1. Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 the application is amended by changing the name of the applicant to:

1. The decision of the Responsible Authority is varied.
2. The Tribunal directs that Permit No. P1503/2014 must contain the conditions set out in that permit, but with the following modifications:
   • (a) Amend the first sentence of Condition 7 by adding at the end of that sentence the following new words - "..., and then must ensure the on-going implementation of that approved plan (or of any approved varied version of that plan)".
   • (b) Delete Condition 9.

Mr Forrester of Kellehers Australia lawyers appeared for Martine Middendorp. Mr Forrester called expert agricultural management evidence from Mr Pitt.

Conditions appeal pursuant to Section 80 of the Planning and Environment Act 1987

Environmental Significance Overlay Schedules 11 and 28

Clauses 11.04, 11.05, 11.14, 12.01, 12.04, 14.02, 21.03, 21.04, 21.06, 21.09, 2203 and 22.14.

The subject land is an attractive coastal-rural site, situated between Point Leo to the east and Shoreham to the west. The area of the subject land is 27.7 hectares and its slopes down from its frontage towards the coast. It is currently used for agriculture (grazing) and has an open character, albeit with some limited stands of trees. There is currently a 'top' and a 'bottom' paddock and the site has some items of 'farm improvements'. Other lots in this locality vary in size and include both farming and hobby-farming type properties. The land in this location is seen as having a medium to high capacity for agriculture.

1. With respect to the attractive rural-coastal property at 3835 Frankston-Flinders Road at Point Leo, a planning permit No. P1503/2014 (Permit) has recently been granted, allowing the use and development of a dwelling, machinery sheds and associated works. Various conditions are attached to the Permit, notably Condition 9 which I have scanned and attached as an Appendix to this decision, and also Condition 7 which reads as follows:
   1. Prior to the initial occupation of the dwelling (or other such time as approved in writing by the Responsible Authority), the land owner/occupier must demonstrate commencement of the Integrated Land Management plan as approved (or as varied by the written consent of the Responsible Authority) to the satisfaction of the Responsible Authority. Any damaged or ineffective stock fencing must be replaced as soon as possible.
2. Coming back to Condition 9, in simple terms, it requires that prior to the occupation of the permitted dwelling, the landowner must enter into a Section 173 Agreement with Council, as follows. Condition 9(a) provides that the Section 173 Agreement must require that the approved Integrated Land Management plan be implemented and maintained in perpetuity, to the satisfaction of the Responsible Authority. Conditions 9(b) to (h) impose various day-to-day management requirements eg protecting indigenous native vegetation and fauna, keeping livestock out of conservation areas, responsibly managing any cats and dogs etc. The remaining sub-clauses simply go to the mechanics of creating the Section 173 Agreement.
3. The general nature and features of the subject land, the locality and the relevant planning controls are already set out above.
4. The landowner/permit holder has initiated a conditions appeal against Condition 9. The hearing of this matter came before me on 19 March 2015. During the hearing I heard submissions from the advocates listed above, plus I received the expert agricultural management evidence of Mr Pitt (who was called on behalf of the objector Martine Middendorp).
5. For the reasons set out below, my overall finding is that it is reasonable that Condition 9 be deleted, but on the basis that Condition 7 is strengthened.

1. Starting with some simple points, the Tribunal may delete a permit condition either if it finds that condition to be unlawful, or otherwise if the Tribunal considers it unreasonable.
2. Where a contentious permit condition requires the landowner to enter into a Section 173 Agreement with Council, all parties before me agreed that the relevant caselaw tells us that such a 'you must enter into a 173 Agreement' permit condition should be imposed cautiously, more in the nature of a 'last resort' rather than a 'first strike'. This reflects the reality that preparing and lodging a Section 173 Agreement is a not insignificant task involving real time and cost, plus varying a Section 173 Agreement once it is on title is not easy either.
3. I mentioned to the parties that we all had to remember that this proceeding is not a merits review, but a relatively narrow focus simply on Condition 9. However I did indicate that with this type of conditions appeal, on occasions it is still appropriate for the Tribunal to potentially make changes to other conditions which have not been formally challenged, provided this is done on a consensus basis. Following this approach, where during the hearing Mr Forrester mooted potential changes to the Condition 1 sub-clauses in the Permit which the Applicant resisted, I agree with Mr Carey that this would be inappropriately:
   • Trying to revisit some of the core features of the approved use and development, in a manner similar to a 'back-door merits review'.
   • Taking Mr Carey and the Tribunal by surprise.
4. Turning now to the more key and hotly contested aspects of this conditions appeal, the two aspects I consider need resolving are:
   • Is it reasonable to have a Section 173 Agreement implementing the type of day-to-day management requirements set out at Condition (b) to (h)?
   • If not, is it still reasonable to have the requirement under Condition 9(a) that there must be a Section 173 Agreement providing that the approved Integrated Land Management plan (ILM) must be implemented and then maintained in perpetuity?

Tribunal's findings regarding Conditions 9(b) to (h)

1. Dealing with the first of these points, my finding is that Conditions 9(b) to (h) are unreasonable to impose through a Section 173 Agreement. This finding is based on my view that in most respects[2] they are the type of sensible day-to-day management requirements that a competent ILM should deal with anyway. In other words, I see it as fatal that the type of day-to-day management requirements set out in (b) to (h), whilst sensible per se in themselves, will double-up with what should be found in a well-written ILM. In my view it would be a poor planning outcome if the current or a future owner of the subject land had to keep referring back and forth between the approved ILM and the requirements of the Section 173 Agreement in terms of these type of 'good day-to-day management' obligations - surely it is much better to pull them together in the one document.
2. With respect to the farm management evidence presented by Mr Pitt, I do not necessarily question per se his expert view that this type of property is not simple to manage well, or that some potential improvements could be made to the draft ILM that I understand has been prepared for this property. However I am really struggling to see how his evidence is directly relevant to my discretion in this matter, given that:
   • the Tribunal is not conducting a merits review of the operation of the dwelling/farm on the subject land;
   • nor has any formal review been initiated of the requirements of Condition 1

but rather the Tribunal is simply required to resolve whether or not Condition 9 is either unlawful or unreasonable. I would observe in passing however that if the draft ILM has not yet been formally approved by Council (which apparently was the case as at the hearing date), then it might still be possible for there to be a sensible final discussion about what it should say. However any such discussion would be outside of the Tribunal's role and a matter for another day.

1. Finally, with one proviso, I am unconvinced that it is reasonable that Condition 9(a) force the landowner to enter into a Section 173 Agreement requiring the commencing of the approved ILM and then its indefinite implementation. To be clear, I acknowledge that the need for certainty that there will be on-going implementation of the approved ILM is very useful and important per se. My point is rather that in the particular circumstances here, I consider it an overkill to use a Section 173 Agreement where the requirement for on-going implementation can be satisfactorily imposed through a permit condition.
2. When I say 'particular circumstances here', I mean in particular that this is a more generous sized site at almost 30 hectares. Whilst the situation is not clear cut, I accept that with this type of more generous sized site, there is less risk of the approved dwelling being inappropriately used in the future on a rural-residential basis (and hence a weaker case for needing a Section 173 Agreement to flag the requirement for the on-going agricultural operation of the property). If the subject land had been somewhat smaller, it follows that I may well have seen the case for a Section 173 Agreement as stronger.
3. The proviso is as follows. It came out of the discussion at the hearing that on a careful reading, Condition 7 requires the commencement of the activities under the approved ILM, but not its on-going implementation. When I discussed this with Mr Carey, he indicated the owner/permit holder could live with Condition 7 being amended, to make it clearer that the approved ILM must be not only commenced but also implemented in an on-going manner (and no other party queried this). This seems a sensible modification, which I have actioned in my orders above.
4. I am conscious that Mr Forrester spent some time in his submission emphasising what is seen as the:
   • Inherent advantages in the situation here of utilising a more formal document, being a restriction on title.
   • More sensitive environmental/landscape attributes of the subject land.
5. Following this approach, a more sensitive site like this justifies the need for a Section 173 Agreement, which can easily be accessed by way of an on-line title search.
6. I commend Mr Forrester (particularly as a young advocate) in putting his client's 'best foot forward' in this regard. However I consider that in reality he had a difficult case to present - in my view most of his points raised on behalf of his objector client are relatively peripheral to the nitty-gritty of whether or not Condition 9 is unreasonable.
7. Whilst I agree it is very convenient to do a title search nowdays, it is also not that difficult to request from Council a copy of any relevant permits for a property (or arrange a search of the Council file for that property).
8. Although I acknowledge the subject land is affected by multiple overlays and clearly has substantial landscape significance per se, the evidence indicates that:
   • The site is largely cleared.
   • The remnant vegetation (whilst pleasant) is not in itself exceptional.
   • There are no binding national or international environmental conventions/obligations arising from the specific flora/fauna on the review site itself.
9. There was considerable time spent discussing the relevant case law - see a good summary of same at paragraph 9.1 of Mr Wood's written submission. It was common ground that the earlier Tribunal cases more 'go both ways'[3] with whether a permit condition requiring a Section 173 Agreement is reasonable, but that the most recent ones have favoured the challenging landowner rather than Council.
10. Kavals v Mornington Peninsula CC [2014] VCAT 1253 was seen as a very good place to start with comparisons, in being a case handed down as recently as 8 October 2014 in the same municipality. Council advised me that this case is the only one handed down since the recent introduction of Council's Localised Planning Statement.
11. At paragraph 26 onwards of Kavals, there is a helpful discussion by SM Baird, where (similar to my comments above) she endorsed the need per se for the intended management requirements, but queried why they needed to be in a Section 173 Agreement. That is to say, these management requirements can continue to apply and operate through an ordinary permit condition, and either Council or affected neighbours can potentially seek an Enforcement Order at the Tribunal if it is believed that 'active permit conditions' are being breached by the occupier. SM Baird's overall finding was that she did not support the need for a Section 173 Agreement.
12. As Mr Carey rightfully highlighted, Benedetti v Moonee Valley CC [2005] VCAT 434 is authority that for so long as a permit holder takes the benefit of a permit, there is an obligation on that permit holder to comply with any on-going 'live' permit condition requirements.
13. In summary, I consider the facts and discussion in Kavals to be very applicable to the facts before me and I accept that it is a strong precedent supporting the Applicant's case here. Also see the similar findings by Member Sibonis at paragraphs 11-13 of Southern Planning Consultants v Mornington Peninsula SC [2013] VCAT 1874, which in turn cites equivalent comments by the Tribunal at paragraphs 33-34 of Taras Nominees Pty Ltd v Mornington Peninsula CC [2012] VCAT 1889. In all the circumstances, it seems unnecessary to review the other caselaw cited to me.

1. In summary, for the reasons set out above, I have resolved to delete Condition 9, but with some strengthening of the provisions of Condition 7. See my orders above.
2. In closing, I note the advice of Mr Wood that the contentious Condition 9 in fact forms part of a 'standard set of draft permit conditions' commonly used by Council for this type of permit approval. At the risk of stating the obvious, there is a major anomaly here between the use of Condition 9 on a scatter-gun basis by Council for a certain type of permit approvals, compared to the repeated findings by Tribunal decisions that the requirement via a permit condition for the owner to have to enter into a Section 173 Agreement is a serious imposition that should be utilised on a cautious/tailored basis. I would hope Council will bear this anomaly in mind in issuing future planning permits of this type.

[1] I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in these reasons.

[2] It is an interesting question as to how any (normally free-ranging) cats are to be managed on the subject land!

[3] Although noting Mr Carey's point that in the following two cases a planning permit requirement for a Section 173 Agreement was imposed, but where this had been volunteered by the permit applicant - see Lyons v Mornington Peninsula SC [2011] VCAT 1761 and Targett v Mornington Peninsula SC [2011] VCAT 888.