3. Application for Review no. 1999/60317 (re permit application no. MV/11067) shall be set down for hearing at a date to be fixed before a Member who is a qualified planner and me.

4. The permit applicant has liberty to apply in Application for Review no. 1999/18178. If no application has been made prior to the hearing date fixed for Application for Review no. 1999/60317, Application for Review no. 1999/18178 shall be set down for formal order on the same date.

5. The costs of Application no. 1999/61352 and the costs of this hearing in Applications for Review nos. 1999/18178 and 1999/60317 are reserved.

Mr A Hooper QC, instructed by Stephen James Fenton Pty, appeared for the Applicant.

Mr S Stewart of Minter Ellison Lawyers appeared on behalf of the Responsible Authority.

Mr Gary Testro, Lawyer, appeared for the Permit Applicant.

1. This hearing dealt with the legal issues raised by the Applicant in three Applications concerning land in Union Road, Ascot Vale. The Applications are:

(a) Application no. 1999/61352, lodged by Dr K N Bretherton on 9 August 1999 under Section 149B of the Planning and Environment Act 1987 ("the Act"). This seeks declarations.

(b) Application for Review no. 1999/18178, lodged by Dr Bretherton on 9 March 1999. This is an objector's review under Section 82 of the Act of a decision by the Moonee Valley City Council to grant a permit in application no. MV/10674 for development of a partly two-storey medical centre.

(c) Application for Review no. 1999/60317 lodged by Dr Bretherton on 9 August 1999. This is also an objector's review under Section 82 of the Act of a decision by the Moonee Valley City Council to grant a permit, this time in application no. MV/11067 for development of a larger medical centre.

(b) the legal issues contained in "Grounds of Appeal" paragraphs 1-6 in Application for Review no.1999/18178; and

(c) the legal issues contained in "Grounds of Appeal" paragraphs 1-6 in Mr Bretherton's Notice in Application for Review no. 1999/60317.

3. There is little or no dispute about the factual background, at least for the purposes of the preliminary legal argument.

4. All the land which is included in both permit applications is zoned Residential 1 under the Moonee Valley Planning Scheme. The relevant provisions appear in Clause 32.01. A permit is required in this zone for the use of land for the purpose of a medical centre: see Section 2 of the Table of Uses appearing in Clause 32.01.1. A permit is also required for buildings and works associated with a Section 2 use: Clause 32.01-5. A permit is required for a car park, which is a separate named use in Section 2 of the zone's Table of Uses. "Car park" is defined in the Planning Scheme as "Land used to park motor vehicles". The relevant provisions affecting car parking requirements are set out below.

5. It is noted, although not relevant for present purposes, that Council forwarded application no. MV/10674 to Melbourne Water by way of referral, although there appears to be no relevant zone provision requiring it to do so. Melbourne Water has recommended several permit conditions under Section 56 of the Act, including a condition setting floor levels of new buildings at least 300 mm above the applicable flood level. Melbourne Water has continued its request for this condition at the Tribunal, explaining by letter dated 29 June 1999 that 71 Union Road is subject to flooding from its Ascot Vale Main Drain. Council also proposed this condition for the Notice of Decision in application no. MV/11067.

6. Mr Darcy Brennan (the Permit Applicant) is the owner of the freehold of what I will describe for this introduction as 67-69 Union Road, Ascot Vale, which is a consolidated site on which there is a two-storey chemist shop (also referred to as a pharmacy) with a rear car park comprising 6 car spaces and a garage, accessed off a right of way that runs between Geddes and Mirams Streets. These properties are situated on the west side of Union Road, and Union Road and the right of way run north-south in parallel. The chemist shop is let to a tenant, who has been notified of these Applications, but who has not chosen to take part in the proceedings. It is operated under Permit no.ES 4623, which was issued by the City of Essendon on 31 August 1987.

7. The Permit Applicant also owns the freehold in 71 Union Road, being the property adjoining no.69 on its north. On 27 November 1998, Hede Architects acting on his behalf lodged a permit application, no. MV/10674 for development of a "partly two storey medical centre building operated by three doctors" on land that was described on the application form as 71 Union Road, Ascot Vale. The plans attached to the application in accordance with the requirement of the form, however, revealed that as well as a new building at 71 Union Road, it was proposed to construct a car park that continued over the rear part of 67-69 Union Road, which was still shown as "existing chemist", and which changed the layout of the existing car park. The layout included two spaces that were directly accessed off the right of way, and an access lane, which was located over the property boundary of the two sites, giving access to two rows of car spaces, one of which was on 67-69 and the other on 71 Union Road. An area of landscaping was also shown on the southern side of the car park on 67-69, dividing all but one of the car spaces from the adjoining property, shown as no.65.

8. In all, there were 16 spaces shown over the rear parts of 71 and 67-69 Union Road. Nine of these were located on 67-69. The access lane was shared between the two sites, with the greater part of it being on no.71.

9. Permit application no. MV/10674 was amended by the substitution of Darcy Brennan as Permit Applicant in place of Hede Architects by the Tribunal by an order dated 26 August 1999. The role of Hede Architects was as the owner's architect. As architect, Hede submitted the application form and plans, with a letter dated 25 November 1998, explaining in greater detail what was proposed. The heading of this letter was "Proposed medical centre at 71 Union Road and rearranged car park at rear 67, 69 and 71 Union Road, Ascot Vale", but the application form and plans referred to "71 Union Road".

10. This letter explained that three doctors who were already established at a medical centre situated at "63 Union Road" were proposing to relocate to new premises and operate as they had previously done. The existing medical centre is located immediately south of the pharmacy site, on the corner of Union and Geddes Road, and is more often identified as 63-65 Union Road. The application included Hede's proposal for parking, which was that 5 spaces should be provided for the first doctor, and 3 each for additional doctors. This produced a total requirement of 11 spaces. The parking proposal was:

"The existing carpark at the rear of the pharmacy and the proposed medical centre will be rearranged to provide 17 car parks which include 6 car parks currently required for the pharmacy and 11 car parks for the new medical centre. Refer to Car Park Layout on Drawing no. 97115-TP02."

11. The name of the owner did not appear as applicant on the application form as lodged with the Council. Instead, the boxes at the bottom of the form which reflect the requirements of Section 48 of the Act were completed by "option A" - "I am the owner of the land. I have seen this application" being circled, and the signature of Mr Brennan appearing.

12. The Council gave notice of the application under Section 52 of the Act. However, the notice did not say anything about the rear of 67-69 Union Road. It only named 71 Union Road.

13. Nine objections to the application, including one from the Applicant, Dr Bretherton (identified on Council's list with the property described as 63-65 Union Road) were received by the Council. Dr Bretherton is the owner of the existing medical centre at 63-65 Union Road.

14. A Notice of Decision to grant a permit was issued on 16 February 1999. The section of the notice form which commences "What the permit will allow" was completed "Development of two storey medical centre". The notice identified its subject land as "71 Union Rd, Ascot Vale". In this, it was consistent with the manner in which notice of the application had been given under Section 52 of the Act .

15. The Notice of Decision contained proposed Condition 1, which provided:

"Prior to the commencement of the use hereby permitted a Section 173 Agreement must be entered into between the owners of 67-69 Union Road and 71 Union Road addressing the construction, maintenance and joint access to the rear car parking area hereby approved."

16. All this land is in the same ownership, as described.There were a number of other conditions relevant to parking. Proposed Condition 4 required that the "area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan shall .........

(c) be made available for such use at all times and not be used for any other purpose."

17. The Permit Applicant was able to obtain an additional property, 73 Union Road, that had not been available when application no. MV/10674 had been made. There is a complication in the ownership at this point, as 73 Union Road was not purchased by Mr Brennan, but by a company, Firstline Assets Assets Pty Ltd. Mr Testro, who represents this company and the three doctors who wish to move their practice to the new medical centre as well as Mr Brennan, amended his submission to state that Mr Brennan is a director of the company, and John McCorkell, who is one of the three doctors, also has an interest in the company. The other two doctors who wish to move to the new centre do not have an interest in Firstline Assets Pty Ltd.

18. With 73 Union Road as well as 71 available, the second permit application, no. MV/11067 was made. The applicant was shown as "Darcy Brennan" to the care of a new consultant, "Gattini & Partners Town Planners & Project Managers". The land was described on the application form as "Rear of 67-69 (pharmacy) and nos 71 & 73 Union Road Ascot Vale". The proposal was described as "medical centre". The upper floor in this application is extended over the whole of the lower floor, rather than only the front part of it, as in the first application.

19. The application was accompanied by plans and a report from Gattini & Partners. The report included a survey plan and copy titles. It describes the proposal as having four elements, three of which relate to parking. They are:

· _Construct a medical centr_e to cater for a maximum of 7 practitioners (presently only three medical practitioners will occupy the premises).

· Reconfigure the car parking at the rear of 67-69 Union Road (pharmacy) to provide 90 degree parking either side of the 6.4 metre access way.

· Provide disabled parking at the rear of the pharmacy and at car space number 1 which are near the main entries.

20. This report also refers to demolition of the brick garage "at the rear of the pharmacy site".

21. The parking provision required by the table in Clause 56.06-6 of the Planning Scheme was referred to. This specifies 5 spaces for each practitioner. Reference was made to the provision in Clause 56.06 for a permit to be granted to reduce this requirement (para 4.2 of the report). It goes on (at Section 5) to refer to existing underutilised car parking at the rear of the pharmacy forming part of the application, arguing that the total of 36 spaces found between the two sites would cater for both the pharmacy and the medical centre.

22. The plans accompanying the application (Hede job no. 97115, drawing nos. TP01 and TP02 revision B) showed 7 car spaces on the property that was identified on the locality plan as 67-69 Union Road, and the balance on the rear of 71 Union Road and over the whole of 73 Union Road. There are two access lanes, one of which was located on 73 Union Road and the other almost, but not quite, wholly within 67-69 Union Road. A narrow buffer strip was shown as separating the car park on 67-69 Union Road from 63-65 Union Road.

23. The Council again gave notice of the application under Section 52 of the Act. However, even though the application form had been explicit about the rear of 67-69 Union Road, even putting that property first in the land description on the application form, the notice only named 71-73 Union Road as "the land affected by the application".

24. A total of 22 individual objections to the application were recorded by the Council in the list provided to the Tribunal, representing about 16 properties. Dr Bretherton was again among the objectors.

25. A Notice of Decision to grant a permit was issued on 21 July 1999. The section of the notice form which commences "What the permit will allow" was completed "Medical Centre (7 Practitioners) Operating hr 8am-9pm mon to fri & 8-5 sat". The notice identified its subject land as "71 & 73 Union Rd, Ascot Vale".

26. Once again, conditions about car parking were proposed. Condition 2 states:

"Prior to the commencement of the use hereby permitted a Section 173 Agreement must be entered into between the owners of 67-69 Union Road and 73-75 Union Road addressing the construction, maintenance and joint access to the rear car parking area be hereby approved. The agreement shall be prepared and executed at the applicant's expense."

27. As Mr Hooper pointed out, this proposed condition contains two errors; 73-75 Union Road should be 71-73 Union Road, and the words "be hereby approved" have been jumbled by the insertion of the "be" where it does not belong. The ownership of the land is complicated by the fact that the company owns 73 Union Road; but at least the Condition does not wholly require Mr Brennan to enter into an agreement with himself. I will comment gratuitously that I regard the condition as misconceived as well as mistaken. Presumably the Council intended that the agreement should be between the owners of all the land involved in the car park proposal and the Council itself; although even so the condition leaves a good deal to be desired. The permit applicant, however, did not attempt to review it.

28. Proposed Condition 14 contained the same requirements as had been imposed in the notice of decision in application no. MV/10674, that the "area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan shall .........

(c) be made available for such use at all times and not be used for any other purpose."

29. Other car park requirements were also proposed. They relate to construction matters and the like, and do not need to be set out.

30. Against this background, the Applicant, Dr Bretherton, has raised a number of legal issues. The consequence, in the submission made on his behalf by Mr Hooper, is that the Tribunal has no jurisdiction, and no power to excuse or remedy any of the defects which are alleged to have occurred. This is because the permit applications have not reached the status of "proceedings under a planning enactment", which is a condition precedent to the exercise by the Tribunal of the powers contained in Clauses 55, 62 and 64 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.

31. This proposition depends on the arguments set out in more detail in the Applications, which I will now summarise.

32. This seeks declarations under Section 149B of the Planning and Environment Act 1987 with respect to both permit applications, to the following effect (omitting some of the detail about the applications which has already been set out above):

(a) That permit application MV/10674, "which purports to seek a permit, inter alia, for the alteration of the car park at 69 Union Road, Ascotvale is and has at all material times been invalid, void and of no effect."

(b) That permit application MV/11067, "which purports to seek a permit, inter alia, for the alteration of the car park at 69 Union Road, Ascotvale is and has at all material times been invalid, void and of no effect."

(c) "That the rear of the land situate and known as 69 Union Road, Ascotvale may only lawfully be used for the purposes of a car park pursuant to Planning Permit no. ES-4623 issued on 31 August 1987 in conjunction with the permitted use thereof as a pharmacy and/or pursuant to any amendment thereof made pursuant to Section 87 of the Planning and Environment Act 1987."

(d) "Such other declarations, directions and/or relief that the Tribunal considers appropriate."

33. The grounds on which this Application relies are set out in a separate document dated 20 August 1999. They start with the proposition that land at the rear of 69 Union Road may only lawfully be used for the purposes of a car park pursuant to Permit no. ES-4623, in conjunction with the permitted use of that land as a pharmacy; and that both permit applications MV/10674 and MV/11067 seek a permit for the alteration of the car park at 69 Union Road. The responsible authority had no jurisdiction to amend Permit no. ES-4623 except by application made to it under Section 73 or Section 62(3) of the Act. The only other ways to alter the use of that car park are by making an application for a new permit including the whole of 69 Union Road, or by application under Section 87 of the Act; and therefore the responsible authority had no jurisdiction to entertain either permit application, by reason of which they were both invalid, void and of no effect.

34. Further, it was alleged that neither permit application complied with Section 48 of the Act, as neither was signed by the owner of 69 Union Road, or included a declaration that the owner had been notified of the application. This was also alleged to deprive the responsible authority of jurisdiction to entertain the applications.

35. Finally, it was alleged that the notice given of both applications under Section 52 of the Act was defective in that it failed to identify or disclose that the land at the rear of 69 Union Road formed part of the land for which a permit was sought in each case, and also that it was proposed to alter the layout and use of the car park at the rear of 69 Union Road by these applications.

Application for Review no. 1999/18178 (re permit application MV/10674)

(a) The Responsible Authority had no jurisdiction to entertain the subject application which did not comply with the mandatory requirements of Section 48(1) of the Act and/or decide to grant a permit for the development of land.

(b) The Responsible Authority had no jurisdiction to entertain the subject application which in form and substance was insufficient to found the decision to grant a permit for the development of land.

(c) The Responsible Authority had no jurisdiction to entertain the subject application and/or decide to grant a permit for the development of the subject land in the absence of any application being made with respect to the land at 67-69 Union Road and/or an application pursuant to Section 87 of the Act to amend Planning Permit No. ES-4623 issued on 31 August 1987.

(d) The Responsible Authority had no jurisdiction to entertain the subject application and/or decide to grant a permit for the development of the subject land by means of the specification of Condition 1 which is ultra vires in the circumstances.

(e) No proper and/or sufficient notice of the application has been given that satisfies the requirements of Section 52 of the Act.

(f) The Responsible Authority had no jurisdiction to entertain the subject application and/or decide to grant a permit for the development of land which did not comply with the provisions of the Planning Scheme."

Application for Review no. 1999/60317 (re permit application MV/11067).

Grounds (a) and (b) are identical to those for Application for Review no. 1999/18178.

Grounds (c) and (d) contain differences, highlighted below:

(c) The Responsible Authority had no jurisdiction to entertain the subject application and/or decide to grant a permit for the development of the subject land in the absence of any application being made with respect to the whole of the land at 67-69 Union Road and/or an application pursuant to Section 87 of the Act to amend Planning Permit No. ES-4623 issued on 31 August 1987.

(d) The Responsible Authority had no jurisdiction to entertain the subject application and/or decide to grant a permit for the development of the subject land by means of the specification of Condition**s 2, 9, 12 & 14** which are ultra vires in the circumstances.

Grounds (e) and (f) were the same as in no.1999/18178.

Proposed amendments to application no. MV/10674

36. By letter dated 28 July 1999, Mr Testro gave notice to the Tribunal that his client intended to apply for several amendments, including amendment of the land description in permit application no. MV/10674 so as to read "71-73 (and the rear of 67-69) Union Road Ascot Vale 3032". The application for amendment was rejected, because taken as a whole, it would have constituted substitution of the second permit application for permit application no. MV/10674 during the period in which objectors might commence an Application for Review of permit application no. MV/11067, defeating the rights of objectors to the second application. The two applications retain their separate identities.

37. In order to follow the argument for the Applicant, it is necessary to know more about Permit no. ES-4623, which applies, in its own terms, only to 67 Union Road. This permit forms the basis of the grounds relied on by the Applicant in support of the Application for declarations

38. First, the description of what is permitted is "To construct buildings and works and use no. 67 Union Road, Ascot Vale as a pharmacy in accordance with the accompanying plan." The application form was signed by the present Permit Applicant, Darcy Brennan.

39. It is clear from other material on the Council file related to the application for this permit that it was always understood that the works involved an extension of an existing building at what has been identified at this hearing as 69 Union Road, on which a pharmacy already operating, and expanding it into the adjoining property at no.67. The street numbering, however, is shaky.

40. A copy of Certificate of Title volume 4277 folio 257 and a search of Certificate of Title volume 7937 folio 067, appear to have accompanied the permit application. Both titles were identified in the application form, although only 69 Union Road (not 67) was named as the subject land. In other words, application was made for no. 69, the direction from the Council to give notice of the permit application specified 69 Union Road as the subject land, and described the proposal as "extension to existing pharmacy"; but a permit was issued for no. 67 Union Road.

41. The Council officer's report referred to 67-69 Union Road. The plans ultimately endorsed refer only to 69 Union Road. This means the pharmacy has a permit for 67 Union Road, with plans endorsed under it for 69 Union Road.

42. None of these discrepancies seem to have caused any problems to anyone during the operation of the pharmacy in the expanded building on the combined site. It seems to have been generally accepted that whatever the permit says, the property to which it is attached is the property now described as 67-69 Union Road. Although the treatment of the street address may have been casual, the actual application did contain the title details, so there was a solid basis of fact on which to identify the subject land. The "existing site conditions" plan also showed the site in its context, detailing the uses of properties down to the Geddes Street intersection; so to the person inspecting the Council file, there was enough information to enable the subject land to be identified with confidence.

43. Mr Hooper informed the Tribunal that a new title, Certificate of Title volume 9876 folio 469, had been issued for the combined site, and tendered a copy of it. The title is in the sole name of Mr Brennan, and continues to show the road (which has also been referred to as a right of way) at the rear of the title.

44. Mr Testro confirmed that his client Mr Brennan owns 67-69 Union Road as well as 71 Union Road. This identification of Mr Brennan as the owner of 67-69 Union Road overcomes the objection taken under Section 48 of the Act to the absence of owner's signature, or certification of the giving of notice to the owner, in the completion of the application forms in no. MV/10674 and to some extent in no.MV/11067. Mr Brennan signed both application forms as owner.

45. Turning to the content of application no.ES-4623, the "existing conditions" and "site plan" sheet of the plans endorsed on 31 August 1987 under the Melbourne Metropolitan Planning Scheme show no.67 as a vacant shop, which was more or less a mirror image to the existing pharmacy building. The proposal was to extend both buildings towards the rear, and expand no.67 southwards to the property boundary which separated nos. 67 and 65 (or 63). There was an existing carport at the rear no.69, and a car space at the rear of no.67, both of which could have been accessed direct from the road (right of way) at the rear, although the existing site conditions plan is not specific as to whether this was the case. The site layout could equally have allowed access direct from the property to the south, which is shown as no. 63 Union Road in the sketch locality plan forming part of the Council file copied and tendered by Mr Stewart. This was described as "Ascot Vale Medical Centre", and was shown situated on the corner of Union Road and Geddes Street. This is the site now owned by Dr Bretherton, and described as nos.63-65.

46. The proposal shown on this plan was for a garage on no.69, and the 7 car spaces were beside it and parallel on the other side of an access lane running from Geddes Street to 67 Union Road through the adjoining Ascot Vale Medical Centre. The parking was proposed to be laid out across both nos.69 and 67 on both sides of the access lane, with direct access from the right of way to the parking being blocked by a landscaping strip.

47. No-one sought to argue that anything turns on the fact that two permits and two sets of endorsed plans appear to have been processed at approximately the same time. If a permit was required under the Melbourne Metropolitan Planning Scheme and also under the Essendon Planning Scheme, and the Council had delegated power to act as responsible authority under the Melbourne Metropolitan Planning Scheme, the use of a common reference number would not have caused any difficulties; and it appears the applicant and the Council ensured that the two sets of plans were eventually consistent with each other, although there was a time lag between the two sets of permit documents. However, the only permit produced to me was the permit issued under the Melbourne Metropolitan Planning Scheme, and my comments about the permit must be confined to that permit. If two permits were required, and they differed, both would have had to be complied with. There is nothing to show that a separate permit issued under the Essendon Planning Scheme differed from the permit issued by the City of Essendon under the Melbourne Metropolitan Planning Scheme.

48. Mr Hooper laid some emphasis on the use of the expression "the accompanying plan", instead of the "endorsed plan" in the permit. At a very late stage, during Mr Testro's submission, Mr Hooper raised a new argument concerning the identity of "the accompanying plan".

49. The permit conditions did not require any changes to be made to the application plan before endorsement under the permit, so that the accompanying plan could easily be recognised as an approved application plan; however, the Council file revealed that more than one plan had been endorsed under both Planning Schemes.

50. Condition 1 of the permit provided as follows:

"This permit shall have no effect until such time as:

.1 a legal agreement between the owners of the properties of Nos. 63 & 65 and 67 & 69 Union Road is submitted to the satisfaction of the Responsible Authority enabling access into the subject site."

51. It was apparent that this agreement was needed because the endorsed plan showed access through the adjoining property, 63-65 Union Road. The letter to Mr Brennan from the Council dated 1 September 1987 accompanying the permit specifically pointed out the condition requiring the agreement to be entered into. However, the agreement required by Condition 1 was never entered into. Instead, a request for amendments to the endorsed plans was made by letter from Civilstrut Design dated, it appears, 16 February 1989 (the photocopy produced is not clear). The purpose of the changes sought was "to avoid the legal arrangements between the adjoining doctor's surgery and Mr D Brennan, and the problems which could occur in the future."

52. In association with the change to the access, amendments were sought to reduce the area of the building, and reduce the number of parking spaces from what had originally been 8 to 7 (including the garage). A plan showing those changes was endorsed under the Melbourne Metropolitan Planning Scheme, with the same application reference, as an amended plan showing parking and floor area only, on 15 July 1988. Another copy of this plan was endorsed under the Essendon Planning Scheme on 7 February 1989. The final endorsed plans (a set of four plans endorsed 21 February 1989) also showed access from the laneway and the same parking layout as the amended plan endorsed on 15 July 1988, but contained more detail of the construction of the building and other works. Copies of the pharmacy permit and endorsed plans were tendered by Mr Hooper, and Mr Stewart made the Council file available for further copies to be obtained as necessary.

53. Although the plans endorsed under Permit no. ES-4623 may have been amended (by what power, and whether effectively in law being questions raised by Mr Hooper) the permit document itself has not been amended. The last endorsed plans have been complied with, and ten years have passed without complaint as far as I have been made aware. Mr Hooper asserts that his client, who would have been a party to the required agreement under Condition 1, as owner of the adjoining land, never knew of the original endorsed plans. Mr Hooper therefore sought to amend his submission so that his argument concerning the role of the land at the rear of 67-69 Union Road depended on the first endorsed plan, not the 4-sheet set endorsed on 21 February 1989 and treated by Council as "the endorsed plans" for this permit.

54. Dr Bretherton must, however, have been aware all along that he had never entered into an agreement with the owner of 67-69 Union Road, and also aware as the adjoining owner of the present configuration of the pharmacy car park. He has apparently continued on with his own business and his own plans without having found it necessary to enquire into the history of the parking and access arrangements at 67-69 Union Road. I will state at the outset that I see no good reason why he should be entitled to the benefit of any remedy which has non-compliance with Condition 1 of Permit no. ES-4623 as its base, when the non-compliance has had the effect of allowing his medical centre property to be enjoyed by him and his colleagues without disturbance from a neighbour seeking a right of way over it. If anything, non-compliance with Condition 1 is a benefit to the owner and occupier of the property that would have been encumbered by the required agreement. And the layout for 67-69 Union Road as shown on the final endorsed plans is a workable one, relying on a road over which the owner of that property has rights of way.

55. Section 62(3) of the Act authorises a responsible authority to:

"........ approve an amendment to any plans, drawings to other documents approved under a permit if the amendments are consistent with the planning scheme and the permit."

56. The amendment of the endorsed plans on 15 July 1988, 7 February 1989 and 21 February 1989 is consistent with the Planning Scheme, but not with Condition 1 of the permit, if Condition 1 is taken to be a continuing obligation. Moreover, because the Condition commences with the words "This permit shall have no effect until such time as... a legal agreement etc" it could be argued that the permit never came into effect.

57. However, the legality of the use of the land to which this permit relates is not in issue. Mr Hooper has attacked only the proposal to superimpose a car park sharing arrangement for the benefit of 71 and 73 Union Road over the land set aside for car parking attributable to the pharmacy use permitted by Permit no. ES-4623. No previous suggestion appears to have been made over the long intervening period that there is anything wrong with pharmacy use; indeed, Mr Hooper's argument depends on its continuance.

58. It seems to me that the sensible approach to Condition 1, and one that is consistent with what the Council and the owner have actually done, is to treat the words "enabling access into the subject land" as being the gist of the Condition. The objective of the Condition is clearly to ensure the continuance of lawful access to the land made available for parking. Once the Council had approved access into the subject land that did not need any agreement with adjoining owners, it was satisfied with compliance under this Condition. I see no reason to go behind the Council's endorsement of amended plans, and will treat the 4-sheet set of amended plans endorsed on 21 February 1989 as being the current "endorsed plans" under this permit.

59. Mr Hooper acknowledges that the right of way is open for access off Geddes Street, and continues on to Mirams Street. But he stated that there is also a de facto link between the pharmacy and the medical centre car park area, which would enable vehicles to circulate through what has the appearance of a common car park, without going out into the right of way to move between them. This would not be in accordance with the endorsed plans. I see no reason to pursue this in the present context, as the legal arguments have not been made to depend on the actual parking layout at present operating at the rear of 63-69 Union Road. If the Council, or the Applicant, was not satisfied with the state of compliance at 67-69 Union Road, either could have taken the appropriate action.

60. Mr Hooper agreed that under Notice of Decision no.MV/11067, seven car spaces would still be provided within 69 Union Road, accessed from a lane coming off the right of way and laid out for two way vehicle movement within no.67; but the same number would be made to serve no.71 as well. He submitted that the report by Gattini & Partners dated May 1999 accompanying the permit application made it clear that the rear parking is part of the site. It follows that to grant a permit in the application is to include the entire parking area (including that part laid out on nos. 67 and 69 Union Road) in the permit, so that it would be subject to a permit for a medical centre. But it is already subject to the permit for the pharmacy, which use is to continue (the Gattini report refers to this, and the application plans show it as "existing chemist ... to remain").

61. Although the documents accompanying the application talk of "reconfiguring" or "rearranging" the parking under Permit no. ES-4623, Mr Hooper pointed out that permit application no.MV/11067 was not for a "replacement" permit for the pharmacy site. The pharmacy use was not included at all, although the Gattini report alludes to it and assumes its continuance.

· either the parking to be provided for the medical centre took on the planning character of the use with which it was associated, and itself became "medical centre", including that part of it which was to be accommodated on the pharmacy site; or alternatively,

· the use of land for the purpose of a combined car park for the two uses of medical centre and pharmacy took on a separate identity as a "car park". No application had been made for a permit for the parking as a use independent of the medical centre.

63. Mr Hooper referred to the terms of Permit no. ES-4623, requiring construction of buildings and works and use of 67 Union Road in accordance with the accompanying plans. The "rearrangement" of the car park proposed in these applications, he submits, conflicts with those plans, and therefore with Permit no. ES-4623. He argued that the inconsistency is such that the permits cannot be relied on simultaneously.

64. An application could have been made under Section 62(3) or Section 87 of the Act to vary the plans or the permit; but these applications are not made under either Section. They rely on Section 47, which Mr Hooper argued, authorises an application for a permit to be made in the required manner, but does not authorise an application for modification or variation of an existing permit. He further argues that Section 61, which enables a responsible authority to grant or refuse a permit, does not confer on a responsible authority a statutory jurisdiction to modify or vary an existing permit.

65. This Tribunal does have jurisdiction to amend an existing permit in certain circumstances, under Section 87 and the following sections; but a responsible authority does not share that power. Its amendment powers are the more limited ones found in Section 73 and (with respect to plans) Section 63(2).

66. As both the permit applications here seek to amend Permit no. ES-4623, Mr Hooper submits that they are invalid. The Council could not lawfully entertain an application to amend the existing permit affecting the car park area. Each application is therefore a nullity. Moreover, Mr Hooper submits, this Tribunal has no jurisdiction to amend applications which have been received and processed without jurisdiction or statutory power.

67. The purpose of the Application for declarations is to pursue the argument that the Tribunal cannot use its powers to amend an invalid permit application so as to make it valid, and an objection to jurisdiction cannot be waived. Although the Tribunal has wide powers to amend documents, Mr Hooper submitted that if the application was a nullity, it cannot form the basis of an Application for Review, and the statutory amendment power cannot be exercised. The application, Mr Hooper concluded, cannot be amended or varied so as to make an invalid application failing to conform to the requirements of Section 47 of the Act anything other than a nullity, as jurisdiction to do so is lacking. His authority for this proposition was R v Justices at Carlton; ex parte Dunstan [1964] VicRp 101; [1964] VR 778.

68. Before going into the question of the availability or otherwise of the Tribunal's power to amend permit applications or documents in a proceeding, and to waive various defects, it is relevant to look at whether the permit applicant wants any of these powers to be used.

69. Mr Testro acknowledges that the "rearrangement and reconfiguration" of the car park behind the pharmacy would be a different car park configuration to the one shown on the plans endorsed under Permit no. ES-4623; but he denies that either permit application purports to effect an amendment of Permit no. ES-4623. He submits that the permits can co-exist, but that until Permit no. ES-4623 and its endorsed plans are amended, they cannot be used at the same time.

70. The argument continues that multiple permits are not necessarily inconsistent, or mutually exclusive. Where a conflict does arise through inconsistency, the inability to use all the permits at the same time, however, does not prevent the permits existing and being legally effective. The conflict does not become relevant before a permit is issued, or before the new permit is sought to be used.

71. In relation to that point, Mr Stewart submitted that the prior inconsistent permit could not be relied on once the development under either of the proposed medical centre permits had been validly completed, or the use was being conducted.

72. Mr Testro denied that either of the new permit applications sought to replace Permit no. ES-4623, or to amend it. He submitted that there was a line of authority that amendment of an existing permit could not be achieved by new permits, quoting John Paul College v City of Frankston (1991) 7 AATR 185. Instead, Mr Testro argued that once either of the new permits was issued, consistency could be achieved with Permit no. ES-4623 by use of all the powers to which Mr Hooper had referred to amend that permit or its endorsed plans, or by way of an application for a replacement permit. His client was not seeking to assert that he could both take the benefit of a permit, and fail to meet the obligations imposed by the permit conditions and endorsed plans. Some form of amendment to the pharmacy permit or plans, or a replacement permit, would be necessary before use commenced under either medical centre permit, in order to achieve consistency between the permits.

73. Mr Testro further denied that to make application for a new permit over land where there was already a permit in existence was to seek to amend the existing permit. As he pointed out, that would mean that no permit could be sought for a site that had an existing permit. It is of course correct that if a site is operating under a permit as a petrol filling station, for example, which has come to the end of its economic life and is purchased by a developer for residential subdivision, a permit can be sought and obtained for the new use while the old use is still operating under the old permit. The two subject matters of the permits simply could not operate together. There would be no question of the new permit amending the old one.

74. But in the present instance, it would be physically possible to change the parking layout and park cars on the land supposedly set aside for parking on the pharmacy site while the pharmacy continued to operate. The conditions of Permit no. ES-4623 do not expressly require the parking to be used exclusively for the purposes of the pharmacy; only that the parking area be used for parking. The two permit applications assume that the pharmacy and its car park use would continue, although with different layouts and on a shared basis.

75. Mr Stewart agreed that neither of the medical centre permits allow the pharmacy use to continue; its only authorisation is its existing permit. But the Council contemplated that Permit no. ES-4623 could continue if the endorsed plans were amended to reflect the reconfigured car park, among other possibilities. This does not confront the issue of change to the permitted use of the car park area, which at present is "pharmacy".

76. What Permit no. ES-4623 allows is use and development for the purpose of a pharmacy. The parking required to be provided is an activity ancillary to the pharmacy. Although there is an inconsistency between the pharmacy use of the car park land and permitted medical centre use of the same land in terms of the characterisation of the two separate uses, in both cases the same land would be used for required parking. But the identity of actual physical use does not mean that a later medical centre permit could affect the car park area in such a way that the pharmacy could continue to operate lawfully under its permit in the present form. Parking under the permits for both the pharmacy and the medical centre (in the form of either proposed permit) would be ancillary to the permitted use, and have the character of that use.

77. The descriptions of what was approved in the two Notices of Decision restrict the permitted use to 71 or 71-73 Union Road respectively, so that possible conflict between ancillary parking required by Permit no. ES-4623 and under either Notice of Decision does not arise directly from the proposed permits. The description of what is to be permitted is not made dependent on being "in accordance with the endorsed plans". As far as the first section of each Notice of Decision is concerned, there is no mention of 67-69 Union Road. However, Condition 1 of Notice of Decision no. MV/10674, and Condition 2 of Notice of Decision no. MV/11067 both make reference to "the construction, maintenance and joint access to the rear car parking area hereby approved." The context for this reference is a requirement for a Section 173 agreement with the owner of 67-69 Union Road. Whatever the description of the approved subject may say, the conditions assume that the extension of medical centre car parking over the pharmacy land was been approved by each Notice of Decision.

78. The mere issue of permits for medical centre use in the terms proposed, however, would not affect the continuance of the pharmacy under its existing permit. Something more is required to bring the permits into conflict. It is reliance on a new permit that causes the situation to change as regards an existing permit. As all parties agreed, inconsistent permits cannot be relied on simultaneously. What follows from that, however, in my view is the result contended for by Mr Testro and Mr Stewart. The consequence is not amendment of the pharmacy permit by a later permit affecting part of the site to which it relates.

79. The point at which inconsistency takes effect so as to alter the legal effect or status of the inconsistent permits (or one of them) would appear to depend on the facts of each case, and the particular terms of the permits and their conditions. Reliance on one of the medical centre permits would appear to occur when development or use of the medical centre (in either form) commenced, as the operator would then have to accept the obligation to develop and use in accordance with the conditions of the permit in accordance with the plans as endorsed. As buildings and works are required, all land included in the permit for the use as "medical centre" would take on that character when development for that purpose commenced.

80. Assuming a permit was to be issued in the terms of either Notice of Decision, compliance with the condition requiring an agreement for use and changes to the parking layout at 67-69 Union Road to be entered into may be the earliest date at which direct conflict between the permits occurred, as it may precede commencement of any development.

81. The conditions of the Notices of Decision require the area set aside for parking to be provided and completed prior to the commencement of use of the medical centre, so that works under the medical centre permit would have to precede commencement of use. The date at which the rear of 67-69 Union Road was committed to the medical centre use could not be later than when works commenced to change the car park layout to the layout approved under either medical centre permit, although it may be earlier if building work is first done at 71 Union Road.

82. Even though it could be argued that by issuing a permit in either application, the responsible authority had approved a change of layout of the pharmacy site, thus meeting Condition 2 of Permit no. ES-4623, Condition 4 is quite specific about the area set aside for parking and associated access lanes being provided "as delineated on the endorsed plans". I do not regard approval and endorsement of a plan under one permit as automatically amending a plan endorsed under another permit. One of the basics in the use of the various amendment powers, it seems to me, is that the subject of the application for amendment has to be identified as a permit, or an endorsed plan, for which an amendment is sought. Permit amendment results from specific applications; it does not happen unsought as a matter incidental to the issue of a permit for other land.

83. Mr Stewart correctly described the ultimate consequences of changing the car park layout, although he submitted that the effect on Permit no. ES-4623 operated from the grant of a permit for the reconfigured car park. In my view, as the endorsement of plans under the proposed new permits would not automatically amend the endorsed plans under this permit, the pharmacy's conditions would be breached once the approved layout was interfered with in order to lay out the new car park in accordance with one of the possible new permits, or when the owner of the pharmacy site entered into an agreement to make alterations and allow other use of its car park, rather than from date of issue of the permit.

84. I do not entirely accept Mr Testro's submission that as a matter of law, a later permit cannot amendment an earlier permit. In John Paul College v City of Frankston, which was decided while the powers of permit amendment contained in the Planning and Environment Act 1987 were relatively new, the applicant was trying to extend the hours of operation limited in its permit conditions. The condition itself contained a reference to approval for different hours being obtained. There was no need for a permit either for the use or for the extended hours of operation under the Planning Scheme. The Administrative Appeals Tribunal held that procedure of seeking a new permit only for extended hours as a device to amend a condition in the existing permit was unavailable because no permit was actually needed for the use. Both the condition and the attempt at amending it were misconceived. But the Tribunal went on to state generally that an amendment to an existing permit "cannot be obtained by a planning permit application". Instead, the powers in Sections 73 or 87 should be used.

85. Both these specific powers of amendment are subject to a number of statutory limitations. They are not always available, for a variety of reasons that may have little to do with the merits of an application to amend. The possibility of a new permit application may remain open to enable a permitted development and use, and conditions of use, to be reviewed and modified under current conditions and Planning Scheme requirements. It is a limited possibility, in that it would in practice only be open to the owner of the land or someone acting with the consent of the owner.

86. The practice of applying for a fresh permit to replace a current permit which contains some limitation that is no longer considered acceptable was given countenance by the Supreme Court, and it is still going on despite the express powers of amendment which are now available. A fresh permit for a use containing a variation of the existing permitted use was suggested as an alternative to the use of the amendment powers to get rid of an unwanted limitation in the case of Clemente v Shire of Yarra Ranges (Appeal no.1995/29159 decided by the Administrative Appeals Tribunal, 10 April 1996, unreported) to which Mr Hooper referred in support of his submission that the entire pharmacy site should be included in an application for a "replacement permit". There is of course no present application for a "replacement permit" for the pharmacy use, which would have had to include the front of 67-69 Union Road.

87. However, while there is no such application at present, I accept that an application for the entire pharmacy site, or the combined site, while Permit no. ES-4623 still exists, is a possibility. Nor does Mr Testro deny the possibility of a "replacement permit".

88. Gobbo J considered the powers available to modify a development under a permit with a condition that there be no change to the layout without the Council's consent, in City of Brighton v Eura Nominees Pty Ltd (1983) 56 LGRA 262. This was prior to the introduction of the present amendment powers, when there was a limited variation power in Section 24 of the old Town and Country Planning Act 1961. He held (at 271) that:

"Where there is an existing permit and an owner or occupier or interested persons seeks to bring about an improved development, it would appear to be open to such person to apply on a basis that brought about a wholly new permit for the site in question. In that event, on its proper construction, the second application involves a replacement permit for the site and is not really a mere alteration of an existing permit. No conflict would appear to arise because the second application and the second permit proceeds on the basis of a permit for a new development. Nor does it purport to seek a variation of an earlier permit."

89. His Honour also addressed "uncertainty about the proper method of securing a variation of an existing permit", commenting (at 272):

"The device of a new application for the whole development would seem to be very inconvenient when all that is sought is a modification of one permit condition that has been found to be incapable of operating effectively. It would seem desirable to consider legislative change ... with appropriate safeguards to protect the rights of objectors in prior hearings."

90. Although this might be inconvenient, it was not found to be an invalid procedure. Parliament has acted on the suggestion for legislative change by incorporating the provisions which commence at Section 87 of the Act, but it has not expressly put an end to other ways of seeking what is in effect an amendment, even though a full scale application under Section 47, exposing the proposal to the full range of notification procedures and current Planning Scheme requirements, is actually made. It has not been suggested by the parties that the "replacement permit" option has been closed by the Act. Whether a form of amendment by later permit short of total replacement is still possible is an issue that does not have to be determined in these proceedings. I would not seek to interpret the express powers so as to narrow the range of options available, especially as the new permit procedure encompasses the giving of notice and rights for third parties to both lodge objections and participate as parties to review proceedings. But even if it is possible that a new permit granted over part of land which is subject to an existing permit, or dealing with one aspect of use permitted by an earlier permit, may amend the earlier permit, it certainly does not necessarily follow that a later permit automatically amends the earlier permit, especially in the absence of an application expressly seeking that result.

91. It would be quite usual for a replacement permit to contain a condition requiring cancellation of the earlier permit under Section 62(2)(b) of the Act, as suggested by both Mr Stewart and Mr Testro, so that inconsistencies between the terms of the old and new permits do not cause confusion.

92. Mr Stewart submitted that applications nos. MV/10674 and MV/11067 were not "a matter of seeking permission to alter the basis of Planning Permit No.ES-4623 by rearranging" the pharmacy car park He argued that the permission sought was to provide parking spaces in conjunction with the use of adjoining land; that is, a change in the nature of the parking use was sought in relation to a proposed new separate use, not as an alteration to the pharmacy permit. However, neither permit application seeks the use of the pharmacy car park as it presently exists. Both require works to be carried out to alter it. I consider that more than "use in conjunction" is involved.

93. There is a difference between Notice of Decision MV/10674 and MV/11067 in that although neither includes 67-69 Union Road in the description of the land to which it relates, in the case of the permit application no. MV/11067, the car park area was expressly included as part of the subject land. It was not merely included by way of description in the accompanying report about the parking proposal and availability of parking. It could be argued that there has been a failure by the Council to determine the application with respect to the rear of 67-69 Union Road. But neither Notice of Decision names any part of the pharmacy site as its subject, and I accept the submissions of both Mr Testro and Mr Stewart that in neither case would a permit in the form of the Notice of Decision result in amendment of the pharmacy permit.

94. Permit ES-4623 would not be amended by the issue of a permit in accordance with the Notice of Decision in either permit application. Permit applications nos. MV/10674 and MV/11067 therefore cannot be invalid because they would amend Permit no. ES-4623 otherwise than by application made to the Council under Section 73 or Section 62(3) of the Act, or by making an application for a new permit including the whole of 69 Union Road, or by application to the Tribunal under Section 87 of the Act.

95. I therefore consider that the case for the first two declarations sought has not been made out.

96. So far from the new permits amending Permit no. ES-4623, they would create a problem of compliance under it. That problem could be met in a number of ways, as Mr Testro and Mr Stewart have variously suggested.

97. With regard to the third declaration, the permit applicant recognises that the pharmacy use could not lawfully continue once the layout of the car park was changed to accord with a permit issued in either application no. MV/10674 or MV/11067. He will have a choice whether to seek amendment to Permit no. ES-4623 or the endorsed plans under it, apply for a replacement permit, or give up the pharmacy use. It is not necessary to amend the pharmacy permit before a permit could be issued in either application no. MV/10674 or MV/11067. The point at which potential conflict with Permit no. ES-4623 arises is when the permit applicant commences to rely on one of the new permits. Neither of the permits as applied for allows the pharmacy use to continue without some further action being taken with respect to Permit no. ES-4623, once building, works or use commences in reliance on a medical centre permit.

98. I therefore consider it unnecessary to make a declaration that 69 Union Road "may only be lawfully used for the purposes of a car park pursuant to Planning Permit no. ES-4623 issued on 31 August 1987 in conjunction with the permitted use thereof as a pharmacy and/or pursuant to any amendment thereof made pursuant to Section 87 of the Planning and Environment Act 1987." The wording is too wide. It does not allow for the possibility that another permit may be issued for "69 Union Road". There are problems with the address, as referred to above. The wording of the declaration sought does not reflect the range of choices offered to the owner for addressing the problem created for Permit no. ES-4623 even by the Applicant's own analysis of available powers which might be used with respect to the pharmacy site. There is no threat to continue the use unlawfully, or need to clarify the owner's obligations regarding continuance of the pharmacy.

99. I do not consider that any alternative declaration is appropriate in the circumstances.

100. Mr Hooper also argued that the whole area on which it is proposed to locate parking spaces associated with the proposed use of either 71 Union Road, or 71-73 Union Road, as a medical centre must be included in the permit application. An amendment was imperative to "save" the permit applications, but there was no power to do it, and the Tribunal was left without jurisdiction. The basis for the argument is drawn from Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council & Ors [1980] HCA 1; [1980] 145 CLR 485. Mr Hooper submits that the rear of 67-69 Union Road has to be included in the application, because the car parking is an "integral part of the use", and indeed the parking arrangement in permit application no. MV/10674 requires part of 69 Union Ropad for access to its parking.

101. Under the Pioneer Concrete case, "piecemeal applications" are held to be invalid. It may well be that it was with the Pioneer Concrete decision in mind that permit application no. MV/11067 was drafted. The permit application in that instance does include the car park land, save for any balance which has to be found beyond the boundaries of 67-73 Union Road in order to satisfy the Tribunal that sufficient parking is available in the locality for the purposes of the discretion to reduce parking below the standard requirement.

102. Mr Hooper also argued that the omission of the pharmacy from the applications precluded the Tribunal from assessing the demand for parking generated by the pharmacy, and especially its peak usage periods, when considering the availability of the car park land for use by the medical centre. This was said to be a critical factor governing the adequacy of the car parking provision proposed in the permit applications. "Downstream effects" from piecemeal applications, including prejudgment of subsequent applications for what were really essential parts of an already permitted use, were one of the justifications for the Pioneer Concrete decision that piecemeal applications impeded proper consideration of the whole project (see p.504).

103. I see no reason why the actual usage of the existing car park and other parking in the area associated with the pharmacy use, and the peak hours of the pharmacy, should not be established by evidence including surveys in the usual way. Both pharmacy and medical centre demand would be expected to be the subject of evidence to establish the degree of competing demand for spaces and the means of satisfying the demand. I do not consider that the omission of the pharmacy from the applications prejudices the establishment in its car parking needs by evidence.

104. However, leaving aside that aspect of the argument, it is well established by Pioneer Concrete that (quoting from the leading judgment of Stephen J at 500):

"where ... the use proposed is a single use, no piecemeal series of applications is permissible, at least under the City of Brisbane's town planning measures; instead, the use must be stated in appropriate detail in one application and all the land involved in the use must be the subject of the application."

105. The result in Pioneer Concrete was that the permit application was found to be defective because it did not include, along with the extractive industry site proposed, the new access road that had to be built across private land to join into the public road system. The route to be taken by quarry trucks was considered to be a significant issue for local amenity, and the construction of a new route was an integral part of the activity for which the permit was sought. Both the extraction and processing of quarry products and the construction of the road were part of the one use proposed, and both should have been included in the application.

106. His Honour started with the principle that the system of land use control uses two critical integers, land and use. Each involves a question of definition, and the application has to specify what land and which use. His Honour considered that the integer of use will dictate the precise identity and extent of the land which should be included in the application. Where the permit applicant had gone wrong in that case was in failing to identify that the construction of a new road over land lying between the quarry site and the road system made it part of the land which was to be devoted to the proposed use (see p. 501).

107. In the case of one issue, Stephen J agreed with Gibbs J, who delivered the leading minority judgment. That was that there was no defect in the application (and notification of it) resulting from the failure to show the buffer area in it (see p.509). The reasoning, with which Stephen J expressly agreed, was that "the appellant did not seek consent to provide a buffer area; it was imposed as a condition by the Court".

108. Mr Hooper lastly submitted that the notice published in the case of both permit applications was defective for two reasons in each case. Both failed to disclose the proposed inclusion of the rear of 67-69 Union Road as part of the land for which a permit was sought; and both also failed to disclose the proposed changes to the layout and use of the pharmacy parking area. Mr Hooper submitted that as a result, the responsible authority had no jurisdiction to proceed to consider the applications. He accepted that this was a curable defect; and that deficiencies in notice could be remedied.

109. While I have accepted the arguments of Messrs Testro and Stewart that permits issued in applications nos. MV/10674 or MV/11067 would not amend Permit no. ES-4623, I also accept Mr Hooper's submission that the permit applicant in each application clearly wanted the pharmacy use to continue, so that both pharmacy and medical centre operated as complementary uses, sharing a common parking area which was spread across the all the sites included in each application.

110. Mr Hooper argued that an application to use the pharmacy car park to provide parking for the medical centre constitutes the parking area at 67-69 Union Road a commercial "car park", being a separate, defined use for which permission has not been sought.

111. I accept that if a permit were issued and acted upon for the use of the pharmacy parking area as a "car park", without also dealing with the balance of the pharmacy site, a breach of Permit no. ES-4623 would occur if the pharmacy use continued, because the conditions of that use would no longer be met. The use of the whole site would no longer be "pharmacy" under that permit, the endorsed plans would not be adhered to, and Condition 4, dealing with the car park, and probably also Condition 2, dealing with the site layout, would also be breached by an altered layout, as previously discussed.

112. The Tribunal has not been requested by the permit applicant to amend either application so as to include the whole of the pharmacy site. Mr Testro's submission was that the rear only of the pharmacy site was included as part of the "planning unit" in the medical centre application in each instance, with the provision of parking being ancillary or incidental to the medical centre use.

113. Mr Testro submitted that the rear of the pharmacy site could be the subject of a permit for the purpose of "car park", instead of being an ancillary use associated with either the pharmacy or the medical centre, (and could have been the subject of a permit for use as a "commercial vehicle park" under the old Planning Scheme); but he did not seek to amend the application to include that element as a separate use.

114. In reply to Mr Hooper's submission as to the alleged necessity of including the proposed car parking for the medical centre in the permit application, Mr Testro argued that it is unnecessary to identify all land available to satisfy parking requirements at the time the permit application is made.

115. The "piecemeal applications" and "combined use" arguments, and the issue of adequacy of notice, all involve the special nature of car parking. It is proposed by a permit applicant, but it is also required. Often the applicant wishes to provide parking as a matter of good business; but whether it wants to or not, the Planning Scheme requires that it should do so. The requirements include a considerable degree of flexibility as to where and how this is done.

116. Clause 52.06-1 of the Planning Scheme deals with the car parking requirements for specified uses. The basic requirement is defined by the table at Clause 52.06-6, which sets out the number of car spaces required according to the use of land. The requirement for car spaces for a use listed in column 1 of the table is the product of columns 2 and 3 of the table. "Medical centre" is a use listed in Column 1.

"A use must not commence ................... until the required car spaces have been provided on the land.

A permit may be granted to reduce the number of car spaces required or to waive the requirement."

118. Guidelines for the exercise of the discretion created by the last paragraph are set out in the Clause. The number of spaces that are to be required on the land may be reduced or waived.

119. The parking proposed in relation to permit application no. MV/10674 is all for land in the ownership of the permit applicant. Ignoring the applicant's proposal for joint use of the space on the pharmacy centre site to be shared by the medical centre use (which would require further approval), the layout proposed requires permission for a reduction, based on parking on nearby public land or otherwise, to make up for the shortfall in the standard requirement of 5 spaces per practitioner under Clause 52.06.

120. Before a requirement for car spaces is reduced or waived, the applicant must satisfy the responsible authority that the reduced provision is justified due to (omitting references to parking precinct plans and other matters not relevant for immediate purposes):

· The availability of car parking in the locality.

· Any reduction in car parking demand due to the sharing of car spaces by multiple uses, either because of variation of car parking demand over time or because of efficiencies gained from the consolidation of shared car parking spaces.

· Any car parking deficiency or surplus associated with the existing use of the land.

121. Is it necessary to show, as part of the application, all the land to be taken into account as parking spaces available in the locality, or on which there is parking which can be consolidated and shared due to reduction in demand or efficiencies gained by sharing?

122. More is required than simple identification of land available for parking. Under Clause 32.01-5:

"A permit is required to construct a building or construct or carry out works for a use in Section 2 of Clause 32.01-1."

123. The works required to be carried out for the car park proposed for the medical centre use therefore require a permit, if there is not already a permit which authorises the parking, whatever land the car park is located on. The car park area at the rear of 67-69 Union Road requires construction work to be carried out to convert it to the layout shown in either permit application. Application no. MV/11067 properly shows the parking area that is proposed to be provided on land identified for that purpose, including it within the definition of the land which is the subject of the application.

124. The sharing of car parking spaces by different uses under different permits does present a theoretical problem of proper characterisation of the use of the space used in common, at least on private land where neither use is "as of right". However, the explicit recognition of "sharing of car spaces by multiple uses" as a matter relevant to the exercise of discretion for the purpose of Clause 52.06-1 means, in my view, that an answer has to be found that enables the purpose of this provision to function. If parking is available for shared uses which generate complementary demands, it would surely not have been intended that the characterisation of the uses for which the parking is to be provided in common should get in the way of this desired result being achieved. That would restrict the sharing of spaces to public areas, or land dedicated to "car park" as a separate use, which will often mean having a separate permit. Parking areas are valuable space that should be fully utilised as a matter of good planning, and Clause 52.06-1 recognises this.

125. In the Residential 1 zone, land can only be permitted as a "car park" if is it to be used in conjunction with another use in Section 1 or Section 2 of the table of uses, by a condition placed on the car park use in Section 2. An independent "car park" is impossible. The first possibility that presents itself is that the usual rule of interpretation by which the singular includes the plural could be applied so that the car park area could be used in conjunction with more than one Section 1 or Section 2 uses. But the parking in issue here is not the subject of a permit application for the use "car park"; it is ancillary parking proposed for the medical centre. What happens to the characterisation of a common parking area on private land where the permit application proposes that it be shared between different Section 2 (permit required) uses is a question that will have to wait for another day.

126. Mr Testro relied on a series of recent decisions to establish the relevant principles. These were Uniting Church in Australia Property Trust (Vic) & Ors v Moreland City Council (1996) 16 AATR 250, Returned Services League of Australia (Victorian Branch) Inc, Glenroy Sub-Branch v Moreland City Council & The Carlton Cricket & Football Social Club Limited (1997) 19 AATR 107, Vegas Nominees Pty Ltd v Werribee City Council (1994) 14 AATR 73 and Eddy v Knox City Council (Appeal no. 1996/9073, decided 11/9/96, unreported).

127. The leading case is Returned Services League of Australia (Victorian Branch) Inc, Glenroy Sub-Branch v Moreland City Council & The Carlton Cricket & Football Social Club Limited ("the RSL case") which is a decision of the Court of Appeal. The decision reported at 16 AATR 250 is the Tribunal decision which was the subject of the Court of Appeal's consideration. The permit applicant had argued that a permit for the use of the subject land for gaming had been made, and the relevant planning unit was properly identified as the subject land; that the parking reduction that had also been sought would also relate to the subject land; and that it was realised that no reduction would be granted unless adequate parking was provided by one means or another. It was open to the Tribunal to grant a permit specifying the number of spaces that would be required, and leave it up to the permit applicant to find the space to put it. The degree of specificity was another issue which it is unnecessary to go into. The Tribunal had accepted this argument.

128. The opposing argument, which was pursued at the appeal, was that it was not permissible for the permit applicant to propose to satisfy car-parking requirements by making arrangements on land other than the subject land, by virtue of the Pioneer Concrete decision.

129. At that time, the possibility of a reduction or waiver of required parking being permitted if parking was available on nearby land existed under the relevant Planning Scheme, although the parking provisions were somewhat different to the present provisions.

130. The Court of Appeal unanimously found (at 118-119) that it was unnecessary for all the parking to be provided on land which was the subject of a permit application. The whole tenor of the relevant provision was found to be to the contrary of that contention. It was recognised that the parking provisions in the Planning Scheme made it plain that parking could be provided on or off the subject land, on the street, or on "nearby land", or dispensed with altogether. Although the Court was prepared to assume, without deciding, that the principle considered in the Pioneer Concrete decision applied in Victoria, the Court did not consider that the application, which did not include all land on which parking was proposed to occur, was properly seen as one of several applications advanced in a piecemeal fashion. Rather, the Court considered that the use of land other than the land included in the application:

".......... would require separate application for a permit if use for that purpose is not now permitted. Under the Tribunal's direction, use of the premises as a gaming venue could not begin until the necessary parking arrangements were made and thus, if permits are needed for use of the land on which the parking is to be provided, use of the premises cannot begin until those permits are obtained. But for the reasons I have given, I am not persuaded that the Tribunal is bound to refuse the application until applications for permission to park on the other two pieces of land have been pursued."

131. A similar argument had been put, also by Mr Hooper, in Vegas Nominees Pty Ltd v Werribee City Council. In that case, the Supreme Court (Ashley J ) referred to the material supporting a permit application, which relied on the availability of vacant land nearby as a site for public parking, and rejected the submission that the applicant should have included this land in the application. His Honour continued (at 80):

"If Mr Hooper's submission was correct, than each time that an applicant for a permit sought to have a provision for car parking required by this or a similar Scheme waived or reduced by reliance upon availability of public parking, it would be required to include in its application the land upon which the public parking was established. That could not be so. The fact that a formalised car park was not established on the vacant land at the time when the Tribunal heard and determined the matter, and that a permit was or might have been required before a public car park could be constructed there, should not result in a different outcome. Any application for a permit must have been made by the Authority to itself. No question of an application by the Club was involved.

What the Tribunal did, by Condition 3, was to require that a certain factual situation should exist before a permit would be granted to the Club. That situation, external to the land comprised in the Club's application, would be a basis for waiver of the requirements for car parking either imposed by the Scheme or appropriate by reason of proper planning considerations. ......... In neither event is the principle in Pioneer breached if the external land upon which the work is to be performed is not included in the application."

132. Mr Hooper sought to distinguish these cases from the present proceedings on the basis that they applied to applications where the external parking was to be provided on other land, not being land of the applicant; but that if you wish to obtain a permit for provision of parking on your own land, you have to include it in the permit application. The context is provision of ancillary parking for a particular use, requiring construction works. In neither of the applications in these cases is the proposed parking simply and exclusively a matter of making use of existing spaces available elsewhere, such as on the street.

133. A relevant distinction was pointed up in Geelong Regional Commission v City of Geelong (1989) 2 AATR 304, where the Administrative Appeals Tribunal considered two arguments as to invalidity under the Pioneer Concrete case, based on the exclusion from the permit application of a public car park which was to provide parking for the proposed use, and a pedestrian link which was proposed to be constructed above the intervening street between the public car park and the proposed development to provide access to it from the car park. In the case of the pedestrian link, Deputy President Barton found that it should have been included in the application. But he did not find that the car park should have been included. He expressed himself convinced ( at 315) by the argument that it was not necessary to provide actual parking, instead of cash in lieu in the case of the car park; that customers had other choices as regards transport to the subject land, which included parking in the street; and also that the car park was open to the public at large, and not just to customers of this proposed development. These are the sort of considerations which can affect the exercise of discretion to reduce the parking requirement under the current Planning Scheme.

134. Mr Barton also (at 317) rejected an argument by Mr Wright QC that "Section 54 was not available to cure invalidity" of a permit application. Section 54 was the power at that time contained in the Planning Appeals Act to waive a failure of compliance with an Act. He further found (at p.319) that although the application was invalid by reason of omission of the pedestrian link, if an appeal against the Council's failure to reach a valid decision was lodged, Section 53 (the power to amend a permit application) would be available to remedy the defect.

135. The fact situation in the present instances is somewhat different from the facts in the cases referred to above. The two permit applications raise different car parking issues, but in one respect they are the same. The plans submitted with the applications both show dedication of space on privately owned land, and works proposed to be carried out, by way of provision of parking. In the first application, however, some of the works are outside the land identified in the permit application form as the subject land; while in the second application, they are totally within the land identified as the subject land (the land being differently defined).

136. Application for Review no. 1999/18178 (permit application no. MV/10674)

137. It is the permit applicant himself who has included as an integral part of permit application no. MV/10674 parking that is outside the boundaries of the land which the permit application defines as the subject land. I agree with Mr Hooper that this is a relevant distinction between the present cases and the authorities referred to above.

138. The parking proposed in permit application no. MV/10674 is fairly evenly divided between works within and works external to the subject land. It would be possible for 8 spaces to be permitted on the subject land, but not the access lane which serves them. The access lane straddles the property boundary. In practical terms, the parking and access layout cannot be permitted as shown on the application plan, without including that part of the access that is on 67-69 Union Road.

139. Mr Testro submitted that the permit application consists not only of the application form, but also of the annexures, plans, accompanying documents, covering letters etc, under Semple v Shire of Kilmore (1989) 11 AATR 278. In that case, Crockett J (following Marock Pty Ltd v Billjoy Pty Ltd [1981] VicRp 41; [1981] VR 413) construed a permit application as including the form and explanatory letters. It is not apparent that there was any contradiction regarding the identity of the land for which a permit was sought as between the documents. The doubt was about the depth to which the application sought to go in extracting quarry material, not the site on which it was proposed that material be extracted.

140. While I accept that in construing a permit application, it should not be treated technically or strictly like a statute or deed, and the question is what the application would fairly convey to those for whose information is required to be prepared (including objectors) these principles do not assist where the application form identifies the subject land, and some of the accompanying documents include other land. The application form in no. MV/10674 is unambiguous. The form provides a box to be completed with the following information: "THE LAND: Give the address and title particulars of the land, and attach a sketch plan". The only information provided in the box is "71 Union Road, Ascot Vale". The application plan identifies its subject as "Proposed medical centre at 71 Union Road". It is only the letter accompanying the application that includes both "Proposed medical centre at 71 Union Road and Rearranged Car park at rear of 67, 69 and 71 Union Road, Ascot Vale".

141. Given the very clear instruction in the application form to identify the subject land, it seems to me that the people for whose information the completion of these details is required would consider the subject land to be 71 Union Road. A cross check to the application plans would confirm this as the address. The responsible authority certainly treated it as the only land included in the application, both in the notice requirement under Section 52 of the Act and in the Notice of Decision. The inclusion of other land on the plans themselves is confined to the parking layout plan. The letter accompanying the application explains the proposal to use the existing car park at the rear of the pharmacy, making it clear that once the parking has been "rearranged", combined use with the pharmacy parking is intended.

142. I accept that it is unnecessary for the permit applicant to show every piece of land on which it is proposed that parking should be provided in association with a proposal as part of the application for the proposed use and development; but if the permit application does include a parking area and details of spaces, access lanes and so on, on a defined property part of which is on the subject land and the balance is in the same ownership, and the application invites the responsible authority to rely on that parking being made available in its assessment of the application, it seems to me that the parking is a proper part of the application. It should be identified as part of the land included in the application.

143. Although the permit applicant did not have to include parking on the rear of the pharmacy site in the application for a medical centre on 71 Union Road, he included a parking proposal in both the accompanying letter and on the car parking layout plan that did do so; and more than that, the parking was so laid out as to rely on an access lane which crossed the boundary of the pharmacy site. The car parking area should have been included in the application both because its availability was relied on, and a permit for the "rearranging" works was needed as part of the required permissions for the proposal.

144. The degree of detail with which the parking layout was specified both on the subject land and over the boundary into the rear of the pharmacy site, the calculation of the spaces that would be provided for the two uses, the need to satisfy the responsible authority as to the adequacy of the parking provided for the purpose of Clause 52.06, and the need for a permit to carry out construction works for the car park, all point to the intention being that the parking shown on the parking layout plan and described in the applicant's letter was intended to be relied on by the responsible authority and anyone else who had an interest and inspected the application. The applicant must have expected that any permit to issue would have applied to the whole of 71 Union Road (including the area laid out for parking on the plans), and that included in the permit would be conditions requiring continued compliance with the parking layout plan and other usual car park conditions. The permit applicant would have been surprised if the Council had responded to this application: "you may have your permit for the medical centre on the front of the subject land, but now you must make a new application for the parking shown at the rear of both 71 Union Road and 67-69 Union Road." It seems to me, however, that if the parking proposal is not treated as an integral part of the permit application, that must be the result of it.

145. The responsible authority needs to know how much ancillary parking is proposed to be provided by the applicant on the subject land, and in what manner, for the purpose of making a decision as to whether a permit should be granted for a reduction in the requirement under Clause 52.06-1. The terms of Condition 1 of the Notice of Decision make it plain that the Council has relied on this parking layout. It refers to the "rear parking area hereby approved". It further requires (by Condition 4) that the area set aside for parking of vehicles and access lanes on the endorsed plan shall be provided. No further approval for the car parking is envisaged as far as the medical centre use is concerned.

146. It follows that there was a defect in permit application no.MV/10674, although not in permit application no. MV/11067. Application no. MV/11067 did include the rear of the pharmacy site in the subject land, specifying that the proposed use of all three sites included in it was as "medical centre".

147. Mr Stewart submitted that the applications could be amended to exclude reference to 67-69 Union Road, rather than include the rear of the pharmacy site as part of the site of a proposed medical centre. He acknowledged that this would require some changes to the layout in order to allow the pharmacy car park to be considered as "other land" which would be available for parking so as to justify a reduction of on-site parking. I consider this undesirable and unnecessary; and it is not a form of amendment that has been in any way foreshadowed by the permit applicant.

148. Mr Testro submitted that if a defect were to be found in the application, the Application for Review should be adjourned to enable the permit applicant to seek to remedy it if he saw fit to do so.

149. The notice given in both cases omitted reference to 67-69 Union Road. Whether that made the notice that was given inadequate, given that the defect relates only to the proposed changes to the car parking layout and number of spaces, but not to any proposed change to the use of the pharmacy or amendment of the pharmacy permit, is also in issue.

150. Taking the view that I do of the proper construction of permit application no.MV/10674, I consider that the notice shares the defect of the application, although of course it could not have included the whole of the subject land when the application itself did not. I do not consider that any person suffered as a result of this defect in the notice of the application. The owners of the adjoining land are parties to these proceedings. The tenant of the pharmacy has since been given notice of these proceedings at the direction of the Tribunal, so has had the opportunity to join in the proceedings if he wished to do so.

151. The effect that this defect in the notice might have had is a matter of the difference between notice of a proposed medical centre at 71 Union Road, and notice of the same application including explicit reference to a proposal to change the layout of the car park at the rear of the pharmacy premises and use it for parking ancillary to the medical centre. This distinction seems to me to have very limited possibilities in terms of who may be detrimentally affected. The number of car spaces and whether there is adequate provision seems to me to be more relevant in terms of possible detriment than the use of the rear of the pharmacy site as a matter of changed layout, given the location and relationships of other properties around the subject land. Anyone concerned about inadequate parking would have seen the proposal when they inspected the application file at the Council, as the text of the notices invited them to do.

152. That leaves a defect in the permit application which in my view exists without having led to any detriment to anyone who might have been affected by it.

153. A good deal of time was taken up in this proceedings by arguments by Mr Hooper, and Mr Testro in replying to them, based on the Tribunal's powers to amend applications and waive defects. As I have not so far been asked by the permit applicant to make an amendment to this application, or waive the defect, I will not do so. I will comment, however, that the legislative environment in which Mr Hooper's argument as to jurisdiction is raised is considerably removed from the context within which R v Justices at Carlton was decided. Indeed, Parliament appears to have gone to some lengths to ensure that the wish of parties to bring Applications for review of Council decisions on permit applications to the Tribunal is not thwarted by defects in the applications or other procedural matters. The legislation dealing with the jurisdiction of the Tribunal in planning enactments appears to me to be intended to allow the Tribunal to function, rather than to give rise to arguments over jurisdiction.

154. I consider that there is wide statutory power and also authority for the existence of jurisdiction to deal with defects which in a court or before Tribunals in earlier days would have been fatal: see e.g. Kantor v Murrindindi Shire Council (1997) 18 AATR 285, where Ashley J referred with approval (at 294) to the expedient course adopted by the Tribunal in D & M Pekelman Pty Ltd v City of Melbourne (1990) 4 AATR 246, and Castik Investments Pty Ltd v City of Stonnington (1999) 3 VPR 46. The decision in Cook v Melbourne City Council (1998) 1 VPR 41 does not exclude the possibility of amendment of defects in appropriate cases under the statutory powers available with respect to the relevant Application, although in that case, in the exercise of its discretion, the Tribunal declared the defective Notice of Decision issued by the responsible authority to be void. The defects in question in that case did not arise from any action of the permit applicant or defect in the application; the responsible authority had issued a form of Notice of Decision which omitted the information about appeal rights required by the relevant Regulations to be provided as part of the Notice. The defect could not be remedied by amendment or further notice, because a permit had since been issued. The reason for the approach taken was further explained in Castik Investments.

155. I will go further into the scheme of legislation and the authorities if the permit applicant applies for an amendment or waiver, and the parties call on me to do so. At present, it is unnecessary.

156. As it is by no means certain that the permit applicant would wish to apply for a waiver of this one defect, I consider that the appropriate course is to give the permit applicant liberty to apply in relation to this Application, before I make a final order with respect to it. If the matter has not been otherwise dealt with by the time Application for Review no. 1999/60317 comes on for hearing, the Applicant will have the opportunity to seek a final order at that time.

157. I should add that I have reached the decision that the permit applicant should have an opportunity to seek amendment so as to include the rear of 67-69 Union Road in this permit application somewhat reluctantly. Where the case of the permit applicant has been firmly based on the absence of an application to amend, to allow the other parties to run this lengthy legal argument denying that amendment has been sought, and then to turn round and seek amendment, seems to me to put the Applicant to some unnecessary duplication of procedures. But the nature of the amendment sought would not make this an application to amend Permit no. ES-4623; and it would have the added benefit of achieving consistency between all the application documents in this permit application, without needing further advertising. If the permit applicant wished to pursue this option, it would need minimal additional hearing time, as Mr Hooper has already put the case against amendment comprehensively in the context of the pharmacy permit argument, and Mr Testro has responded to it. Council is not opposed to this course being taken.

158. By referring specifically to the possibility of amendment to overcome one specific defect, I do not mean to deny the opportunity to seek to overcome other defects such as the failure of the Council to determine the application for use as well as development of 71 Union Road, which is apparent from the Notice of Decision in MV/10674.

159. The land contained in application no. MV/11067 was not fully described in the notice given under Section 52 of the Act. But notice of this application was given quite widely. There is no doubt that Dr Bretherton (as owner of the corner site) was fully aware of the proposals. The tenant of the pharmacy site was given notice of these proceedings at the direction of the Tribunal. The persons who may be considered to be potentially most affected by the inclusion of 73 Union Road in the application would be the owner and occupier of the property next door to the north, which should be 75 Union Road. The Council officer's report states that notice was given "by mail to surrounding owners/occupiers", as well as by display of a public notice along the street frontage. The Council's list of objectors does not show any objection from 75 Union Road, although there are three objections from 73 Union Road itself. The owner may have objected from a different address.

160. The notice that was given did include reference to 73 as well as 71 Union Road, so that clear warning of proposed changes next door would have been conveyed to the persons with interests in 75 Union Road. But they are sufficiently removed from the existing car park at the rear of 67-69 Union Road to be unaffected by internal changes within that site, of which no warning would be given by the notice of this application.

161. The lion's share of the parking as proposed in this application to be located on 73 Union Road. The alterations in the layout proposed at the rear of the pharmacy site are, in my view, minor, and unlikely to cause any detriment to anyone.

162. The issue of the continuing use of the pharmacy, it will be recalled, is not a part of either of these permit applications. Any detriment that may arise from continued use and shortfall of parking arising from combined use will have to be the subject of further applications, for which the question of notice will have to be considered afresh.

163. I do not regard the notice given as being deficient under Section 52 of the Act so as to cause any person who was entitled to be notified of the application to be deprived of proper notice of it.

164. In any event, the Tribunal gave notice to all objectors in relation to both Applications for Review, in addition to the notice of proceedings given by the Applicant. This was intended to overcome inadequacies in the instructions originally given as to what steps were available to a person who wished to take part in the proceedings. This notice referred to the proposal to use the rear of the "chemist shop" for parking in the case of both applications. It also set out in some detail the steps to be taken if the recipient wished to become a party to the proceedings. No further parties emerged. Mr Rodriguez, the only other objector party beside the Applicant, has not taken part in the legal argument.

165. I therefore conclude that application no. MV/11067 is not invalidated by reason of defective notice, and that the notice previously given is not so defective as to require any further notice to be given. Sufficient notice of the application has been given to the owners and occupiers of land adjoining the subject land, and to owners and occupiers of other land to whom material detriment may reasonably be considered to be caused by the grant of a permit.

166. The failure of the permit applicant to either obtain the signature of the owner or to sign the certificate stating that the owner had been informed of the application in the case of the owner of 73 Union Road is a defect that I regard as capable of being disregarded in appropriate circumstances. Mr Testro referred to the purpose of Section 48 of the Act, as tentatively explained in Shire of Mount Alexander v Ariss [1997] VCAT 160; (1997) 18 AATR 247 at 256. The only harm envisaged from failure to inform the owner of the making of an application for use or development of his land was that if the owner did not wish to have the use or development take place, and did not know the application had been made, the Council and objectors would waste time and effort over a futile application which the owner would have stopped.

167. No harm to the Applicant has been alleged to arise from this defect.

168. The defect in this case is made trivial by the fact that Mr Brennan, who did sign, is a director of the owner company in the case of 73 Union Road, as well as owner of the other land included in the application. If the company's ownership had been disclosed on the form, it may well have been Mr Brennan as director who signed on its behalf.

169. Under Clause 62 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act, I determine to disregard the failure of Mr Brennan to certify that he had advised Firstline Assets Pty Ltd of this application. I consider it is in the interests of justice to do so.

170. The hearing of Application for Review no. 1999/60317 (re permit application no. MV11067) can therefore proceed.