Bottomley v Boroondara City Council [2025] VSC 127

2 On 6 March 2023, the first respondent, Boroondara City Council (the 'Council'), determined to issue a Notice of Decision to Grant a Permit for the use of land for the purposes of a 'dental laboratory', where dentures are made to online orders, at 1/89-‍93 Whitehorse Road, Deepdene (the 'Site').

3 The Site is in the Commercial 1 Zone ('C1Z') of the Boroondara Planning Scheme (the 'Scheme'). The permit application was retrospective as the Site was already in use as a dental laboratory.

4 The applicant in this proceeding, Ms Margaret Bottomley, objected to the permit application, as she considers that the dental laboratory poses risks to health and safety arising from odours, dust and noise emissions impacting on her tutorial and education centre which is located next door to the Site. Ms Bottomley is particularly concerned with the use of crystalline silica and the health risks associated with silicosis.

5 The second respondent, Eunseol Jang, was the permit applicant.

6 The application for review under s 82 of the Planning and Environment Act 1987 (Vic) (the 'P&E Act') was heard before the Tribunal on 10 November 2023. The Tribunal characterised the key issues arising from the proposed use as follows:

(a) What is the characterisation of the use?

(b) Whether the dental laboratory is a land use compatible with the surrounding context?

7 The Tribunal delivered its decision and reasons on 6 March 2024 and made the following orders:

Amend application

1. Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the permit application preamble is amended to read:

Use of the land in the Commercial 1 Zone for industry (dental laboratory)

Permit granted

1. In application P392/2023 the decision of the responsible authority is varied.

2. In planning permit application PP22/0907 a permit is granted and directed to be issued for the land at 1/89‑93 Whitehorse Road, Deepdene VIC 3103 in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:

• Use of the land in the Commercial 1 Zone for industry (dental laboratory)

8 The Tribunal found that the dental laboratory was a small scale activity appropriate for a commercial setting. However, it required modifications imposed by way of additional permit conditions to 'minimise adverse impacts on the health, safety and amenity to both the occupants and staff of the use and the adjoining and surrounding neighbours.'[2]

9 Ms Bottomley seeks leave to appeal the orders of the Tribunal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the 'VCAT Act'). In order to grant leave, the Court must be persuaded that there is a question of law which has a real prospect of success on appeal.[3]

10 On 18 September 2024, the Council advised the Court that it did not intend to further participate in the proceeding, and it did not attend or make submissions at trial.

11 On 12 February 2025, Ms Jang advised the Court that she wished to be removed as a party to the proceeding and she filed an affidavit on 12 March 2025 requesting same. Ms Jang ultimately attended the trial but chose to not make any submissions.

12 For the reasons which follow, I am not persuaded that, to the extent that any of the matters raised by Ms Bottomley constitute a question of law for the purposes of a s 148 application, there is any real prospect of success such that the Court should grant leave to appeal.

13 Ms Bottomley's amended notice of appeal filed 4 July 2024 identifies five questions/grounds, which can be summarised as follows:

(a) Question 1: Was the Tribunal allowed to grant a permit to a non‑entity applicant, when all documents presented to the Tribunal were for a different (corporate) entity?[4]

(b) Question 2: Have the Tribunal and Supreme Court omitted important issues when forming their view on retrospective approval?

(c) Question 3: Was the Tribunal wrong in its application of cl 71.02 of the Scheme ('Integrated decision making' and 'net community benefit')?

(d) Question 4: Should not a registered business which goes into operation without the required permit incur a pecuniary penalty, rather than be rewarded with a retrospective permit approval?

(e) Question 5: Should the Tribunal disregard the Victorian Commercial Zoning regulation and cl 53.10 of the Scheme to grant a permit in this case?

14 The first question raised has no prospects of success. A permit runs with the land and not with the name or identity of the applicant.[5]

15 There is no requirement for the use to be carried out personally by the entity which sought the permit. The relevant obligation on a permit applicant is to inform the land owner.[6]

16 The principles which apply in determining an application for a retrospective permit are well established.[7] The Tribunal deals with this issue at [17]-‍[20] of its decision. A permit applicant is neither to be punished or rewarded for commencing works or a use before a permit was obtained and the permit application is to be judged on the planning merits. There is no bar to an application for a permit being made retrospectively.

17 The role of the Tribunal is to consider the application for permit now sought on how it responds to the provisions and policy of the Scheme, and how the use may impact on the amenity of the surrounding land use by way of noise, odour and dust emissions.

18 The Tribunal correctly identified and applied those principles. It considered the amenity impacts complained of by Ms Bottomley and formed a view on the acceptability of the use, reinforcing the protection of amenity and the small scale of the use by the conditions imposed.[8]

19 This question raises the issue of whether cl 71.02 of the Scheme, being the concepts of 'Integrated decision making' and 'net community benefit', were wrongly applied.

20 This question challenged which matters were taken into account in the application of these planning principles. Section 84B of the P&E Act sets out the matters the Tribunal must take into account in undertaking a review. This includes any matter the Council properly took into account in making its decision, or was required to take into account in making its decision, the relevant planning scheme, the objectives of planning in Victoria, and any relevant environmental reference standard within the meaning of the Environment Protection Act 2017 (Vic). Clause 65.01 of the Scheme provides additional matters the Council (and Tribunal on review) was required to consider as appropriate.

21 After hearing an application for review, the Tribunal may direct a permit be issued with or without the conditions proposed by the Council or additional conditions it determines to be appropriate.[9]

22 The Tribunal considered the matters relevant to exercising its discretion in respect of an application for use in the C1Z, in particular the purposes of the zone and the relevant state and local policies. There is no set priority of matters to be taken into account as planning considerations may vary widely according to their relevance to particular application. The Tribunal determined it was appropriate to grant a permit. However, it is obvious that, by the imposition of the additional conditions, it has turned its mind to the matters raised by Ms Bottomley, including the amenity impacts of the use, the health and safety of the workforce and the broader community, as well as the purpose of the commercial zone to provide a range of commercial activities, including a small scale dental laboratory.

23 The Tribunal has considered the zone and overlay controls, and the policy framework for a decision in respect of the use under consideration in the C1Z.[10] The Tribunal is obligated, in making a decision, to consider matters in an integrated manner with net community benefit as the overarching stated policy aspiration. The Tribunal needs to satisfy itself that the use is an acceptable outcome having regard to the relevant policies and provisions in the planning scheme. This requires a weighing up of the both positive and negative factors and determining whether, overall, there is a net community benefit.

24 This is the approach the Tribunal took in its assessment.[11]

25 What weight the Tribunal gives to the relevant factors is a matter for the Tribunal. That a party does not agree with the weight ascribed to any particular factor, or the outcome of the decision on its merits as a whole, is not amenable to review by this Court on review under s 148 of the VCAT Act.

26 I cannot discern any error in the approach or application of the policy and the permit triggers required to be considered by the Tribunal.

27 This question, of whether a company conducting activities without a permit should be penalised rather than granted a retrospective permit approval, does not raise a question of law for consideration by the Court. It is in the nature of a policy statement or rhetorical observation.

28 There is no substance to this proposition as a valid question of law.

29 The final question, 'should the Tribunal disregard the Victorian Commercial Zoning regulations[12] and cl 53.10 of the Scheme to grant a permit in this case?', is also without merit.

30 The property is in a C1Z. The purpose of the C1Z is to, among other things, create mixed use commercial centres for retail, office, business, entertainment and community uses, and provide for residential uses at densities complementary to the role and scale of the commercial centre.

31 The categorisation of the use was in issue before the Tribunal and the Tribunal characterised the dental laboratory use as 'Industry' which is a section 2 permit required use. There is no discretion to grant a permit if the use was a prohibited use.

32 The Tribunal dealt with categorisation of the use at [4] and [26]-[40] of its decision. The description of the use was described by the Council as a dental laboratory (an innominate section 2 use). The Tribunal took the view that the use was properly characterised as 'Industry' as it involved the manufacture of goods. Industry is also a section 2 use in the Table of Uses to the C1Z which means that it requires a permit. The use of land for 'Industry' is subject to the condition set out in section 2 of the zone control that the use must not be for a purpose listed in the table to cl 53.10 which relates to 'uses and activities with potential adverse impacts'.

33 Only a permit for use was triggered as no buildings or works were proposed.

34 The Tribunal's reasoning did not ignore or misapply the C1Z or cl 53.10 of the Scheme.

35 The Scheme provides for the exercise of discretion to grant a permit for specified uses (and developments) in accordance with the zone and overlay purposes and the relevant planning policies.

36 The characterisation of the use is determined by the Tribunal as a question of fact. That use is then assessed against the planning scheme provisions and policies. Here, the activity described as a dental laboratory, for planning purposes, was characterised as 'Industry' and a permit is required for that use under the provisions of the C1Z.

37 Ms Bottomley took issue with the Tribunal's assessment against the table to cl 53.10 which she argued was wrongly applied. She submitted that use proposed fell into a category which was not permissible.

38 The Tribunal analysed the activities undertaken as part of the use and formed a contrary view.

39 The manner in which the Tribunal undertook the task of characterising the use then applying it to the Scheme was open to it and it does not demonstrate legal error.

40 It is a question for the Tribunal to determine what weight to give any particular factor.

41 The Tribunal carefully weighed the considerations it was required to take into account and its decision on the merits is not open to substitution by this Court.

42 It is unfortunate that the applicant here did not take heed of the outcome of the Tribunal's carefully reasoned decision and involved herself, the Council and the permit applicant in expensive, and no doubt stressful, litigation which has no merit.

43 As a self‑represented litigant, she could not be expected to grasp the intricacies of planning law and the interplay between the P&E Act, the Scheme, the legislation about which of the Environment Protection Authority or WorkSafe has jurisdiction, or that which applies to the Council (and the Tribunal, standing in the shoes of the Council on review of its planning decisions).

44 As was explained to her at trial, the role of this Court in a review of a tribunal decision in the nature of judicial review, which is available to her under s 148 of the VCAT Act, is a limited one. The Court is unable to put itself in the place of the Tribunal and substitute its own opinion of the merits of the planning decision in the absence of clear and material legal error. A difference of opinion is not an error of law.

46 I will provide the parties with an opportunity to make submissions as to any application for costs.

[1] The orders and reasons are recoded in the published decision of Bottomley v Boroondara CC [2024] VCAT 200 ('Tribunal's Decision').

[4] Cf Crimes Act 1958 (Vic) s 321.

[5] Elwick 9 v Freeman [2018] VSC 234; Eaton & Sons Pty Ltd v Warringah Shire Council [1972] HCA 33; (1972) 129 CLR 270, 293 (Stephen J).

[7] See Knox City Council v Tulcany Pty Ltd [2004] VSC 375, [13]; Malone v Bass Coast SC [2018] VCAT 1442, [42]-‍[43].

[8] The conditions imposed are recorded at Appendix A to the Tribunal's Decision. I note in particular that the preamble describes 'what the permit allows' as the '[u]se of the land in the Commercial 1 Zone for industry (dental laboratory)' and Conditions 3-7, 12 and 13-16.

[11] Tribunal's Decision, [23]-[25].

[12] I have assumed this is a reference to the content of cl 34.01 of the Scheme.