeal as raising an issue of statutory interpretation and agree on the principles to be applied. In summary the relevant principles are:

(a) The planning scheme is delegated legislation and should be interpreted according to general principles of statutory interpretation.[41]

(b) The starting point is consideration of the ordinary and grammatical sense of the statutory words, interpreted having regard to the context and legislative purpose of the planning scheme and its relevant provisions.[42]

(c) Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. However, the focus always remains on the words of the statute. Statements of legislative intention 'cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.'[43]

(d) The interpretation that would best achieve the purpose or object of the planning scheme is to be preferred. However, 'if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust.'[44]

(e) The Tribunal must strive to give meaning to every word of a statutory provision, and to the provision as a whole.[45]

(f) Delegated legislation is addressed to people skilled in a particular trade or industry. Accordingly, it should be construed with reference to practical considerations adopting 'that interpretation which leads to a reasonably practicable result'.[46]

98 The Tribunal summarily dismissed Viva's application for review as misconceived under s 75 of the VCAT Act, which states:

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) is otherwise an abuse of process.

99 It did so on the basis that it lacked jurisdiction to hear the objector's review.

100 Under s 148(2A) of the VCAT Act, the Trial Division of this Court may grant an application for leave to appeal a VCAT decision if it is satisfied that the appeal has real prospects of success. The Court is to have regard to the role entrusted to the specialist Tribunal and exercise restraint in identifying error.[47]

101 The Council neither consented to nor opposed the grant of leave.

102 I am satisfied that it is appropriate to grant leave to appeal. An error in determining the matter to be beyond jurisdiction is clearly a legal question. There are two aspects to the error in the constructional task that are raised. The first is the nature of the objection and the purpose of the discretion conferred by DDO18 of the planning scheme. The Council argues that the determination that the safety matters raised by Viva did not go to the purpose of DDO18 was one of fact against which there is no right of appeal. I disagree because the argument addresses an anterior question which is one of law: identification of the purpose, a necessary step before the question of whether a particular objection goes to that purpose or not. The second aspect is a broader question about the correct approach to the Tribunal's jurisdiction when a responsible authority has exercised a number of discretions in arriving at its decision and an objector, with a right of review in respect of one but not another permit trigger, exercises that right of review.

103 The second issue has broad practical significance. The Tribunal recognised this in designating it a 'red dot' decision.

Did the Tribunal err when it identified the purpose of DDO18?

104 The first ground raises the same issue as raised by the first key question in 1045 Burke Rd. There the Council argued that by going beyond heritage matters in considering the permission to demolish, the Tribunal strayed beyond the purpose of the relevant control. Here Viva contends the converse: that the purpose of the relevant overlay control, DDO18, was construed too narrowly and as a consequence the grant of permit was inconsistent with the planning scheme.

105 Viva contends that while one purpose of DDO18 may be to consider the appearance of built form on the land, this was not the only purpose. In describing the purpose as 'whether the application for subdivision is acceptable in light of the land's location in the precinct', the term 'acceptable' is a concept broader than design and built form and, as a descriptor of purpose, is language that finds no support in the Planning Act or planning scheme. Viva said that the Tribunal in practical terms limited its consideration only to design issues.

106 The submission overstates the Tribunal's conclusion. The Tribunal did not determine that the sole or only purpose of DDO18 was limited to design issues. The paragraphs preceding paragraph [111] of the Tribunal's reasons make this clear. The Tribunal began with the decision that the Council ultimately made, correctly identifying that the application for subdivision was an acceptable planning outcome. That is, not only did the application for subdivision meet the requirements of each of the permit triggers (being DDO18 and IN2Z), but that it was also appropriate to grant the application because it met the 'acceptable outcomes' test in cl 65.02.

107 The parties took no issue with the Tribunal's approach that it was obliged to act on the basis that the responsible authority was satisfied that the permit trigger for IN2Z was satisfied and that the 'acceptable outcomes' test was satisfied.[48] Therefore as objector, the first ground required Viva to demonstrate that its grounds of objection were factors that the decision-maker was bound to have regard to under DDO18.

108 Viva had submitted to the Tribunal that its approach to identifying the purpose of DDO18 from the text, context and purpose of the planning scheme was not contrary to the decision in Sweetvale. This was because matters in cl 65 were expressly required to be considered in the permission under DDO18. It is true that Sweetvale was not concerned with the purpose of a particular planning control and how it was to be construed, but with whether a single permit application concerning decisions under a number of planning controls opened up for an objector debate on all aspects of the application even those subject to an exemption. In Sweetvale, Ashley J referred to the place of 'decision guidelines' in the relevant planning scheme - there the Melbourne Planning Scheme - noting:

When any application falls for decision, consideration must be given to such guidelines. They vary from one case to another. Commonly, if not always, they include criteria set out in cl 65 of the Scheme.[49]

109 There is nothing in Sweetvale that would suggest that the principles set out there are not applicable to the rights and limitations of an objector under the present scheme. Cl 65.02 lists considerations which, if falling within the purpose of the particular discretion to which the objection responds, must be considered. But the inclusion of cl 65 does not, as Viva conceded, expand the purpose of a particular planning control. An objector is not prevented from including objections beyond a particular control, but as Warren CJ said in Sweetvale on appeal, by operation of s 60(3) of the Planning Act, a responsible authority is not required to consider objection where notice is not required and so it follows that no right of review to the Tribunal lies where an exemption is imposed:

Any review is limited to those parts of the application for the permit to which the appellants were able to object in accordance with the Act and the Scheme.[50]

110 Viva has attempted to bring its safety concerns within the purpose of DDO18. The fact that the objection is before the responsible authority does not make it relevant to the purpose of the particular discretion. Nor does the fact that it may also fall with cl 65.02 of itself bring it within the relevant purpose.

111 The Tribunal observed that each of the overlays in cl 43 deal with various issues including heritage, flooding, environmental concerns, and design and built form, and all have individual decision guidelines in addition to the decision guidelines in cl 43.02 or elsewhere. But for each overlay, the Tribunal noted that the matters that would be appropriate to take into account would be different, concluding the purpose of each overlay - and the discretion under that overlay - is different. In this it expressed an orthodox statement of the National Trust principle. By reference to 1045 Burke Rd and Quigley J's decision in Brunswick Investment, the Tribunal indicated it understood the continued importance of that principle.

112 In addition to the matters arising under IN2Z, the precinct is an area affected by specific requirements relating to design and built form. The Tribunal set out the two stated purposes of the DDO from the text of cl 43.02. First was a general purpose, mindful that it would be overly simplistic to accept all existing policies to be within the purpose of the control, relying on the observations of Quigley J in Brunswick Investment. The second stated purpose was more specific - requirements relating to design and built form of new development.

113 The Tribunal then identified the design objectives of Schedule 18. The design objectives are described as:

[They] focus on providing a high level of amenity within the precinct and when viewed from major transport routes and surrounding non industrial land uses, providing an attractive frontage to the Geelong Ring Rd, and facilitating the development of the Geelong Ring Road Employment Precinct as a high amenity industrial area suited to the needs of advanced manufacturing and production support industries.[51]

114 The Tribunal noted the specific requirements applying to subdivisions in cl 3.0 of Schedule 18, which include lot size and orientation along with aspects of street design.

115 The Tribunal canvassed all of these matters as relevant to the purpose of DDO18 before it considered the specific requirements relating to design and built form of new development arising under cl 43.02.

116 The Tribunal's reasons recognised that design and built form was not in issue in the permit application under consideration. Rather than be distracted by these matters, the Tribunal clearly put them to one side, necessarily looking more broadly at the purpose of DDO18 in the context of an application for subdivision alone. It said:

Given there is no use or development proposed, and the land is vacant, it is not a situation where the design and built form of new development is in issue. Irrespective, permission is still required under DDO18 for subdivision; subdivision is specifically called up in clause 3.0 of Schedule 18, logically because the size of the lots and their configuration, layout and aspect will have an impact upon their possible future use and development. In this respect, one might consider whether the proposed subdivisional lots will result in development which is not in keeping with the character and appearance of adjacent buildings, the streetscape or the area, having regard to one of the decision guidelines contained in clause 43.02-6.[52]

117 The statement of purpose by the Tribunal at [111] of its reasons then follows. As can be seen the Tribunal identified two aspects to the purpose, or perhaps two purposes, for which the DDO18 discretion is to be exercised. One is where applications include matters of new development, including proposed buildings and works, proposed vegetation removal and landscaping. The other is where subdivision is the only matter before the decision-maker. The Tribunal identified amenity, configuration, layout, aspect and streetscape as all relevant to matters requiring DDO18 permission whether or not new development was proposed. Nothing in the articulation of purpose by the Tribunal in paragraph [111] excludes those matters from consideration for the purpose of DDO18.

118 The Tribunal later explained the use of the word 'acceptable' as a descriptor of purpose when it said of the purpose of the discretion conferred by DDO18:

That is, will the proposed subdivision enable the land to be developed in a manner consistent with the design objectives of DDO18?[53]

119 In my view, this is a reference back to the design objectives in both cl 43.02 and Schedule 18, which make clear that in addition to matters of built form and new development, other matters required consideration. Read in the context of the reasons generally, 'acceptable' is used in its ordinary meaning of 'compliant with' or 'satisfying' the relevant design objectives. It is not used, nor did the parties suggest it was used, as it is understood in the acceptable outcomes test.

120 The Tribunal also considered whether the broad purpose of implementation of the planning strategy and policy framework incorporated aspects of cl 13 or cl 19 into decisions under DDO18. It observed that the decision guidelines in cl 43.02 and in cl 3 of Schedule 18 make no specific reference to matters of safety. Within cl 65.02 Viva relied on four particular guidelines that were sufficiently broad to cover safety issues as set out above. The Tribunal accepted that, as the terminal and pipeline were existing facilities, some of the strategies in the policy framework were of potential application within cl 65.02, specifically the protection from further encroachment from 'sensitive land uses', and the risk associated with increasing the intensity of use and development.

121 Consistent with what was said in Sweetvale and in 1045 Burke Rd, the issue for determination was not whether a responsible authority had to exercise a discretion in relation to all appropriate matters identified within cl 65.02 going to safety risks arising from proximity to the terminal and pipeline, but whether those matters were relevant to the particular discretion exercised under DDO18. To the extent that safety issues were encompassed by the considerations in cl 65.02, it is clear that those considerations arise in the context of land use. The permission required under DDO18 did not touch on land use directly.

122 There is a distinction in the text between cl 43.02 and cl 33.02 of the planning scheme. As can be seen from the extracts above, cl 33.02 expressly provides that a purpose of the control is that activity be conducted in a manner that does not affect 'safety and amenity'. By contrast cl 43.02-6 does not mention safety. It provides a number of specific considerations broadly addressing particular aspects of visual amenity going to built form: heritage, character and appearance of buildings and streetscape. Amenity as a wider consideration is found in DDO18, encompassing other considerations of visual amenity as well as introducing the concept of a 'high amenity industrial area'.

123 In my view there is nothing in the text or context of DDO18 and the head clause of cl 43 that identify safety issues arising from surrounding land use as relevant to a discretion to permit a subdivision under that particular Design and Development Overlay.

124 In circumstances where IN2Z, being exempt from review, was not before the Tribunal, to the extent that safety considerations were within the purpose of cl 33.02 the Tribunal was obliged to take those considerations as being satisfied. Viva as objector must show that, in addition to being relevant to other permit triggers, its safety concerns were also relevant to DDO18. The Tribunal was not satisfied that there was an overlap. As the Tribunal observed:

I do agree with [the Council] that [Viva's] concerns potentially address consequences of a future use or development and it may well be that these policy and safety considerations arise at the time a planning permit is sought for use and development.[54]

125 There was no error in the Tribunal's conclusion that safety issues did not overlap with the purpose of DDO18 in regulating subdivision of land.

Did cl 65.02 permit Viva to raise an objection on safety grounds?

126 The broader question raised by Ground 2 can be approached on the basis that the Tribunal has correctly identified the purpose of DDO18. Both parties accept that the purpose of that discretion itself is not changed by the existence of, or incorporation of, considerations raised by another discretion, cl 65.02.[55]

127 For the reasons that follow, the Tribunal did not err in its construction of the way in which cl 65.02 is relevant to the rights of an objector under the specific permit trigger of DDO18.

128 The words of the text are clear and unambiguous: cl 65 is expressly incorporated into cl 43.02, being the DDO head clause, so that considerations 'in addition' to those listed in that clause are incorporated. In context, cl 65 generally, and cl 65.02 specifically for applications for subdivision, applies to a decision-maker who is required to exercise other discretions deciding permit applications. It is a clause concerned with the 'final hurdle' as described by Warren CJ in 1045 Burke Rd.[56] Consistent with this the Tribunal correctly observed that cl 65 itself provides no permit trigger. It has a particular and distinct purpose in the statutory scheme and the requirement for integrated decision making. It places upon the responsible authority an additional discretion to be exercised by applying the acceptable outcome test when it is satisfied of the requirements of each relevant permit trigger.

129 The text of each of Schedule 18, cl 43.02 and cl 65.02 identify matters that the decision-maker must consider, '[b]efore deciding an application'. At the most specific, Schedule 18 applies to land in the precinct and provides decision guidelines in addition to those in cl 43.02 (and elsewhere in the planning scheme). At the next level of generality, cl 43.02 is the head clause and is relevant to all land that is subject to a DDO. It provides a list of decision guidelines to be considered in addition to those in cl 65.02.

130 Similarly cl 33.02 provides decision guidelines for applications for land use and permits for subdivision and for building and works in IN2Z.[57] Those decision guidelines also commence with the statement:

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

131 At the final level of generality, for all applications to subdivide land, the decision-maker is to consider the matters listed in cl 65.02. Subject to the qualification 'as appropriate' at every step, the text makes clear that the considerations are cumulative, or to put it another way, each set of design guidelines potentially expands the matters that must be considered.

132 It is correct to say that cl 65.02 applies to all applications to subdivide land whether the permit trigger is in a zone or in an overlay, or as here, in both. I accept, as both parties submitted, that by including consideration of matters in cl 65.02 as part of the process of deciding whether the permit trigger of DDO18 is satisfied, it is intended to broaden matters to be considered at that step in the planning process. This is so whether or not those matters are also to be considered at other steps in the planning process.

133 However, Viva's argument is premised upon an analysis that the Tribunal's construction has the consequence that safety issues cannot be taken into account by a responsible authority under cl 65.02 when assessing an application for subdivision under DDO18.[58] The premise is wrong. Assume for a moment that DDO18 is the only permit trigger. The consequence of the Tribunal's analysis is that cl 65.02 has limited relevance to an objector's rights under the planning scheme. The rights of an objector arise only to the extent that the clause provides additional matters that must also be considered within the discretion of cl 43.02. It does not constrain a responsible authority who must be satisfied independently of both cl 43.02 and cl 65.02 in order to grant a permit.

134 The conclusion reached by the Tribunal at [161] as set out above is consistent with this analysis. It does not confine an objector to matters specifically listed in Schedule 18 or cl 43.02-6 as Viva contends. It is an approach that accepts wider matters fall for consideration in exercising the discretion for which the right to object exists. The Tribunal explained its conclusion in this way:

Contrary to the submissions by [Viva], this approach does not confine the applicability of the decision guidelines in clause 65.02 to those matters specifically listed in the DDO18. Rather clause 65.02 still serves a purpose - it still conceivably broadens the scope of considerations beyond those specifically listed in the DDO18, just not to the extent of taking into account matters that are outside of the purpose for which the discretion was conferred.

This approach does not interpret the DDO18, clause 43.02 and clause 65.02 as if they are hermetically sealed from each other. Rather this approach recognises that these provisions, combined, form the decision guidelines to be taken into account in exercising a discretion under the DDO18. As such this approach is consistent with the integrated and interrelated nature of these provisions, as discussed above, but where the appropriateness of the broad decision guidelines in clause 65.02 is viewed through the lens of the purpose of the DDO18.[59]

135 If DDO18 is not the only permit trigger, it is irrelevant that matters must be considered by a responsible authority under another permit trigger, in this case IN2Z, unless there is overlap so a particular objection is relevant under both triggers. In my view the Tribunal was correct to conclude at [164]:

As a separate matter, I acknowledge that just because a matter is properly considered under one discretion that is not a reason why the same matter could not arise under another discretion; I accept that there might be an overlap between matters relevant to each decision. However, this would be contingent upon such matter being relevant to the purpose of each discretion.

136 This approach is consistent with the observations of the then President of VCAT in Victorian Parks Association Inc and Mineral Policy Institute v Southern Grampians Shire Council and Horsham Rural City Council,[60] where His Honour said:

But the scope of relevant considerations in the exercise of a discretion under a planning scheme provision is to be ascertained by reference to the purpose for which the discretion has been conferred, not be reference to the broad works of clause 65 or sections 60 and 84.

137 Although also review brought by objectors, the case can be distinguished from the present because the relevant planning permits were those with the right to object so in a practical sense the whole of the decision was before the Tribunal. The observation nevertheless is apposite to the interaction between the specific control or controls and the broader considerations of cl 65.

138 Therefore, contrary to Viva's submission, the chapeau to cl 43.02 properly construed requires a responsible authority, when considering this particular permit trigger, to consider the decision guidelines contained in cl 43.02-6 as appropriate, in addition to those considerations in cl 65. The considerations under cl 65 that are relevant insofar as the DDO18 trigger is concerned are those relevant to the purpose for which the discretion under that particular trigger is to be exercised. The relevant matters for cl 43.02 may well be different to those relevant to cl 33.02. Clause 65 is also relevant to a responsible authority again at the final hurdle before a permit is granted or refused, as a means of balancing different and sometimes conflicting aspects of the overall planning scheme to ensure that the outcome permitted overall results in an acceptable outcome.

139 As to the four reasons identified by Viva why the Tribunal's construction was in error, plainly the Tribunal's construction leaves work for cl 65.02 as described above. First it potentially broadens matters for consideration through the 'lens' of the purpose of one or more individual permit triggers. Whether or not the 'lens' of cl 33.02's purpose also provides for safety issues is not to the point. Viva was confined to those matters in cl 65.02 that are relevant to the permit trigger that gave it the right to object. Secondly, cl 65.02 has a separate role in the process of integrated decision making in circumstances where the individual discretions associated with each permit trigger are met. In those cases cl 65.02 matters again require consideration broadly to the final discretion to be exercised by the responsible authority before a permit is granted.

140 The Tribunal's reasons make clear it did not construe cl 65.02 as confining matters to those listed in cl 43.02. In part the submissions fail to distinguish the effect of the two clauses on a decision-maker obliged to deal with multiple permit triggers from their operation on the position of an objector with rights under only one of those triggers.

141 Sweetvale makes clear that where exemptions apply to some but not all permit triggers, the permissible enquiry on review sought by an objector will be confined. The Tribunal's jurisdiction when not all permit triggers are before it on review by an objector is necessarily also more confined than when the entirety of the decision is before it. Ashley J accepted that this might result in decisions that do not represent all relevant planning considerations but that this is what is plainly dictated by the legislation.[61]

142 The Tribunal considered Sweetvale and concluded, consistent with that authority, that where a permission is not before the Tribunal on review, certain matters are taken to be established. It said:

...there might be some matters that are relevant to more than one permission and in that instance, the Tribunal can consider those matters in the context of the decision before it, notwithstanding that those matters might have been used in relation to the permission not before the Tribunal. Equally there might be some issues that are properly taken into account in assessing one permission but not in assessing another, and where the permission is not before the Tribunal that issue will not be open to the Tribunal to take into account. Whether these situations arise in any given section 82 application depends on the permissions sought, the exemptions in play and the issues being agitated.[62]

143 The Tribunal observed that safety issues might fall within the discretion to be exercised under cl 33.02 as well as within cl 65.02. As permit applicant and decision-maker respectively, Heales Ventures and the Council would have rights of review of a decision to grant or refuse a permit in which the Tribunal would have before it all aspects of the decision, and all of the relevant discretions that had been exercised. This was the position of the Tribunal in 1045 Burke Rd.

144 Viva's position as objector is distinguishable. It is a third party whose rights are limited by exemptions contained within the scheme. In the trial division decision Boroondara City Council v 1045 Burke Road Pty Ltd,[63] Emerton J said:

The decision of the Court in Sweetvale was, in substance, that third parties were not entitled to be heard on matters relevant to a permit sought under a control where the control itself contained an exemption from third party review. The fact that objectors had rights in relation to one control did not open up rights in respect of controls that expressly excluded third party review. To allow a party to contest decisions made under planning controls that were subject to exemption would negate the exemption provisions and be contrary to both the plain meaning and intent of the relevant provisions in the planning scheme.

Here, the Court is not concerned with rights to participate in the review proceeding, but with the decision to grant or not to grant a permit for the development 'overall' and with the decision-making process that leads to that outcome.[64]

145 Viva's first constructional argument is that cl 65 stands alone in its own right within cl 43.02, so that a matter within cl 65 is necessarily one within the purpose of the discretion under the relevant DDO. This argument would have the effect of opening up to an objector any matters relevant to the subdivision that the responsible authority must consider in the broadest sense. Such an interpretation is not consistent with exemptions from review of some permissions and is not a construction that would lead to a 'reasonably practicable result'.[65] The alternative construction that it enlarges matters to be considered within the discretion can be accepted. In effect the Tribunal decided as much.

146 The Tribunal's construction is consistent with the statement of Garde AJA in 1045 Burke Rd as set out above at [57]-[59]. In my view the Tribunal did not err in its construction of relationship between cl 43 and cl 65.02.

147 I will grant the applicant leave to appeal but dismiss the appeal.

[1] Applicant, 'Affidavit of Stephen Davis' sworn on 18 May 2022 in Viva Energy v City of Greater Council & Anor S ECI 2022 01712, exhibit SCD-1, 12-17.

[4] Second Defendant, 'Statement of Grounds on Behalf of the Respondent' filed on 26 November 2021 in VCAT Proceeding (Reference No. P11488/2021) [6].

[5] Viva Energy Australia v Greater Geelong CC (Red Dot) [2022] VCAT 326, [65] ('Tribunal's Reasons').

[6] Ibid [66], citing Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal [2001] VSC 426 [71] ('Sweetvale').

[7] National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VicRp 60; [1976] VR 592.

[10] Ibid [150], [151]; emphasis in original.

[15] Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27; (2015) 49 VR 535 [121] ('1045 Burke Road').

[19] Sweetvale & Anor v VCAT & Ors [2003] VSCA 83 [17] ('Sweetvale appeal').

[20] Boroondara City Council v 1045 Burke Road Pty Ltd [2014] VSC 127 [4].

[21] National Trust (n 7), quoting Shrimpton v The Commonwealth [1945] HCA 4; (1945) 69 CLR 613, 620, 627, 631, 632.

[22] 1045 Burke Rd (n 15) [120]-[121].

[28] [2021] VCAT 1191 ('Brunswick Investment').

[30] Applicant, 'Submissions on Behalf of Viva Energy Australia Pty Ltd in Support of Appeal' filed on 14 September 2023 in Viva Energy Australia Pty Ltd v City of Greater Geelong Council & Anor S ECI 2022 01712, [43].

[34] Shalit and Faine v Jackson Clement Burrows [2002] VSC 528, cited in Jefferson v Mornington Peninsula SC [2003] VCAT 806, [41].

[36] 1045 Burke Rd (n 15) [36]-[37].

[38] Citing Chopra v Department of Education and Training (2020) 60 VR 505 [88].

[39] See White Ash & GL Properties Pty Ltd v Frankston (2004) 18 VPR 188_; Victorian National Parks Association Inc v Iluka Resources Pty Ltd_ [2004] VCAT 20.

[41] Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 398; Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379, 388 [36].

[42] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, [39];

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 31[4].

[43] Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 25, [31].

[44] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 305.

[45] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, [71], quoting Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405, 414.

[46] Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 923 ('Gill'); Sevdalis v Director of Professional Services Review [2017] FCAFC 9, [26]; Secretary, Department of Health (as successor to the Secretary, Department of Social Services) v DLW Health Services Pty Ltd [2016] FCAFC 108, [93].

[47] Red Pepper Property Group Pty Ltd v S 3 Sth Melb Pty Ltd [2019] VSC 41, [11].

[48] As set out above at [40]; Tribunal's Reasons (n 5) [65].

[57] Clauses 33.02-2, 33.02-3 and 33.02-4 respectively.

[58] Submissions on Behalf of Viva Energy Australia Pty Ltd in Support of Appeal, filed on 14 September 2023, [44].

[59] Tribunal's Reasons (n 5) [162]-[163].

[60] [2004] VCAT 20, [42].

[63] [2014] VSC 127.