the further information required must relate to the potential planning impacts of the development or use proposed in the application, and the matters that the responsible authority must consider before making a decision on that application.

importantly, the further information required must be proportionate to the scale and nature of the proposal, and the issues to be assessed.

a requirement under s 54 must be a bona fide request for information. It should not be used to delay an application, or to effectively seek changes to the application. Nor should it seek generic information not directly related to the particular application under consideration, or information that would ordinarily be required only after a decision to grant a permit had been made.

The decision found that issues of accessibility and environmental sustainable development (ESD) are relevant planning matters, notwithstanding that some aspects are also dealt with under building regulations. However, the requirement for an accessibility report here was generic, and not directed to overcome a particular deficiency in the application material. The requirement was therefore deleted.

The requirement for a full ESD management plan was also considered generic and unreasonable. However, the scale and nature of the development warranted some broad ESD information being provided, particularly on how the design had incorporated ESD principles relevant to the state and local planning policy framework, and relevant design guidelines. The requirement was therefore changed to a more limited requirement to reflect this. Given the push by Councils such as Moreland City Council to require more ESD information as part of a planning application, the Tribunal considers further policy guidance on this issue could be provided by DPCD.

The decision found that the requirement for a full Certificate or Statement of Environmental Audit (or a comprehensive environmental site assessment) was unreasonable at the planning application stage, prior to the permit applicant having the certainty of a permit to justify the significant costs of environmental assessment and management. What is reasonable at the permit application stage is that there be sufficient information for the Council to satisfy itself, at a threshold level, that there is no overriding contamination risk that cannot be managed and that might therefore warrant a refusal of the permit. If there is no such 'showstopper' issue, then all other issues of potential contamination can be dealt with by way of a standard permit condition (or under the Environmental Audit Overlay, if it applies). Given the site is a former petrol station, and given the scale of the proposed development, it is reasonable for a preliminary site assessment to be undertaken, in accordance with the 'General Practice Note - Potentially Contaminated Land (DSE, June 2005)'. The requirement was changed to reflect this.

Planning and Environment Act 1987 ss 54, 78(b); request for further information re accessibility, potentially contaminated land, and ESD matters; development comprising 6 stories and 27 dwellings on former petrol station site; extent of information that it is reasonable to require an applicant to provide at permit assessment stage; information should be proportionate to nature of development and likely risk

Calodoukas v Moreland CC (includes Summary) (Red Dot) [2010] VCAT 498

1. Pursuant to 85(d)(iii) of the Planning and Environment Act 1987, the responsible authority's requirement for further information dated 23 April 2009 in respect of Planning Application MPS/2009/160 is changed as follows:

1. Item 6 is deleted. 2. Item 9 is deleted and substituted as follows: 1. A preliminary environmental site assessment is required. This assessment should be prepared by a suitably qualified environmental professional and include: * a preliminary review of the site history, including known activities or the location of works that may have had the potential to cause contamination of the land, and including anything known about the likelihood and significance of any contamination on the land; * confirmation that there is nothing known from the site history or its potential contamination that is likely to prevent the proposed development and use of the land.

1. Item 10 is deleted and substituted as follows: 1. A statement indicating how the design of the proposed development has incorporated appropriate principles of environmentally sustainable development.
2. The time for compliance with the requirement for further information, as amended by this order, is 31 July 2010. The planning permit application will lapse if the information is not provided by that time, unless that time is extended under s 54A of the Planning and Environment Act 1987.

1. Moreland City Council has required Mr Calodoukas to provide further information in relation to a planning permit application for development and use of land at 134-136 Melville Road, Brunswick West.
2. Mr Calodoukas seeks to contest three of the items for which further information has been required, comprising requirements for:
   • an accessibility report;
   • an environmental audit or assessment; and
   • an environmentally sustainable development (ESD) management plan.
3. The permit application proposes a 6-storey development, comprising 3 shops and 27 dwellings. The land is zoned Business 1, and lies within a small mixed-use activity centre near the intersection of Melville Road and Albion Street. There are no overlay controls affecting the land.

Principles for requirements for further information under section 54

1. Before turning to the specific matters in dispute, it is worth noting the following principles in relation to the operation of s 54 of the Planning and Environment Act 1987:
   • the purpose of the power in s 54 is to enable a responsible authority to properly deal with a permit application -e.g. to clarify the application, or to overcome a deficiency in the application that prevents the responsible authority from understanding or resolving a key issue raised by the application that need to be assessed before a decision can be made.
   • the further information required must relate to the potential planning impacts of the development or use proposed in the application, and the matters that the responsible authority must consider before making a decision on that application.
   • importantly, the further information required must be proportionate to the scale and nature of the proposal, and the issues to be assessed.
   • a requirement under s 54 must be a bona fide request for information. It should not be used to delay an application, or to effectively seek changes to the application. Nor should it seek generic information not directly related to the particular application under consideration, or information that would ordinarily be required only after a decision to grant a permit had been made - e.g. by way of a subsequent permit condition.
2. On review, the Tribunal may confirm or change a requirement for further information, or direct the responsible authority to consider the application without the further information[1].

Requirement for accessibility report and ESD management plan

1. The two disputed items relating to the requirements for an accessibility report and an ESD management plan raise similar issues and can be dealt with together.
2. Item 6 in the Council's requirement for further information (contained in a letter dated 23 April 2009) comprises the following:
   1. An accessibility report prepared by a suitably qualified access consultant.
3. Item 10 requires the following information:
   1. An ESD management plan (EMP) prepared by a suitably qualified environmental engineer or equivalent. The management plan should consist of the following.

(a) Identify relevant sustainability targets or performance standards.

(b) Document the means by which the appropriate target or performance will be achieved.

(c) Identify the responsibilities and a schedule for implementation, and ongoing management, maintenance and monitoring.

(d) Demonstrate that the design elements, technologies and operational practices that comprise the ESD management plan can be maintained over time.

(e) An EMP must address the following, as appropriate:

(i) building energy management.

(ii) water sensitive urban design, integrated water management.

(iii) construction material selection.

(iv) indoor environmental quality.

(v) waste management and reduction.

(vi) public realm design for access and mobility.

(vii) transport.

(viii) demolition and construction phase.

(ix) compliance with sustainability performance standards.

(x) best practice principles and innovation.

1. On behalf of Mr Calodoukas, Mr Ng contends that an accessibility report and ESD management plan are both building matters and not planning matters, and that the Council here is acting beyond its mandate in requiring further information on these issues as part of the planning application. In seeking to have both requirements deleted on this basis, he relied on two decisions of the Tribunal:
   • Wellington Street Pty Ltd v Monash City Council[2], where a permit condition requiring disabled access to be provided to a first floor office was deleted because appropriate discretion was to be exercised by a building surveyor.
   • Hasan v Moreland City Council[3], where permit conditions requiring solar hot water, rainwater tanks, and a minimum 5-star energy rating were deleted because it was considered inappropriate for the planning system to prescribe detailed sustainability requirements addressed by other regulatory systems such as the building regulations.
2. It is not necessarily correct to draw an analogy between cases concerned with the reasonableness of detailed permit conditions, and broader issues of accessibility and ESD that might be considered at a threshold level as part of a s 54 requirement. In any event, from my reading of both decisions, it is clear that the conditions in each case were considered inappropriate or unreasonable having regard to the specific nature of the condition and the small scale of development. The Tribunal did not find that the conditions were beyond power, or inconsistent with the building regulatory framework. Wellington concerned a small two-storey office, and Hasan a two-dwelling development. Indeed, in Hasan, the Tribunal expressly acknowledged that the conditions were not ultra vires, and did purport to advance the broader objectives of planning.
3. It does not follow, for example, that disabled access is only ever a building matter, just because the building regulations govern disability access standards or when specific exemptions might be granted. Nor does it mean that ESD is only ever a building matter, just because the building regulations contain standards for 5-star energy ratings, solar hot water services or rainwater tanks. The planning and building regulatory frameworks both form part of an overlapping legislative scheme that regulates the use and development of land in Victoria. The planning framework clearly deals with issues such as accessibility and ESD principles. This occurs at a range of levels - for example, at a broad level in the objectives of planning in s 4 of the Planning and Environment Act 1987 and in the state planning policy framework[4], in design guidelines, or in specific local policies[5].
4. There is perhaps a 'tension' that exists in the demarcation between planning and building, given the overlapping legislative scheme. In Hasan, the Tribunal referred an earlier decision in Golden Ridge Pty Ltd v City of Whitehorse[6] and noted that environmentally sustainable design often turns on matters of detail, such as the thickness of insulation or the type of glass used in windows. The Tribunal considered it would be unreasonable to require this detail to be available at the time of planning approval, and this level of detail should be dealt with as part of the later building approval. However, equally, as noted recently in Polizzi v Darebin City Council[7], the environmental debate has moved forward rapidly since the decision in Hasan, and the planning system can make a real contribution to greater built form sustainability at a broader design level. This is particularly the case for larger-scale developments including higher-density residential development or development in activity centres, such as the proposal in this case. If broader issues of accessibility and sustainability are not considered 'up-front' at the time of planning approval, the ability to achieve a sustainable outcome may already be compromised by the time these matters are subsequently considered as part of a building approval, or there may be difficulties in retro-fitting the design to accommodate accessibility or to implement ESD principles. As was noted in Jolin Nominees Pty Ltd v Moreland City Council[8], requiring preparation of an ESD plan after a design is completed and approved will be a worthless exercise if the design has not embraced sustainability techniques and principles from the outset.
5. As in most things, a sense of balance and proportionality is required. It follows that it may be relevant to the initial planning assessment of a larger-scale development (such as the 6-storey, 27 dwelling development here) for the Council to seek further information on accessibility or the potential to meet the ESD principles embodied in planning policy and relevant built-form design guidelines. Equally, a permit applicant should not be required to provide information at a level of detail disproportionate to its development proposal. A responsible authority must be wary about imposing too high a burden or cost on a permit applicant to provide detailed information before it is reasonably required, or before the applicant has the comfort of knowing, at a threshold level, whether a planning permit will likely be issued, and whether there is an approved development through which those costs can be recouped.
6. As was also noted in Jolin Nominees, an ESD management plan should not be required as a matter of course, but only where one is really needed by reference to the scale or nature of the development in order to achieve sustainable outcomes in the longer term. The need should be sufficiently worthwhile to justify the cost. A similar situation prevails for an accessibility report.
7. In relation to the two disputed items, I consider both requirements for further information are far too broad in their ambit, and unreasonable in their current form.
8. In relation to the requirement for an accessibility report:
   • The requirement contains no information as to what the report should contain. An 'accessibility report', in town planning terms, would commonly deal with how a development would provide suitable access and amenities for the disabled, the elderly and others of limited mobility. If this is what is required, the Council should have said so, and particularised the requirement to the planning application before it.
   • The requirement seems generic and does not, on its face, seem directed to overcome a particular deficiency in the application material for this proposal. The Council now states that it wants the information because the design may need to be modified to comply with disability access standards - e.g. corridors may need to be widened. The Council however has a full set of scaled plans. So what is the specific deficiency on the plans in relation to accessibility where the Council really needs further information to properly assess it? If, for example, the corridors shown on the plans are not wide enough, that may be a reason for refusal of the permit or a permit condition requiring amended plans (or perhaps just an informal discussion between Council and the applicant). It is not a proper basis for a s 54 requirement.
   • It is not apparent why an 'expert' report of a general nature is required from a suitably qualified access consultant, as opposed to specific further information being provided by the applicant. Where is the identifiable need for the consultants report that justifies its cost?
9. Had the Council been able to point to a specific need for further information on accessibility for this proposal (as opposed to a desire for a general report), I would have changed the requirement accordingly, based on the views expressed earlier on the potential relevance of accessibility as a planning matter for a larger-scale development such as that proposed here. In the absence of such a justification, this item should be deleted.
10. In relation to the requirement for an ESD management plan:
    • Whilst the requirement does contain detailed information as to what the report should contain, the wording of the requirement demonstrates that it is generic and not directed to overcome a particular deficiency in the application material for this proposal.
    • It is not apparent why an expert report of a general nature is required from a qualified environmental engineer or similar, as opposed to specific further information being provided by the applicant.
11. There is a philosophical debate in planning at present about what is reasonably necessary in terms of ESD information to assess a particular permit application, and what may be more generally desirable to engender a cultural shift in attitude by developers in relation to ESD and sustainable design. Moreland City Council (along with others such as Darebin and Port Phillip) is at the forefront of this debate, introducing tools such as the 'Sustainable Tools for Environmental Performance Strategy' (STEPS) initiative. This is certainly a worthwhile debate, and it may be that more specific requirements or local policy provisions are included in planning schemes in the future to give greater guidance and certainty on this issue. The Tribunal would be assisted by a clearer policy position by the Department of Planning and Community Development on this issue. However, in the absence of a more specific planning scheme requirement at this time, it is difficult to justify a s 54 requirement for a full ESD management plan to be prepared by an external consultant, given the nature and scale of this development proposal.
12. Having said this, the nature and scale of this development (6 storeys, 27 dwellings and 3 shops in a small activity centre) is such that at least some further information on ESD is warranted, to enable the Council to make a broad assessment within the context of the existing state and local planning policy framework. This accords with views expressed earlier on the relevance of ESD as a planning matter, particularly at a sustainable design level for a larger-scale development.
13. In my view, the emphasis of a further information request should be on how the design has adopted and applied relevant ESD principles, such as those contained in relevant design guidelines[9]. The information provided in response need only be sufficient, at this stage, to enable the Council to assess the ESD issue at a broad level as part of its consideration whether a permit should be granted and, if so, what conditions may be appropriate. The requirement should not require changes to the design (directly or implicitly), or require a detailed management plan or ESD checklist, or require exhaustive details of future compliance with building regulations.
14. Whilst the permit applicant may choose to present information on this by way of an expert report, the information could be provided through a statement from the permit applicant or his planning consultant that deals with the relevant ESD and sustainable design issues at a broad level. I have therefore changed the requirement to allow for this.

Requirement for an environmental audit or comprehensive site assessment

1. Item 9 in the Council's requirement for further information comprises the following:
   1. Certificate or Statement of Environmental Audit. While the site is not covered by an Environment Audit Overlay, the use of the site as a petrol station dictates the site is 'potentially contaminated'. Before issuing a planning permit for use or development of land for a sensitive use as proposed, Council must be satisfied that the land is suitable for the intended future use. In order for Council to be satisfied a Certificate or Statement of Environmental Audit is required to be provided to Council.

Council officers understand that the preparation of a Certificate or Statement of Environmental Audit is often a time consuming and costly exercise resulting in applicants seeking to delay this requirement to a future date. Delaying the requirement for a Certificate or Statement of Environmental Audit is often not possible, however in order for Council to consider whether it is possible to delay the requirement for a Certificate or Statement of Environmental Audit the following will be required to be submitted for Council's consideration:

1. A comprehensive Environmental Site Assessment from a suitably qualified environmental expert, together with details of this persons professional indemnity insurance policy and the currency of this insurance policy. The Environmental Site Assessment must clearly state that the land is currently or following remediation or other works, will be suitable for the intended future sensitive use.
2. An undertaking by the permit applicant to pay Council's costs of obtaining an independent review of the Environmental Site Assessment from another suitably qualified environmental expert of Council's choice.

In seeking to delay the requirement to provide a Certificate or Statement of Environmental Audit you should be aware that it is Council who must ultimately be satisfied that the land is suitable for its intended use prior to the issue of a planning permit and that despite the completion of an Environmental Site Assessment and an independent review of this assessment Council may, at its discretion, ultimately determine that a Certificate or Statement of Environmental Audit is required prior to the determination of your planning permit application.

You should also be aware that the provision of an Environmental Site Assessment is unlikely to remove the obligation to obtain and supply Council with a Certificate or Statement of Environmental Audit prior to the commencement of development of the land.

1. I have set out the Council's requirement in full as the wording, on its face, clearly demonstrates that the requirement is out of proportion to what might reasonably be required by the Council at the permit application stage.
2. The site was previously used as a petrol station, and thus comprises potentially contaminated land. Despite there being no Environmental Audit Overlay, the Council is entitled to some further information to assess this issue, given its obligation under the Planning and Environment Act 1987 to consider any significant effects that the environment may have on the proposed use and development.
3. However, what is reasonable at the permit application stage is that there be sufficient information for the Council to satisfy itself, at a threshold level, that there is no overriding contamination risk that cannot be managed and that might therefore warrant a refusal of the permit. If there is no such 'showstopper' issue, then all other issues of potential contamination can be dealt with by way of a standard permit condition (or under the Environmental Audit Overlay, if it applies).
4. In my view, other than in exceptional cases, it is unreasonable to require the detailed environmental testing or management to occur before the permit applicant has the certainty of a planning permit to justify what might be very significant costs associated with the remediation of the site or the obtaining of a Certificate or Statement of Environmental Audit. Most former petrol station sites are capable of being cleaned-up and converted for residential or sensitive use, and there is no contrary evidence here that indicates that this is an exceptional site.
5. This view accords with the 'General Practice Note - Potentially Contaminated Land (DSE, June 2005)'. The Council, in its written submissions, quoted selectively from this document, such as the statement: 'An environmental audit should be provided as early as possible in the planning process'. However, the next sentence in the practice note continues: 'This may not always be possible or reasonable, and requiring an environmental audit as a condition of permit may be acceptable if the responsible authority is satisfied that the level of contamination will not prevent the use of the site'.
6. The Council's requirement alternatively seeks a comprehensive environmental site assessment and peer review, without derogating from the possibility that a Certificate or Statement of Environmental Audit may still be required at the planning application stage. This, in itself, makes the requirement quite uncertain in its ambit. Moreover, for a site assessment, the practice note simply envisages: 'A preliminary review of the site history (including current and previous uses and activities) by a suitably qualified environmental professional'. I note the use of the word 'preliminary' in the practice note, rather than the comprehensive site assessment the Council has purported to require. A preliminary environmental site assessment should provide sufficient information, at a threshold level, to assess the planning permit application.
7. For a petrol station site, this might include a preliminary review of the site history, including known activities or the location of works (such as underground fuel storage tanks) that may have had the potential to cause contamination of the land, and including anything known about the likelihood and significance of any existing contamination on the land. This would ordinarily be done as a desktop audit, rather than requiring formal site testing or analysis. From this, there could be confirmation that there is nothing known from the site history or its potential contamination that would prevent the proposed development and use of the land. The objective would be to provide information to demonstrate to the Council that any contamination (if it exists) can be adequately dealt with as part of the proposed development - e.g. by obtaining a Statement of Environmental Audit prior to the commencement of the development.
8. The practice note also indicates that further guidance for responsible authorities in assessing planning permit applications is contained in the EPA's State Environment Protection Policy (Prevention and Management of Contamination of Land). That SEPP (at clause 14) refers to a responsible authority meeting its obligations under the SEPP by requiring a Certificate or Statement of Environmental Audit prior to the commencement of buildings and works, or by imposing appropriate permit conditions. It does not indicate any necessity for detailed testing or environmental management to occur before the issue of a permit.
9. I agree with Mr Ng that, ultimately, if Mr Calodoukis cannot clean-up the site and obtain a Certificate or Statement of Environmental Audit before the development commences, the project can't proceed. A permit condition can secure that outcome. For a petrol station site, it is most unlikely that the Council would learn anything materially different if it had a full Certificate or Statement of Environmental Audit or a comprehensive environmental site assessment at the planning application stage, and the requirement is unduly onerous. It is therefore unreasonable to require that level of environmental assessment and management now.
10. It is also unreasonable for a Council to require the permit applicant to indemnify the Council in relation to the costs of a peer review. Whilst I disagree with Mr Ng that it represents an abuse of process, it is certainly an 'over the top' response by the Council that is quite unwarranted in the circumstances of this case.
11. In line with the 'General Practice Note - Potentially Contaminated Land (DSE, June 2005)', I consider it is appropriate for the preliminary site assessment to be prepared by a suitably qualified environmental professional.
12. I have changed the requirement to give effect to these views.

[1] s 85(1)(d) of the Planning and Environment Act 1987

[3] [2005] VCAT 1931

[4] for example, cl 12.05-2 - to promote good urban design ...by ensuring new development or redevelopment contributes to community and cultural life by improving safety, diversity and choice, the quality of living and working environments, accessibility, and inclusiveness and environmental sustainability (my emphasis). Some additional references to ESD principles in the Planning and Environment Act 1987 and planning schemes are set out in Jolin Nominees Pty Ltd v Moreland CC [2006] VCAT 467.

[5] The Moreland Planning Scheme contains within its local planning policy framework an objective relating to improved accessibility for people with disabilities in meeting the demand for housing within its municipality (cl 21.03-3). Sustainability is also a key theme that underscores most of the Council's MSS and local policy framework (see, for example, cl 21.01-1 and 21.03-3).

[6] [2004] VCAT 1706

[7] [2009] VCAT 1573

[8] [2006] VCAT 467

[9] see, for example, the specific design objectives and suggestions for environmental sustainability in the Activity Centre Design Guidelines (DSE, 2005) such as minimising energy consumption (e.g. solar orientation etc), minimising waste generation, and minimising water consumption and stormwater run-off. Similar matters are dealt with in the Guidelines for Higher Density Residential Development, (DSE, 2004), albeit not under an express 'ESD' heading.