(Given orally at the hearing and subsequently revised)

1. This is an application for a review by an objector under section 82 of the Planning and Environment Act 1987.
2. The only reason why a permit is required is under the Heritage Overlay. The notice of decision to grant a permit provides that the permit will allow partial demolition and construction of buildings and works to an existing dwelling in a Heritage Overlay in accordance with endorsed plans.
3. The statement of grounds by the applicant relates solely to the length of the wall on the boundary, negative impacts of overshadowing and loss of outlook, and general loss of amenity. The grounds also include the following:

We request consideration of the impacts of overshadowing and reinstatement of clause 54 (ResCode) in assessing this heritage application. (The reasons for the 2005 Amendment VC33 removing clause 54 do not appear adequate).

1. It is a well-established principle of planning law, known as the National Trust principle[1] that a discretion cannot be exercised for a purpose other than that for which it is granted. This means that if the sole reason why a permit is required arises under the Heritage Overlay, then the responsible authority (or the Tribunal upon review) may only exercise its discretion whether to grant a permit based on matters arising under the Heritage Overlay.
2. General amenity considerations and ResCode issues relating to overshadowing, overlooking and walls and the length of walls on boundaries are not heritage related matters or matters that arise generally for consideration under the Heritage Overlay. Whilst at one time there was a provision in the planning scheme that applications under the Heritage Overlay were required to meet certain ResCode provisions, this aspect of the planning scheme was amended in 2005 by Amendment VC33, which removed the requirement for a Clause 54 assessment for Heritage Overlay applications in a residential zone. On this issue, the Tribunal must apply the planning controls as they exist at the time of making a decision. The Tribunal has no power to change the provisions or outcome of Amendment VC33 and apply ResCode provisions, whatever the applicant's views are about the reasons for the Amendment. This ground is therefore misconceived and lacking in substance.
3. As discussed at the hearing, there are certain ResCode standards that a single dwelling on a single lot, which does not require a planning permit under the zone controls, must meet under Building Regulations. I was advised that the proposal meets these requirements. However, the issue of a building permit under the Building Regulations is not a matter something that I have any control over and is not relevant in this proceeding.
4. At the hearing, the council raised the issue as to what continued role the National Trust principle had in light of the decision of the Court of Appeal in Boroondara City Council v 1045 Burke Road Pty Ltd & Ors[2]. This issue was addressed by AJA Garde:

[121] The National Trust Case stands for the principle that a discretion cannot be exercised for a purpose other than that for which it is granted. This principle continues to have underlying validity. However, identification of the purposes for which the discretion is granted is undertaken by reference to the Act and the Scheme and not by reference to preconception or speculation as to what those purposes must be.

(1) in deciding whether a permit should be granted to demolish or modify a building under the Heritage Overlay in the Scheme, considerations of a non-heritage nature can be taken into account provided that they are relevant matters under the provisions of the Act or the purposes, objectives or decision guidelines relating to, or incorporated into, the Heritage Overlay;

1. The other judges agreed with this proposition. However, this does not mean that any matters whatsoever can be considered when deciding whether to grant a permit under the Heritage Overlay (or indeed any other planning control). Rather, the matters to be considered must still be relevant to the purpose of the control - in other words, the discretion must still be exercised for the purpose for which it is granted.
2. The 1045 Burke Road case has confirmed that the range of matters it is relevant to consider under the Heritage Overlay is not confined to a narrow view of what constitutes heritage significance, but may address the full range of matters identified in the overlay, including the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.[3] Nevertheless they must remain relevant to the purpose of the exercise of discretion.
3. Thus in 1045 Burke Road, in deciding whether to grant a permit for demolition of a building in the Heritage Overlay, the Court of Appeal determined that it was open to the Tribunal to consider the strategic context of the site and it was relevant to consider planning policy for urban consolidation, housing diversity, sustainable development and urban design in deciding that the adverse outcome associated with the loss of this particular building of modest significance was outweighed by the benefits arising from the overall proposal
4. The Court made it clear that a separate decision to grant a permit must be made in respect of each individual permit trigger. It is not appropriate to decide that a permit should be granted for some aspects but not for others, then conclude that on balance a permit for the overall proposal should be granted. A positive decision to grant a permit in respect of each and every planning control is required.[4]
5. In the present case, the applicant has raised no grounds relating directly to heritage issues or that are relevant in the context of the Heritage Overlay. The issues she has raised arise as relevant matters under the exercise of discretion under a different planning control, namely the zone provisions. However, no permit is required under these provisions. To attempt to apply these provisions to an entirely different planning control (the Heritage Overlay) would not be appropriate. They are not matters that the council or the Tribunal could take into consideration as being relevant in exercising discretion under the Heritage Overlay, especially having regard to Amendment VC33.
6. For these reasons, the Tribunal would be falling into error to consider or give weight to the grounds relied upon by the applicant. Accordingly, I find that this application is misconceived, lacking in substance and has no prospect of success. The application is therefore summarily dismissed.

[1] Based on the Supreme Court decision in National Trust Aust (Victoria) v Australian Temperance & General Mutual Life Assurance Society Ltd [1976] VicRoads 592; (1976) LGRA 172

[2] [2015] VSCA 27

[3] Clause 43.01 Purpose and Clause 43.01-4 Decision guidelines

[4] [2015] VSCA 27 at [23]- [24], [35]-[38] and [153]