Victorian Civil and Administrative Tribunal|2000-12-28|Before: Mr P

Block & Ors v Indigo Shire & Ors [2002] VCAT 199 (28 December 2000)

1. The Indigo Shire Council, as responsible authority under the Indigo Planning Scheme, must cancel Permit no.PP99/147 issued by it on 28 September 1999.

4. The Council may file with the Tribunal and serve on the Applicant its written reply to the Applicant's costs application within 14 days after receipt of the Applicant's submissions.

5. The parties have liberty to apply with respect to the costs application.

Mr M Bartley of Phillips Fox, Lawyers, appeared on behalf of the Applicant, and also Mr and Mrs Mott and Mr Hall.

Mr Carson appeared on behalf of himself and Mrs Carson.

Mr P O'Dwyer, Shire Planner, appeared on behalf of the responsible authority (Council).

There was no appearance for the owners of the subject land.

1. This is an Application brought under Section 87 of the Planning and Environment Act 1987 ("the Act") by Ms Block, seeking cancellation of Permit no.PP99/147 issued by the Indigo Shire Council as responsible authority under the Indigo Planning Scheme on 28 September 1999.

2. The Permit was issued with respect to land described as "Crown Allotments 8 and Part 4 Section D Parish of Wooragee, Factory Lane, Wooragee". It is the land described in Certificate of Title volume 9975 folio 739, a copy of which was filed by the Applicant. The permit allows land to be subdivided in accordance with an endorsed plan, and use and development of the new Lots 1 and 2 for a dwelling house.

3. Two plans were endorsed with the permit. The first shows the four lots as described below, and was endorsed on the day the permit was issued. The second shows a further proposal for the ultimate subdivision of the subject land into 10 lots, with existing vegetation, building envelopes and shared access points marked. Notes on the plan indicate the setbacks and effluent disposal envelopes. This plan was endorsed on 5 October 1999.

4. The application for the permit was made by "Civentech (David Larkin)" on behalf of D Palmer and E Hall. It was accompanied by a "development report" by Civentech Pty Ltd.

5. Factory Lane is an unsealed road leading south off Wodonga-Beechworth Road. It meets Fanning Lane, which runs east-west. Lots 1 and 2 on the permitted subdivision front to Fanning Lane. Further to the east, Fanning Lane intersects with Star Lane, which runs north back to Wodonga-Beechworth Road. The three lanes form three sides of a rectangle, and are the boundaries to the greater part of the southern portion of the Wooragee Development Plan Overlay area.

6. The subject land has frontages to Wodonga-Beechworth Road and both Factory and Fanning Lanes. It has an area of 42.46 hectares. The southern part has a branched easement for electricity supply purposes running through it. The permit created four lots. As numbered on the endorsed plan, they are Lot 1 (2.65 ha), Lot 2 (2.58 ha), Lot 3 (7.21 ha) and Lot 4 (29.8 ha). Lot 3 is at the northern end, fronting Wodonga-Beechworth Road, and contains the existing house. It is intended that the owners will continue to reside there, as they do now. Lot 4 lies between Lots 1, 2 and 3, and is marked as a "balance" lot. The proposed further subdivision creates further lots on Lot 4 and a second lot out of Lot 3.

7. A plan of subdivision pursuant to the permit has now been certified by Douglas Gow & Associates, surveyors, with the number PS 434980Q. This renumbers the lots and also changes the lots areas. On this plan, they are Lot 11 (2.6 ha), Lot 12 (2.659 ha), Lot 13 (7.410 ha) and Lot 14 (29.95 ha). I will continue to refer to them by the numbers identified on the endorsed plan under the permit, as it is the permit that is the subject of this Application. I note that two broken lines marked with the letter "w", one of which passes north-south through the subject land, and the other running from a well on Lot 4 to the southern boundary have grown on the certified plan to the stature of easements of water supply. The Applicant contests any allegation that there is an existing water supply available by easement to the subject land. There is no easement registered on the title produced with the permit application.

8. The subject land is zoned Rural Living Zone. This zone is governed by Clause 35.03 of the Planning Scheme. A permit is required for subdivision. The Schedule to the Rural Living Zone provides that the minimum subdivision area is 2 ha, with an average of 4 hectares. A minimum area of 4 hectares is specified as the area for which no permit is required to use land for a dwelling. In addition, the Development Plan Overlay for Wooragee applies to the whole of the Wooragee Rural Living Zone. The Development Plan Overlay control is set out in Clause 43.04, and Schedule 5 to the Overlay, which applies where the land is in the Rural Living Zone, is the relevant Schedule.

9. Because Lots 1 and 2 are less than 4 hectares each in area, a permit was required for the proposed dwellings under Section 2 of the Table of Uses in the Rural Living Zone.

10. The subject land is on the western and southern boundaries of the Wooragee Development Plan Overlay area. Two lots have already been carved out of the area, along the southern boundary, leaving the subject land as an irregular site with one lot in other ownership on each side of its 262.74 metre southern boundary (261.86 metres on title), which comprises its frontage to Fanning Lane. Mr O'Dwyer, who appeared for the Council, suggested that this may have been the result of a previous subdivision exhausting development rights under the tenement clause that applied to the area under the previous Planning Scheme. The lot on the corner of Factory and Fanning Lanes at the extreme south-west end of the Development Plan Overlay area now belongs to Mr and Mrs Baker, who have not taken part in this proceeding. The lot to the east of the subject land's Fanning Lane frontage is now owned by Mr A and Mrs J Mott. This is a 2-hectare lot on which they have a house and some cattle.

11. The Applicant and her husband own and occupy 65 acres (26.3 hectares) on the west side of Factory Lane, opposite the subject land. Their property is situated outside the boundary of the Rural Living Zone and Wooragee Development Plan Overlay area, and is zoned Rural. The Applicant, who gave evidence on oath, stated that she and her husband bought the property in 1996, after looking around in the region for some time; and that they chose this area because it was an open, rural area. They had avoided the more densely subdivided rural areas. The Applicant is employed off the property. They run cows and horses on it at present, but are considering olives or vines as possible future agricultural uses.

12. The Application named "Lara Block (and others - see paragraph 14)" as the Applicant. Paragraph 14 on the Application form asks the question "Who else may have a material interest?" This refers to Section 90(2) of the Act, under which the Tribunal may hear "any other person who appears to it to have a material interest in the outcome of the request". Only Ms Block signed the Application form, and only one "Applicant" was referred to in the statement of facts relied on, attached to the Application. I have accordingly construed the Application as having been made by Ms Block. Although they may have been confused about their actual roles, whether as co-Applicants or as persons seeking to be heard under Section 90(2) of the Act, Mr and Mrs Mott, Mr R Hall and Mr G & Mrs P Carson had given notice that they wished to be heard, and were heard under Section 90(2), as persons who appeared to the Tribunal to have a material interest in the outcome of the Application.

13. Mr Hall is in fact the husband of the Applicant, and shares her interest in the matter. The Carsons are owners of land directly south of the subject land, outside the Rural Living Zone and Development Plan Overlay area. The reside on their property, which has an area of 8 hectares, and is used for orcharding (mainly pecan nuts) and sheep.

14. Although it had been named as a referral authority for the purpose of the permit application, and was served with notice of this proceeding, North East Water advised the Tribunal by letter dated 18 July 2000 that Wooragee is not in its serviced area, and this Application was regarded as outside the boundaries of its responsibility. The parties did not disagree. No water authority or sewerage authority (other than the Council) has therefore had input into the decision to grant the permit.

15. The Application is brought on two grounds. These are the grounds set out in Section 89(1)(a) and (b)(iii) of the Act. They are that:

· The Applicant believes she should have been given notice of the application for permit and was not given that notice; and

· The Applicant believes that she has been adversely affected by a material mistake in relation to the grant of the permit.

16. The Applicant gave particulars in support of her grounds. In relation to the alleged failure to give notice, she stated that she had not been given notice, and the Council had asserted that an exemption applied to the application. In relation to the mistake, she stated that the Council had failed to prepare a development plan over the Wooragee area in accordance with the Development Plan Overlay, and had failed to incorporate such a plan into the Planning Scheme. It had also failed to adequately consider the objectives and policy of the Planning Scheme in approving the permit.

17. The adverse effects anticipated from the material mistake were alleged to be a change in the rural aspect of the area, increased traffic, dust and noise pollution, possible impact on supply of bore water, visual impact of large above ground water tanks and lack of vegetation, and increase in effluent flowing into the Applicant's land after heavy rainfall.

18. In his submission at the hearing on behalf of the Applicant, Mr Bartley put the "material mistake" in a different way. He submitted that the material mistakes which arose in relation to the grant of the permit were:

* Incorrect or incomplete information contained within a development report prepared by the permit applicant and used by the responsible authority as its basis for determining the approval of a Development Plan and the grant of the permit application; and

* A failure to conduct, or an absence of any record that the responsible authority conducted, an adequate independent assessment of the permit application, or generate a planning report in relation to the application, making the grant of the permit unsafe.

* Failure to approve the Development Plan prior to the grant of a permit.

19. The Council contested the Application on the grounds that both the permit and the Development Plan are valid, and there had been no material mistake in the processing.

20. I am satisfied on the basis of the statements of service filed that the Applicant has served notice of the commencement of this proceeding on the persons required to be notified for the purpose of the exercise of statutory rights to be heard under Section 90 of the Act, including the Minister for Planning and the owners and occupiers of the subject land, as disclosed by a copy of Certificate of Title volume 9975 folio 739 filed by the Applicant. The owners of the subject land did not appear at the hearing to defend their permit; nor did they give notice that they wished to do so.

21. As this is an Application brought under Section 89 of the Act, there are three statutory requirements to be considered, as well as general discretion under which the Tribunal may, but is not required to, direct the responsible authority to cancel or to amend the permit, under Section 91 of the Act. These are:

· the Tribunal may refuse to consider the Application if it is not satisfied that the Application was made as soon as practicable after the person making it had notice of the facts relied on in support of the Application: Section 89(3);

· The Tribunal must not direct the responsible authority to cancel a permit unless it is satisfied in relation to the ground under Section 89(1)(a) that the Applicant was substantially disadvantaged by the issue of the permit, and in relation to the ground under Section 89(1)(b)(iii) that she was substantially disadvantaged by the material mistake, being the matters set out in the Application: Section 91(3)(a) and (b); and

· The Tribunal must not direct the responsible authority to cancel a permit unless it is satisfied that it would be just and fair in the circumstances to do so: Section 91(3)(c).

22. The Applicant gave evidence that the first she knew of the permit was when she saw an auction sign for subdivided lots on the subject land. She believes that was in early February 2000. This Application was commenced on 9 March 2000. There was a slight delay in lodging this Application because the Applicant had first tried to obtain leave to review the Council's decision to grant a permit, by an application lodged on 6 March 2000. The Council did not seek to argue that the time between the Applicant's learning of the facts and commencing the Application was not "as soon as practicable". The Applicant clearly undertook a detailed examination of the relevant Council file and obtained a grasp of the issues in a short time, and also had a detailed statement of grounds with particulars prepared to accompany the Application. I am satisfied that this action was taken as soon as practicable.

23. Both the ground of "failure to give notice" and the "Material mistake ground" have some relationship to the role of a "Development Plan" in the making of planning decisions affecting the subject land. In order to understand the arguments, it is necessary to go to the Development Plan provisions.

24. The purpose of a Development Plan Overlay as set out in the current Planning Scheme is:

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

To identify areas which require the form and conditions of future use and development to be shown on a development plan before a permit can be granted to use or develop the land.

To exempt an application from notice and review if it is generally in accordance with a development plan."

25. Schedule 5 to the Development Plan Overlay provides that it is not necessary for a Development Plan to be prepared before a permit may be granted for a dwelling on an existing allotment, provided the lot is at least the area specified in the Schedule to the Rural Living Zone. This is the only exemption from the need to prepare a Development Plan before a permit is issued. Lots 1 and 2 are less than the area specified for a dwelling, which is 4 hectares, so that the Development Plan requirements applied to all aspects of the permit application. As regards the subdivision, Clause 43.04-1 applies:

"A permit must not be granted to use or subdivide land...... until a development plan has been prepared to the satisfaction of the responsible authority.

* Be generally in accordance with the development plan.

* Include any conditions or requirements specified in a schedule to this overlay."

26. Clause 43.04-2 contains an exemption from notice and review as follows:

"An application under any provision to this scheme which is generally in accordance with the development plan is exempt from the notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act."

27. This exemption covers the giving of notice of the permit application, the giving of notice of the Council's decision on an application, and the right of an objector to review the Council's decision.

28. It follows from the terms of the exemption, that if an application for a permit is made before a Development Plan has been prepared to the satisfaction of the responsible authority, the exemption does not apply. Only after a Development Plan has been approved does the exemption take effect.

29. Mr Bartley submitted that the Council had not in fact relied on the Development Plan to justify the decision that no notice of the permit application need be given. In any event, the Development Plan that had been prepared was not in accordance with the requirements in the Development Plan Overlay and Schedule 5, so that it should not be treated as a Development Plan for the purpose of the exemption.

30. The Council's submission did assert that the application had been exempt from notice. Mr O'Dwyer informed the Tribunal that the Council had been of the view that no application was needed because the Development Plan had been submitted simultaneously with the application. But alternatively, he went on to contend that no notice was required. Mr O'Dwyer stated that "it was considered unnecessary to give notice of the application to adjoining landowners and occupiers. It was Council's opinion that the subdivision of the land was unlikely to cause material detriment, and would have minimal adverse impact on surrounding land."

31. Mr O'Dwyer further stated that the Development Plan had been endorsed concurrently with the permit for the 4-lot subdivision. Given the dates of endorsement on the two plans, this would not appear to be correct. Mr O'Dwyer explained the procedure that had been adopted in more detail, confirming that the only evidence of Council's "approval" of the Development Plan was the endorsement stamp on the 10-lot plan. There was no separate approval stamp for a Development Plan, so the permit endorsement stamp had been used. There was no Council resolution of approval of the Development Plan. The recommendation for its approval was made on the Council officer's Assessment Report. The delegate's signature was on the endorsement stamp.

32. However, no attempt appears to have been made to adapt the text of the endorsement to approval of a Development Plan for the purpose of the Development Plan Overlay. Not only has the permit plan endorsement stamp been used on it, but the 10-lot plan is described as "sheet 2 of 2" under the permit. (There was no challenge to the existence of delegated power for the officer to approve a Development Plan on Council's behalf.)

33. The 10-lot plan had had to be amended to show increased setbacks. That explains the delay which resulted in the permit being issued before the date of approval of the10-lot plan. Unlike a permit, there is no opportunity for a Development Plan to be approved subject to a condition that amended plans be submitted for further approval at a later date. The only evidence of the approval of a Development Plan under the Overlay is the endorsement stamp, dated 5 October 1999. There was accordingly no approved Development Plan when the permit was issued.

34. The evidence as to how the Council came to its decision on the permit application and the Development Plan, including the decision as to notice, is contained in the Council's written submission, and in the "Planning Assessment Report" completed and signed by Mr O'Dwyer on 28 September 1999, a copy of which was tendered on behalf of the Applicant. This takes the form of a comprehensive checklist with respect to a permit application, which identifies the relevant controls, makes reference to any referrals that may be necessary, contains two options about the giving of notice, and then goes into the identification of relevant policies, requirements of the zone and any overlay, whether there are any relevant "particular provisions" or incorporated documents, and then turns to the officer's recommendation. The checklist does not contemplate that it will be used for approval of a Development Plan, although it contains reference to Overlay controls along with other regulatory provisions.

35. The checklist sets out the following options as regards the need to give notice:

* Notice of the application was given to adjoining owners and occupiers and other relevant persons in accordance with Section 52(1) of the Planning and Environment Act 1987.

* It is unlikely that the grant of a permit will cause material detriment to any person as the proposed use/development is of minor local significance and will have minimal impact on adjoining land. It was considered unnecessary, therefore to give notice of the application.

36. The first option was deleted on the report. The second option was selected. There is an opportunity at the end of the assessment form for general comments, but no comments about notice were included.

37. The standard printed part of the Assessment Report makes the following statements, which are not deleted on the checklist:

* The proposed use/development is consistent with the purpose of the overlay.

* The proposed use/development is considered acceptable in terms of the decision guidelines of the overlay.

38. This contemplates no Development Plan, and does not refer to consistency with a Development Plan. Considering what the Overlay purpose is, it is difficult to see how anything done by an applicant could be consistent with it. There are no "decision guidelines" in the Overlay. There is a provision governing the preparation of the Development Plan, and the requirement that a permit must not be granted until a Development Plan has been approved, after which a permit granted must be generally in accordance with the Development Plan, and include any conditions or requirements specified in the Schedule to the Overlay.

39. The Assessment Report states, in handwritten notes on the page identifying zoning and relevant overlay provisions, that "DPO provisions satisfied. DPO needs amendment but basically satisfactory." The first time it is mentioned, the reference is clearly to the Overlay rather than to the plan submitted under it. The second reference must be to the plan. These notes are consistent with the plan submitted under the Development Plan Overlay being required to be amended, and therefore not approved until amendments had taken place. A further handwritten note appears in "General comments", that "DPO needs to be amended prior to approval". "DPO" would appear to be a contraction of Development Plan Overlay, but from the context, I take it that this is intended to mean the plan submitted under the Development Plan Overlay.

40. The recommendations at the end of the report include "submit final plan". There is no statement about whether it is to be the application or the Development Plan that needs a final plan. But the list of recommendations also includes a list of matters such as "stormwater/access/effluent standard cons", and "roadside main plan", and also "DPO", which is some indication that there is unfinished business with respect to the DPO.

41. For the purpose of the exemption from notice, in any event, it is plain that when the decision was made that no notice of the permit application need be given, which had to be before a decision could be made on the permit application, there was no approved Development Plan. The Council was therefore obliged to address the issue of notice under Section 52(1)(a) and (d) of the Act. This provides:

(1) Unless the responsible authority requires the applicant to give notice, the responsible authority must give notice of an application in a prescribed form--

(a) to the owners (except persons entitled to be registered under the Transfer of Land Act 1958 as proprietor of an estate in fee simple) and occupiers of allotments or lots adjoining the land to which the application applies unless the responsible authority is satisfied that the grant of the permit would not cause material detriment to any person; and

(d) to any other persons, if the responsible authority considers that the grant of the permit may cause material detriment to them.

42. There were owners of land adjoining the subject land, as shown by the evidence. The Council's consideration (by its delegate) involved only one test as to whether notice needed to be given. In the form in which the decision was summarised in the Council's written submission, it did not include any consideration of whether notice should be given of the application for the two dwellings (as well as the subdivision), and it did not address the question required by the Act, namely "is the Council satisfied that the grant of the permit would not cause detriment to any person?" This is a heavier burden than the standard adopted in the question the Council actually asked, which is more akin to the question relevant to whether notice should be given under Section 52(1)(d).

43. In the Assessment Report, the question about notice is related to the subject of the permit application, which is correctly identified at the head of the report as "subdivision and two dwellings". The consideration of whether notice should be given fails to address the issue under Section 52(1)(a), as it merely states that "it is unlikely that the grant of a permit will cause material detriment", instead of forming the opinion that the Council (by its delegate) is satisfied that the grant would not cause detriment to any person.

44. I accept the copy of the Assessment Report as being the a copy of the record of Council's decisions in relation to this application, and the summary in the written submission as unintentionally omitting the issue of use that was in fact considered by the delegate.

45. The form also contains two standardised "reasons" why it is unlikely that the grant of a permit would cause material detriment. I consider this to be a dangerous practice, as it tends to distract attention away from the spectrum of potential detriments that may be caused by the grant of a permit. The form also omits any reference to the possibility that an exemption from notice might apply.

46. If the Applicant were the owner of adjoining land, the form in which the decision was made under Section 52(1)(a) would justify a finding in her favour with respect to the failure to give notice. However, Ms Block is not the owner of a property that directly adjoins the subject land. Her property is separated from the subject land by a road. In Traill v Rural City of Wodonga (1989) 3AATR 107, Judge Jones (as President of the Administrative Appeals Tribunal) considered the meaning of "adjoining" in the context of the notice provisions, and held (at 119):

"The Concise Oxford Dictionary defines "adjoin" as "be contiguous with". "Contiguous" is defined as "touching, adjoining, next in order; neighbouring". A meaning of "touching" or "contiguous" has been applied in a number of authorities: Re Ecclesiastical Commissioners for England's Conveyance [1936] 1 Ch 430; New Plymouth v Taranaki Electric Power Board [1933] AC 680. It has also been held that "adjoining land" should be interpreted as including land separated by a crown reserve but capable of being linked by a vinculum for the purposes of consolidation: Gonella v Shire of Eltham 14 APAD 436 at 439. I think these meanings are appropriate to this context. The word is to be given a common sense meaning having regard to the purpose of the provision."

47. The cases referred to in Gonella v Shire of Eltham, which was decided in 1985 (before the present notice provision came into effect in the Planning and Environment Act 1987) dealt with subdivision, rather than rights to notice. The reference to parcels of land separated by a crown reserve (road) but capable of being joined by a vinculum implied that the parcels were in the same ownership. I do not take the passage quoted above as extending the possibility that parcels of land may be adjoining because they can be linked by a "vinculum" beyond consolidation to rights to be given notice. The reasoning for extending the meaning of "adjoining" in that way does not extend to the circumstances of land in the ownership of two different people: see Gonella (at 439-440). In my view, the plain meaning of "adjoining" in the context of Section 52(1)(a) does not extend to a parcel of land situated across Factory Lane from the subject land.

48. I am supported in this view by what I understand to be the purpose of the provision. Section 52(1) makes a distinction between "adjoining owners and occupiers" who are to be notified of a permit application unless the Council forms a certain opinion, and other people to whom "the grant of a permit may cause material detriment". The immediacy of any off-site impact of a proposal for use or development of adjoining land can be expected to be greater than in the case of land that does not adjoin, even if the separation is quite a narrow road.

49. The Administrative Appeals Tribunal has also adopted the meaning of "contiguous" for "adjoining" in the context of provisions of a Planning Scheme (rather than the Act) in Steve's Auto Accessories Pty Ltd v Whitehorse City Council and Woodfull & Ors v Monash City Council, both noted at 19 AATR 5. These cases both adopted the approach of the Privy Council in New Plymouth v Taranaki Electric Power Board, in which it was considered that "contiguous" is the primary and exact meaning of "adjoining", and "near" or "neighbouring" were looser meanings. Their Lordships held that words are used in an Act of Parliament correctly and exactly, and not loosely and inexactly; and that the person who asserts that this rule has been broken has a heavy burden which can be discharged only by pointing to something in the context that shows that the loose and inexact meaning must be preferred.

50. As the Applicant, it is necessary for Ms Block to show that she believed she was entitled to notice of the application and did not get it. Mr Bartley submitted that as the Council could not have been satisfied as required under Section 52(1)(a), that notice should have been given. But the Applicant cannot show that she was entitled to notice under Section 52(1)(a), and has to rely on Section 52(1)(d) with respect to her first ground. Because it is necessary for an Applicant under Section 89(1)(a) to be the person who did not get the notice in question, a failure to give notice to someone else does not assist Ms Block.

51. Although Section 89(1)(a) of the Act is worded in subjective terms ("the person believes that the person should have been given notice of the application for the permit and was not given that notice"), there are two tests that must be determined objectively. The Applicant was not an objector, and must therefore show that she is a person who "would have been entitled to object to the issue of a permit". She also has to show that the grant of a permit may cause material detriment to her, so that notice should have been given under Section 52(1)(d).

52. To be entitled to be an objector under Section 57(1) of the Act, the Applicant has to be a person who may be affected by the grant of the permit. For the purposes of Section 52(1)(d), only the negative aspect of this "effect" is relevant, because it is the prospect of material detriment being caused that entitles a person to be notified of the application. The nature of the "material detriment" need not be limited to matters that may form the grounds of an objection. The "material detriment" for the purpose of Section 52(1)(d) need not be substantial, but must be neither trivial nor fanciful: Collins Street Properties Pty Ltd v City of Melbourne (1996) 16 AATR 127.

53. The grounds of the objection that the Applicant has lost the opportunity to make in these circumstances must be grounds that may properly be considered in relation to the permit application, which primarily means that the objection must be relevant to the matters to be considered under Clause 65 of the Planning Scheme. Otherwise the Applicant will be unable to show that her objection to the merits of the permit application should be upheld, which will have relevance to the final order. Under Section 90A of the Act, which has been in effect since 31 May 2000 -

"(1) In determining a request, the Tribunal must take into account the matters set out in section 84B(1) as if the request were an application for review.

(2) The matters set out in section 84B(1) are in addition to any other matters which the Tribunal can properly take account of or have regard to or is required to take account of or have regard to in determining a request."

54. Section 84B directs the Tribunal, in making its decision, to take into account any relevant planning scheme and a list of further matters which have not been relied on as relevant.

55. In her evidence, which went to the issue of detriment, the nature of the objections that she wished to make, and the issue of "substantial disadvantage" under Section 91 (3)(a) of the Act, Ms Block stated that she was horrified by the idea of six lots opposite her house. The area was not heavily treed, and she feared that the development would be ugly. The roads are unmade, and dust is raised by every car in summer. She rides around the property every day, and fears increased risk to her dog and horse. The drinking water is excellent spring water, but with 10 additional houses dropping bores and putting in septic tanks, she fears for its quality. She referred to the concentration of houses in one place if the Development Plan is acted on.

56. This is a reference to the proposed future subdivisional layout, which shows, in addition to the two southern lots included as Lots 1 and 2 in the subject permit, a line of five further lots along the Factory Lane frontage, including one created from the original house lot, and having the corner position on Wodonga-Beechworth Road.

57. The Applicant continued that Magpie Creek runs through her property. It runs off the Bakers' property and the two southern lots. At present, they catch rainbow trout in the creek. The Bakers, who own the property on the corner of Factory and Fanning Lanes, next to the Lots 1 and 2, say that they have trouble with effluent when the ground is saturated and the water rises up and into the creek. The effluent problem would be magnified 10 times.

58. The possible detriments were summarised by Mr Bartley as follows:

"The subdivision and development of this land will introduce significant additional traffic and activity into the area, has potential to cause contamination of waterways and will introduce significant change to the visual character of the landscape."

59. The outline of the Applicant's property boundaries as shown on a photograph centred on Factory Lane shows that she has only a relatively small frontage to this Lane. Her property would not be directly opposed to the whole five new lots ultimately proposed, but perhaps two of them. However, it is in the section nearer to Factory Lane that her house is situated, although it is still well set back from the frontage, and appears to be surrounded by trees.

60. The Applicant's photographs also show the banks of the creek, with its line of mature trees, and her cattle feeding nearby, indicating that the cattle are able to use the creek for water. An aerial view shows the tree lined creek running north-west from the corner of the Bakers' property, diagonally across the Applicant's property. There appears to be a secondary line that feeds a dam. Both appear to be well separated from the Applicant's house.

61. The permit application is not about 10 lots; it is about four lots and two houses. The largest of the lots would be a remnant lot, partly opposite the Applicant's land. A further house could be constructed on that lot, although its further subdivision is foreshadowed on the Development Plan. The two new small lots for which house permits are sought are south of the Applicant's land, and separated from it not only by the Lane, but by the property on the corner of Factory and Fanning Lane. The Applicant's reference to the line of six lots opposite her is relevant not to the permit application but to the "Development Plan".

62. Mr O'Dwyer submitted that the time for the Applicant to have objected to subdivision of the subject land was when the proposals for changes to the Planning Scheme to implement the long-standing Structure Plan were exhibited. I do not agree that failure to object to a rezoning, or adoption of a Development Plan Overlay control, should or does deprive the Applicant of her right (if she has one) to object to a particular subdivision.

63. Mr Bartley asserted that the Applicant and other objectors had received no specific notice of a new Planning Scheme provision that would rezone land opposite her property from Rural. She had therefore had no opportunity to object, and the Panel did not hear her views.

64. The Applicant also addressed a number of issues that she wished to raise with respect to the report that had accompanied the permit application. These challenged the accuracy, sufficiency and relevance of the report in a number of respects, both with as regards the permit application and the approval of the Development Plan. This material is also relevant to the second ground of the Application.

65. The test as to whether a person should receive notice of a permit application is not as demanding as the test of "substantial disadvantage" which must be applied before a permit may be cancelled on the Application of someone who did not have the opportunity to object. At the point at which a decision has to be made about notice, there are no conditions of permit that may ameliorate off-site impacts. I consider that, limiting the concerns expressed by the Applicant to the matters relevant only to the 4-lot plan and the two houses which were the actual subject of the permit application, it would have been reasonable for the Council to consider that material detriment may have been caused to the Applicant, and that she should have been notified of the permit application. The potential for detriment at this point in the process, would in my view have been the issue of proliferation of septic tanks in the catchment of the creek, and the concentration of dwellings and small properties around the Factory Lane/Fanning Lane corner, right on the edge of the Rural Living Zone, on the Rural Zone interface.

66. At this point, I will make two observations. First, the evidence as to detriment given by the Applicant is clearly related to the Development Plan as well as to the permit application, which creates only two new lots anywhere near the Applicant's property. This Application cannot cancel a Development Plan approved under the Overlay. The fact that a plan which the Council accepted as the Development Plan was endorsed under the permit does not mean that the Section 87 procedure can be used on a Development Plan. But if the plan is not a Development Plan, but merely a plan endorsed under the permit, it could be cancelled or amended.

67. The subject of the Application has to be the permit. Section 87 does not extend to cancelling Development Plans.

68. Second, both the Applicant and the Council referred to the way in which the Planning Scheme took its present form. Mr O'Dwyer submitted that the Planning Scheme had been advertised three times, as a draft in early1996, the formal exhibition in late 1996, and re-exhibition followed the release of the VPP in mid-1997. There had also been other consultation processes. No objections had been received from Wooragee. All versions had included a number of Rural Living areas, pursuant to the recommendations of a strategic review.

69. Much of the strategic planning for the area had been done by the Albury-Wodonga Region Planning Committee (AWRPC). A copy of the extract from the Regional Planning Strategy 1991 dealing with rural living was produced. Existing rural living areas and fragmented land were then assessed against State, regional and local planning policies and principles to determine the suitability of the locality for rural living; and the result of this assessment formed the Rural Living Strategy, which identified Wooragee as a priority area for further investigation. In 1992, Rural Living Structure Plans were undertaken. Wooragee was found to be a preferred location for Rural Living in the Beechworth area. It was described as capable of supporting a mix of small scale commercial farming operations and rural living situations.

70. The Structure Plan is now a "reference document" in the Planning Scheme: Clause 21.07. A copy of the Wooragee part of the Rural Living Area Structure Plans - Baarmutha, Wooragee was tendered. Clause 21.07 described the documents referred to in it as documents which have been referred to in the preparation of the Local Provisions, and "represent a current list of key policy document that may be relied upon in the implementation [sic] the Scheme".

71. The Panel report had referred to the extensive public consultation process through which the Planning Scheme had gone. Mr O'Dwyer quoted its approving comment on its sound basis "upon land capability principles and on a clear intention to consolidate urban developments in existing towns where adequate infrastructure and services are available". The Panel continued:

"..... this scheme has had a particularly pressing need to balance the competing interests of those engaged in agriculture on the one hand, and residents and tourists on the other. The Panel's conclusion is that overall the shire has been successful in achieving this balance."

72. Mr O'Dwyer explained that this was the first subdivision proposal under the Rural Living policy. Previously, there had been a tenement clause, but no minimum lot size or minimum house lot size. Demand was untested. Mr O'Dwyer thought that the Baker and Mott properties had probably exhausted the former tenement entitlements when they were subdivided.

73. It was Mr O'Dwyer's submission that in view of the background to the preparation of the Planning Scheme, it was considered unnecessary to give notice of the application to adjoining landowners and occupiers. There is no evidence of that on the Assessment Report; but as Mr O'Dwyer was the officer in question, he may well have had it in mind when he was making the decision. The checklist form did not encourage the giving of reasons beyond the two standard reasons set out in it. He also stated that it was Council's opinion that the subdivision of the land was unlikely to cause material detrimental and would have minimal adverse impact on surrounding land.

74. The background to the Planning Scheme, and the rights of persons affected to lodge submissions about the proposed Scheme, have no relevance as far as I can see to the questions that must be asked under Section 52(1) when a responsible authority considers whether notice of a permit application must be given. Both questions are about detriment to certain classes of people. They are not about whether the Planning Scheme's policies are soundly based. That may be a relevant factor for the Council to consider at the point of decision as to whether a permit should be issued; but under Section 52(1), there is no room for balancing factors relevant to that decision.

75. In the context of this Application, the matters referred to by Mr O'Dwyer with respect to the history of the controls may have some relevance to the exercise of the Tribunal's final discretion as to whether an order should be made.

76. In summary, with respect to the ground of "failure to give notice" "I find that there was no approved Development Plan at the relevant date. That means there was no exemption when the decision about notice was made. I further find that the Applicant should have been given notice of the permit application.

77. The Applicant submitted that when the application was considered on 28 September 1999, the original version of the VPP Overlay had applied. On 17 August 2000, there had been an amendment (no. VC8) to the VPPs which changed the nature of the requirement for a Development Plan.

78. The earlier form of Clause 43.04 had contained the following clauses in the "purpose", along with the general purpose of implementing State and local policies:

"To identify areas which require the form and conditions of future use and development to be shown on a development plan before a permit can be granted to use or develop the land.

To exempt an application from notice and review if it is generally in accordance with an incorporated plan."

79. Under a VPP format Planning Scheme, the reference to an "incorporated plan" calls up Clause 81. This provides:

"The documents listed in the schedule to this clause are incorporated documents under section 6(2)(j) of the Planning and Environment Act 1987. These documents are of local application.

If a document is not included in the table or the schedule, it is not an incorporated document."

80. For a plan to become an incorporated plan, the Planning Scheme has to be amended to list it in Clause 81. This potentially gives rise to further third party rights. The Development Plan relevant in this case was never an "incorporated plan" listed in Clause 81 of the Planning Scheme.

81. The amendment made by VC8 substitutes "a development plan" for "an incorporated plan" in the exemption purpose. But the operative part of the Clause, governing the process of approval for a Development Plan, never required that the Development Plan be an incorporated document. The "purposes" may assist in interpretation, but they do not change the permit and approval requirements. The operative part of Clause 43.04-1 is that a permit must not be granted until a development plan has been prepared to the satisfaction of the responsible authority. It is the Council's approval of the Development Plan that opens the way to the issue of a permit.

82. Similarly, the reference in the "purpose" clause to exemptions related to "an incorporated plan" cannot alter the fact that the exemption clause itself refers only to an application "which is generally in accordance with the development plan", not an "incorporated plan": Clause 43.04-2.

83. I do not accept that there has been a change in the procedure governing approval of the Development Plan under the Overlay control. I regard the reference to an "incorporated plan" in the purpose clause as an error, as Mr O'Dwyer suggested. There was reference to a need for incorporation of Development Plans in the Manual for the Victoria Planning Provisions, but it was not carried through into the approved VPP format Schemes. The purpose has now been corrected. The approval process was always governed by the provisions contained in the Development Plan Overlay clause itself, being Clause 43.04-3 "Preparation of the Development Plan", and the more specific matters set out in Schedule 5 for the Rural Living Zone, and the reference to an incorporated plan was an anomaly.

84. The letter forwarded to the Applicant by the Council dated 6 March 2000 describes the situation with respect to the Development Plan approval process correctly. It does, however, contain a further error as to the nature of the test for whether notice of a permit application must be given. This time, the test is described as "Council is only required to give notice pursuant to Section 52 of the Act if it is satisfied that the grant of the permit would cause material detriment to any person". This letter was written well after the relevant date on which the decision was made, and I mention it only to show that there appears to have been continuing confusion over the question of notice. I suspect that there was intended to be a "not" in that sentence; but even so, it is still subject to the defect that it does not deal with both Section 52(1)(a) and Section 52(1)(d), which pose different tests.

85. The basis on which the Council treated the document prepared by "Civentech" described as "Rural Living Development, Woragee, Outline Development Plan", as a Development Plan, appears only from the report submitted by Civentech with the two plans. It does not purport on its face to be a Development Plan. It was endorsed as a plan pursuant to the permit, rather than treated as a Plan governing development in the Overlay Area to which the permit had to conform. The Council's stamp identifies it as follows: "This is a plan to which Planning Permit No. 99-147 relates (sheet 2 of 2)". Nothing on the face of the plan or on the endorsement stamp identifies this document as a Development Plan under the Overlay.

86. There is no document to which I was referred which is clearly identified as the approved Development Plan for the relevant part of the Wooragee area.

87. The Civentech report was tendered by the Applicant. Chapter 4 is headed "Development Plan". A plan is attached as "Appendix 5". The copies of both the application version and the endorsed version of this plan are A4 size, with very small notes and figures which are difficult to read. However, a larger copy of the endorsed version was made available. There are two differences between them. As submitted, the notes show that setbacks from "any other road" (meaning other than the Beechworth-Wodonga Road) are 20 metres, and effluent disposal envelopes are to show setbacks including 20 metres from major drainage lines, wells and dams. On the endorsed plan, the comparable setbacks are shown as 30 metres from "any other road" and 60 metres from major drainage lines, wells and dams.

88. Mr Bartley submitted that the whole of the Civentech report would have to be treated as the Development Plan, as Chapter 4 could not be said to be in accordance with the Overlay requirements. However, I consider that Chapter 4 is intended to be in support of the plan. The introduction to Chapter 4 itself identifies the plan as "the Development Plan attached as Appendix 5". Ppendix 5 is a 10-lot plan entitled "Outline Development Plan". There is no evidence whatever that the Council intended to approve anything other than this plan, even though a Development Plan may consist of "plans or other documents".

89. While the parties went into the question of whether the Development Plan as submitted was adequate under Clause 43.03-4, I consider that on the whole it is better if I do not comment on the process adopted by Civentech and the Council. This may become the subject of further proceedings on another day.

90. Whatever criticism may be made of the process by which the Development Plan was submitted, the adequacy of the information with it, and the basis on which the Council made its decision on it, this Application is not directly concerned with the validity of this plan as a Development Plan approved under the Development Plan Overlay. The fact that there was no approved Development Plan when the permit was granted means it is not necessary to even argue whether the validity of the Development Plan is relevant to this Application.

91. I will, however, mention that I had occasion to consider the nature of a Development Plan in Burnside Properties Pty Ltd v Melton Shire Council & Landstrom Holdings Pty Ltd (Application no. 1999/103954, unreported). I will repeat my comments on the concept, as they appear to be applicable here:

"The first thing that emerges from this argument, in my view, is that all the parties have suffered from the difficulty arising from the Development Plan Overlay concept of making the effect of a regulatory control depend on an instrument the nature of which is not clearly defined in the Planning Scheme, and which requires an approval for which there is no statutory scheme of rights. A Development Plan Overlay depends on "Development Plans" being approved, but there are no provisions as to how an application for approval should be made, who is entitled to be given notice of it, whether affected persons must be heard with respect to it, whether written submissions or an oral hearing is satisfactory, or whether evidence may be called in support of submissions; and ultimately, there is no right of review of a decision either to reject or to approve a Development Plan.

The impact of an approved Development Plan under the Development Plan Overlay on any decision to grant a permit is more than exemption of the permit application from all third party rights. If a detailed Development Plan has already been approved, and the permit application is consistent with it, the Development Plan will be a powerful argument in favour of the issue of a permit. The absence of third party rights specific to the Development Plan procedure by which a person's interests may be adversely affected, plus the impact of approval of a Development Plan on a permit application, plus the exemption from third party rights applying to the permit application add up to a need to take great care in the Development Plan approval procedure.

Of course, it is open to the Council to give persons who may be affected by the proposed Development Plan notice of it, and to accept and consider their submissions. The Council has undertaken a consultation process in this case. It will often be proper to do so. But if the Council rules against an objection, there is no right to refer the matter to any independent body such as this Tribunal, except by way of the limited review available under Section 149B of the Act, which is not a remedy well suited to what is essentially an argument about the application of policy."

92. In trying to come to grips with what was required for a Development Plan in that case, the parties were able to suggest little guidance. It is the same in the present case. Mr O'Dwyer submitted that there would appear to be no requirement for Development Plans to be advertised for public comment or any review opportunities in respect of the preparation of such plans. He also stated that the Overlay only required the Development Plan to be prepared for the land described in the permit, not for the entire Overlay area.

93. With respect to the first matter, the absence of a statutory requirement that notice be given is not the end of the question: see for example No 2 Pitt Street Pty Ltd v Wodonga City Council (1999) 3 VPR 328. With respect to the second, nothing in the Overlay control states that the Development Plan has to cover any particular area; it only requires that there be an approved Development Plan of which it can be said that a permit granted is generally in accordance with it. The extent of the area to be covered, in my view, has to be decided on the facts of the case.

94. Mr Bartley also criticised the cursory treatment given to the local policies with respect to the grant of the permit. Rural living is a subject on which there is a large body of detailed local policy. The subject is a contentious one, as shown by the Minister's inclusion in the Planning Scheme of a monitoring requirement: see Clause 21.06-1. Although the "Rural Use Zone" has crept into this policy too, to confuse the issue of what areas it actually applies to, Clause 21.06-2 refers to general monitoring of takeup and creation of Rural Living lots.

95. The Rural Living policy, which applies in the relevant zone, is set out in Clause 22.01-1. This makes it very plain that the purpose of the zone is not merely to "facilitate a variety of lifestyle choices", but to make more intensive use of agricultural land. The areas included in this zone -

"......seek to recognise existing developed areas able to support a mix of small scale commercial farming operations and rural living situations. The areas identified avoid land of high quality agricultural value or environmental hazard. The areas are capable of being used for a wide variety of small -scale intensive agricultural and horticultural uses."

96. Objectives include ensuring compatibility with existing agricultural uses. Identification of site opportunities and constraints so as to maximise development opportunities is also an objective, and this theme reappears through the relevant policies and controls.

97. Even within the zone, there is a clear differentiation between Rural Living and low density residential subdivision. The zone purpose is:

To provide for residential use in a rural environment.

* Protection and creation of an effective rural infrastructure and land resource.

* Improvement of existing agricultural techniques.

* Value adding to agricultural products at source.

* Promotion of economic development compatible with rural living activities.

* Development of new sustainable rural living enterprises.

To ensure that subdivision promotes effective land management practices and infrastructure provision.

98. Considerable emphasis is placed on maintaining the agricultural opportunities within the zone, and protecting farming on adjacent properties (a "catchment issue" in Clause 22.01-1).

99. There is a substantial list of issues to be considered before a permit can be granted. The application requirements in Clause 35.03-5 require (in mandatory terms) that an application to subdivide land must be accompanied by a report which explains how the proposed subdivision:

* Responds to the decision guidelines for this zone.

* Responds to any additional objectives and performance requirements set out in any relevant Local Planning Policy in this scheme.

100. Mr Bartley also criticised the absence of justification in the report for the creation of lots of little more than 2 hectares. He submitted that lots of this size had to be justified, comparing it to the "default" lot minimum of 8 hectares. However, this is not a zone where the "default" operates. The Planning Scheme contains the lot area minimum size, being "2 ha with an average of 4 ha". The lot sizes meet the minimum; but Mr O'Dwyer also agreed that selection of the locations of the small lots within the overall average required justification through a design response, although he argued that the nature of the site analysis must not be considered as if this was an urban context.

101. Land capability, environmental site constraints or any of the other relevant matters dealt with in the policies, purposes, application requirements and decision criteria are still relevant to whether the subdivision should have been permitted, even though the two new house lots do meet the minimum. Indeed, there is a long list of decision guidelines for subdivision in the Rural Living Zone. These include:

* The maintenance of farm production and the impact on the local rural economy.

* Whether the site is suitable for the use or development and the compatibility of the proposal with adjoining and nearby land uses.

* The farm size and the productive capacity of the site to sustain the rural enterprise and whether the use or development will have an adverse impact on surrounding land uses.

* The need to prepare an integrated land management plan.

* The impact on the existing and proposed rural infrastructure.

* An assessment of industry requirements, growth expectations, staging of the development and investment requirements.

102. Land supply and demand is the first issue listed in the "Decision Guidelines" which are intended to be considered in addition to those applicable under the regulatory part of the Planning Scheme, included in the policy in Clause 22.01-1. A site analysis which documents the site in terms of land form and relationship to surrounding land (amongst other things) is a policy requirement. Topography also appears as a "catchment issue", along with protection and enhancement of the natural environment and character, including retention of habitat.

103. One of the decision guidelines set out in Clause 35.03-6 requires that the Council consider whether the dwelling is reasonably required for the operation of the rural living activity conducted on the land. Another sets out design and siting criteria that cannot, Mr Bartley submitted, be dealt with on the basis of the Civentech report.

104. I accept that the application, including the accompanying report, did not deal with the rural and production issues, illustrate topography in terms that show the subject land in its context, or mention habitat. The report states that agricultural quality is average; but this is part of what qualifies the area for the Rural Living Zone. It does not address the opportunities for future use of the lots proposed to be created.

105. Mr Bartley also criticised the Council for failing to have regard to Clause 22.01-2 (Rural Dwelling Siting & Design Guidelines), which was not included in the checklist. Clause 22.01-2 states that it applies "within the rural use zone". This looks like an intention to refer to one specific zone, which is wrongly named, as there is no rural use zone. The policy does however makes reference to "development of rural land for rural living opportunities" in the Policy Basis, and both the objectives and the decision guidelines refer only to "rural lands". The Rural Living Zone has its own "subdivision and development" policy in Clause 22.01-1. This shares aspects of the same Policy Basis, but does not deal specifically with dwellings, even with respect to the important element of water storage for fire fighting purposes. I conclude that Clause 22.01-1 was supposed to apply to "rural use lands", or some such expression, rather than being a policy limited to a particular zone, and that it is relevant to an application for a dwelling in the Rural Living Zone.

106. Although it was omitted from the checklist, I am not satisfied that the Council did not have regard to this policy. What are in effect extracts from it appear as permit conditions: see Conditions 10-12, and to some extent 14, although the substance of that condition is also found in Clause 22.03-2 (fire hazard).

107. Two matters that are required in a Development Plan, which are related to the regulatory nature of a Development Plan, are "Require the provision of soil and water reports to accompany all applications demonstrating the capacity of infrastructure to service the development, treat and retard stormwater and reduce any downstream soil and water impacts of the development." Instead of including this in the Development Plan, Civentech provided the Site Capability Assessment, which dealt with soil, so that the information provided was related to the permit application rather than the Development Plan.

108. The test bores were located in the northern parts of the two new lots 1 and 2, and only one hole maximum was sunk for the sites of the future proposed lots shown on the Development Plan. The bore logs on which the effluent disposal relies were, in Mr Bartley's submission, flawed by the limitation in the depth of the bores. He submitted that the bore holes went into friable topsoil, but the depth at which the lines would have to be dug would go into the underlying clay layer, resulting in flow on top of the clay layer towards the creek used by his client, and other waterways during periods of high rainfall. Mr Bartley also referred to the observations of the Bakers about effluent coming to the surface during periods of sheet flooding.

109. The Bakers were not present to be questioned by the Council, and there are many questions that could be asked about this kind of reported statement. I place no weight on this allegation.

110. Mr Carson's statement of grounds dealt largely with the policies, zone purpose, decision guidelines, and requirements of the Overlay, asserting that various aspects had not been met. At the hearing, Mr Carson stated that the slope from Lots 1 and 2 went towards his dams, which are used for his stock. He was concerned about the effluent, and also about increased traffic, noise and dust, and visual amenity. His house looks towards the house sites to the north, some 300 metres away. He thought he may be affected by sun on the roof.

111. Mr Carson used the analogy of problems experienced in the township of Stanley to illustrate his concerns about effluent. The Planning Scheme recognises that Stanley, which is located in a Rural Zone, and is also located in a water catchment, is contributing to pollution of the water supply. Mr O'Dwyer explained that the lots in Stanley were urban sizes, and some of the septic tanks ancient.

112. Mr Carson also stated that he had been with Mr Baker when he was putting in his septic system about 4-5 years ago. The trenches were filling as they dug. He stated that there was not much chance of effective dispersal during winter.

113. When Mr Carson had learned of the permit, he had asked to see the Development Plan, which had been referred to as the justification for the absence on notice of the application. He had expected to see an overall plan for the zone, showing how easements for utilities, public open space and so on were to be laid out. He submitted that the permit had been issued in isolation, without any thought for the future and how this site would relate to an overall scheme.

114. Mr and Mrs Mott sent in a statement of grounds which relied on the statement of facts attached to the Application. They did not attend the hearing.

115. Mr O'Dwyer submitted that none of the disadvantages asserted by the Applicant could be sustained. He referred the fragmented nature of development in the locality, the setback requirements, and the permit conditions governing the appearance and screening of buildings. With reference to road noise and dust, he stated that it was intended to impose a condition on the second stage of the subdivision that road improvements be undertaken. There is no reference to this in documents submitted with this application, nor any indication of how long it will be before it happens.

116. With respect to water, Mr O'Dwyer's information indicated that groundwater allocations were not critical in the region, leaving it to be assumed that the required volumes of water would be available.

117. With respect to effluent, Mr O'Dwyer relied on the Civentech report and the setback from the creek, along with adequate maintenance, to ensure the systems did not discharge into any waterways.

118. With respect to vegetation, Mr O'Dwyer stated that the existing on-site vegetation was predominantly non-native pine trees, planted as wind breaks, which could be removed without planning approval. This ignores the policy aspect of vegetation retention. It also fails to have regard to how the existing vegetation links to the overall scheme of landscaping which a Development Plan is required to provide.

119. Capability of the lots to support a mix of small scale farming operations could be assumed, Mr O'Dwyer submitted, along similar lines to the existing lots on either side of Lots 1 and 2. It was not mandatory for every site to be farmed. While that is so, consideration of how the development relates to rural land use is mandatory, along with the issues set out under the heading "Rural issues" in the Decision Guidelines for the zone (Clause 35.03-6.)

120. The Civentech report did not fully satisfy the requirements for a Development Plan as set out in Clause 2 of Schedule 5 to the Development Plan Overlay. But this is a matter going to the exercise of discretion, as whether the requirements were satisfied or not, the evidence is that the permit was issued before any "Development Plan" was approved. This is a material mistake of a fundamental nature in the administration of a Development Plan Overlay. Under Clause 43.04-1, no permit may be granted until the Development Plan has been prepared to the satisfaction of the responsible authority. As the responsible authority is a Council, that "satisfaction" must be evidenced by some record of approval of a Development Plan. The only such evidence is on an endorsement stamp saying that a plan which is described on its face as an "Outline development plan" is endorsed as sheet 2 of 2 under a permit. The date of the endorsement is several days later than the issue date for the permit. There is no evidence that a plan has been approved as a Development Plan for the purposes of Clause 43.04 of the Planning Scheme, pursuant to the requirements of that clause.

121. This is a matter going to the validity of the permit, although in the context of this Application, that is not the subject of the enquiry. I do not consider that I can overlook it, however, when considering the question of remedy.

122. As the Applicant has established the grounds of the Application, the questions of "substantial disadvantage" to the Applicant, and whether it would be fair and just to cancel the permit, must be considered.

123. The evidence about existing effluent problems is not very satisfactory. There has been no evidence that effluent in an untreated state has left the property of Mr Baker and entered the property of the Applicant. As far as the Applicant was concerned, she was repeating what the Bakers had told her about a problem they had within their land. Mr Carson may have seen the trenches filling with water, but whether or not the system he saw being dug was a properly sited system conforming to the Septic Tank Code of Practice is an open question. If Mr Baker's property has been causing a nuisance by emission of untreated effluent, I would have expected some reference to the steps taken to stop it. I conclude that there is no existing problem in the operation of Mr Baker's septic tank which causes an adverse impact on the creek passing through the Applicant's property, and that it is fear of what might happen through the proliferation of septic tanks that is the real issue.

124. Mr Bartley criticised the absence of contours on the site analysis plan, indicating the fall of the land and the relation of the creeks to the possible catchments. There was reference to topography in the Site Capability Assessment, but it was described verbally rather than by showing the contours. The assessment stated that:

"Catchments that could generate on site runoff are contained within the property and thus there is limited opportunity for excessive overland flows to impinge on effluent field sites."

125. The assessment described the soil types as showing characteristics "indicative of good internal soil drainage". The site generally was described as "devoid of environmental constraints in relation to the location of effluent fields", except for the required creek setback. The soil percolation tests refer to the clay layer and its depth, and it is also referred to specifically in the report, so that the conclusions reached by Mr Larkin have had regard to its existence.

"......the large lot sizes can more than adequately accommodate the physical construction of effluent fields and, as demonstrated, the soil types, topography and hydrology of the development site are suitable for the construction and operation of effluent fields."

127. Although this report is not signed by a consulting engineer (or at all), the Council accepted that it had been submitted as part of a report by David Larkin of Civentech Consulting Engineers, who submitted the application. No-one challenged the qualifications of the author to carry out an assessment of this nature. Mr Larkin was acting as the permit applicant's representative, rather than as an independent expert, but this material was presented in a separate report dealing with matters of engineering expertise on which the Council was by implication invited to rely. In the absence of any expert or technical evidence to show that this assessment is not reliable, I accept it. Mr Bartley's criticisms of the assessment would in my view be capable of technical solutions, as Mr Bartley conceded, if in due course it were to be found that septic tank systems for the two new lots could not be sited within areas of appropriate soil types. Only two septic tank systems are in question in this permit, as there is an existing house on the northern lot, and Lot 4 is intended for resubdivision.

128. There are two permit conditions dealing with effluent, Conditions 4 and 14. Condition 4 makes the disposal and absorption of all effluent and wastewater "within the boundaries of the land" a requirement to be met to the satisfaction of the Environmental Health Officer. It any untreated effluent found its way to the creek, and then to the Applicant's property, the Environmental Health Officer could not be satisfied and the permit condition would be breached. The Council as responsible authority, or any person, would then be entitled to take enforcement action under Section 114 of the Act.

129. In the case of Condition 14, a further consent is required for an on site effluent disposal and treatment system. The system is not only to comply with the Code of Practice, it is to be located so as to ensure that all effluent and wastewater is disposed of and absorbed "within the boundaries of the land" to the satisfaction of the Environmental Health Officer. It would appear that the design and location are intended to be governed by Condition 14, and ongoing performance by Condition 4.

130. While this form of condition protects the Applicant and other owners, I note that it does not require that all effluent be absorbed within the lot on which it was generated. "The land" is the entire site, as appears from the permit heading.

131. Mr O'Dwyer stated in his submission that the Council's Environmental Health Officer had advised that the documentation provided by Civentech adequately addressed the issue of effluent disposal, and that "the site was capable of containing and treating on-site effluent disposal". It is not clear what "site" is referred to in this statement. There are two permitted house sites and two other sites. Again, there appears to be some confusion between the individual lots permitted and the entire site. There is no indication in the documents evidencing approval, being the endorsed plan and the Assessment Report, that the opinion of the Environmental Health Officer with respect to the adequacy of the soil and water report was made available to the delegate before he made the decision on the permit.

132. As far as the permit is concerned, the further consent that has to be given for the septic system allows the details of the system to be checked; but it does not change the definition of the "the land", which determines the standard to be applied. I consider that the policy in Clause 22.03-4 (Effluent disposal and water quality) makes it reasonably clear that prevention of "the discharge of effluent off site" is intended to mean off the site of the permitted development, i.e. of each lot on which a house may be constructed, not the whole of the land being subdivided.

133. As far as the permit application is concerned, Mr Bartley further criticised the site analysis for failing to identify the existing houses in the area, the general pattern of vegetation, and the size of the surrounding properties.

134. Although most of the detailed requirements for the content of a site analysis required by the local policy in Clause 21.01-1 to accompany a permit application relate to the details of what is proposed on the subject land, the site analysis is described in the following terms:

An application should be accompanied by a site analysis, documenting the site in terms of land form, vegetation coverage and the relationship with surrounding land, and a report explaining how the proposed subdivision has responded to the site analysis.

135. The content requirements also include "How the proposed subdivision relates to the existing or likely use and development of adjoining and nearby land."

136. This is of course a policy, and although it must be considered where relevant, it is not part of the regulatory part of the Planning Scheme. The permit application requirements for the zone do not include a site analysis. There are no detailed application requirements for dwellings, although there is a requirement for a limited report in the case of a subdivision application. I do not consider that the policy that there should be a site analysis overrides the specific requirements in Clause 35.03-5 as regards subdivision, so that its only possible relevance in this application could be to the dwellings. I note that Clause 35.03-5 requires the report to accompany a subdivision application to "respond to any additional objectives and performance requirements set out in any relevant Local Planning Policy"; but the "site analysis requirement" is neither an objective nor a performance requirement. It is under the headings "Policy", and "decision guidelines".

137. As the Local Planning Policy is that an application in the Rural Living Zone should be accompanied by a site analysis, but the zone does not adopt this policy, and instead makes a different requirement, it is difficult to see what operation this policy could have. The place to implement the policy would have been in the zone provisions. I do not consider there has been a failure to observe this aspect of Clause 21.01-2.

138. Mr Bartley submitted that his client would suffer substantial disadvantage by being deprived of the opportunity to object to the application, and if the subdivision was carried out in the form proposed, by the development of Lots 1 and 2 close to her property, through traffic noise, dust, potential contamination of the creek and visual amenity in terms of potential siting of dwellings and above-ground water tanks of very large dimensions. Mr O'Dwyer explained that the required 90,000 litres could be stored in a tank 14 feet in diameter by 7 feet high, and fed by rainwater collected from roofs.

139. Mr O'Dwyer submitted that having regard to the fact that the application was for a four-lot subdivision and erection of two dwellings, the Council's decision was reasonable in the circumstances. The proposal met the provisions of the Rural Living Zone, and was consistent with relevant State planning policies, the Municipal Strategic Statement and relevant Local Planning Policies. No substantial disadvantage had been substantiated, and what had been alleged was speculative.

140. Mr Bartley criticised the absence of a proposal for dust prevention on the access road to the new lots, emission of dust being an environmental issue included in the decision guidelines. I am not satisfied that the dust likely to be blown into the Applicant's property as a result if the addition of two houses fronting Fanning Lane would create a substantial detriment. Similarly in the case of traffic noise, two more dwellings in Fanning Lane have not been shown to create a substantial disadvantage.

Block & Ors v Indigo Shire & Ors [2002] VCAT 199

At a glance

Court

Decision date

Before

Source

Judgment (229 paragraphs)

Block & Ors v Indigo Shire & Ors [2002] VCAT 199 (28 December 2000)

Parties

Legislation Cited (3)