1. The permit applicant seeks to construct 16 dwellings, two of which are double storey and the remainder being single storey. One of the dwellings already exists on the Land. All dwellings except one will contain three bedrooms. All dwellings except one will contain a double garage providing two carparking spaces; the remaining dwelling will contain a single garage.
2. According to the Council's Planning Assessment Report:[3]

1. A planning permit is required for the proposed development pursuant to the GRZ, the BMO1 and the LSIO.
2. In effect, the permit applicant has sought three separate planning permissions for the development:
   1. permission for development under the GRZ;
   2. permission for development under the BMO1; and
   3. permission for development under the LSIO.

1. The planning permit application was advertised and the Council received 10 objections.
2. These objections raised a number of concerns with the focus generally on the flood risk to the Land, the capacity of the Land to be developed in light of the flood risk and the potential impact on emergency services in the event of development of the Land and future flooding events.
3. One of the applicants, David Ujimoto, attached the following photo with the corresponding annotation to his objection lodged with the Council.[4]

1. In the Planning Assessment Report, the Council states the following regarding the flood event that occurred at that time:[5]

Exemption of third party notice and review rights

1. The applicants' application for review is brought under section 82 of the Act, which provides:

1. Section 82(3) of the Act refers to the provisions of the Scheme.
2. Both the BMO and the LSIO contain an exemption from third party rights of review, as referenced in section 82(3) of the Act.
3. The relevant provision in the BMO provides as follows:

1. Clause 10 of Schedule 1 to the BMO does not specify anything in relation to the second sentence of clause 44.06-7, above.
2. The relevant provision in the LSIO provides as follows:

1. As an aside, I observe the different phrasing of clause 44.06-7 of the BMO and clause 44.04-6 of the LSIO, where the former states 'an application is exempt from the notice requirements...' and the latter states 'an application under this overlay is exempt from the notice requirements...' (Tribunal emphasis).
2. This was not discussed at the hearing and no party has suggested that the application is completely exempt, under all permissions, from third party notice and review. Nor do I think that this would be the correct interpretation, noting that the Scheme is to be read as a whole and in an instance where that outcome is intended, being the exemption under clause 43.04-3 of the Development Plan Overlay of the Scheme, the words are very clear:

1. Section 52 of the Act is the provision in the Act governing when notice of a permit application is given to third parties. Section 52(1) of the Act provides:

1. The effect of the exemption from notice contained in the LSIO and the BMO1 is that third parties are not entitled to be given notice of a permit application made under the LSIO or the BMO1.
2. Accordingly, whilst notice of the permit application was given, in effect the only permission that could be the subject of notice to third parties and objection by third parties was the permission sought under the GRZ.
3. When an objection is received from a person who is entitled to be given notice, the effect is that the responsible authority must consider that objection before making a decision with respect to the permit trigger.[6]
4. However, where no notice is required to be given under section 52(1) of the Act or under the Scheme of a permission sought, the responsible authority is not required to consider any objection or submission received in respect of that application before deciding the application.[7]
5. Section 64 of the Act deals with the giving of notice of a decision to grant a permit to persons who objected to the permit application. Section 64(1) requires the responsible authority to give notice to persons who objected, section 64(2) requires the notice to set out any permit conditions and section 64(3) deals with timeframes for the issuing of the permit.
6. When section 64(1), (2) and (3) of the Act refer to persons who objected to a permit application, these sections are referring to persons who were entitled to object to the permit application.
7. Section 64(4) and (5) of the Act deal with when persons are exempted from the giving of notice. These sections provide that where a planning scheme exempts a decision from the requirements of section 64(1), (2) and (3) of the Act, that the responsible authority must nonetheless give any person who objected but was not entitled to object a copy of the notice of decision to grant a permit.
8. This was discussed in West Valentine Pty Ltd v Stonnington CC,[8] where the Tribunal explained that these provisions of the Act contemplate that there may be situations where objections have been made to a permit application even though the objectors have no rights in respect of the application. These sections operate to advise such persons of the decision that has been made although no 'rights' arise from such notice being given of that decision.

1. Section 52 of the Act can be contrasted with section 55 of the Act, which deals with when an application is referred to a referral authority.
2. Section 55 of the Act is as follows:

1. The application for review brought by the NCCMA is made under section 82AAA of the Act, which provides:

1. In order to bring an application under section 82AAA of the Act the following three facts must exist:
   1. the responsible authority must have decided to issue a notice of decision to grant a permit;
   2. a person must be a 'recommending referral authority' for the decision for which review is sought; and
   3. the 'recommending referral authority' must have either objected to the grant of the permit or requested the inclusion of a condition on the permit that was not included in the notice of decision to grant a permit.
2. To ascertain the identity of the relevant referral authorities for a particular proposal, we look to the Scheme.

1. Clause 66 'Referral and Notice Provisions' of the Scheme deals with referrals and notice of applications under the Scheme.
2. Clause 66 provides:

1. Clause 66.03 'Referral of Permit Applications under other State Standard Provisions' contains a table that identifies the referral authority for various permit triggers and whether that authority is a 'determining' or 'recommending' referral authority.
2. Clause 66.03 provides, as relevant to the LSIO:

1. The application under the LSIO for the proposal on the Land is outside of the waterway management district of Melbourne Water Corporation. As such, the relevant referral authority is the 'relevant floodplain management authority', being the NCCMA. In this instance, the NCCMA is a 'recommending referral authority'.
2. The terms 'determining referral authority' and 'recommending referral authority' are defined in the Act. Relevant for present purposes, 'recommending referral authority' is defined as follows:[9]

1. However, given the permission is sought under the LSIO there is another important qualifier as to whether referral of the proposal is required to the NCCMA. This is found in clause 44.04-7 of the LSIO:

1. The effect of clause 44.04-7 in the context of the current permit application is that permit application PLN280/2022 must be referred to the NCCMA under section 55 of the Act unless in the opinion of the Council what is proposed in permit application PLN280/2022 satisfies 'requirements or conditions previously agreed in writing' between the Council and the NCCMA.
2. It is common ground between the Council and the NCCMA that the document 'Campaspe Local Floodplain Development Plan Precinct of Echuca, Goulburn Broken Catchment Management Authority, North Central Catchment Management Authority and Campaspe Shire, October 2010' (Campaspe LFDP) constitutes 'requirements or conditions previously agreed in writing' between the Council and the NCCMA for the purposes of clause 44.04-7 of the Scheme.
3. As such, pursuant to the operation of clause 44.04-7 of the Scheme, if the Council forms the opinion that the proposal satisfies the requirements or conditions of the Campaspe LFDP, the proposal will not need to be referred to the NCCMA under section 55 of the Act.

Campaspe LFDP and relevant amendments to the Scheme

1. The Campaspe LFDP is an incorporated document as referenced in clause 1.0 of the Schedule to clause 72.04 'Incorporated Documents' of the Scheme.
2. Previous versions of the Campaspe LFDP were incorporated into the Scheme in 2002 and in 2006.
3. The October 2006 version of the Campaspe LFDP was incorporated into the Scheme by Amendment C49 to the Scheme.
4. The current version of the Campaspe LFDP is dated October 2010 and was incorporated into the Scheme by Amendment C85 to the Scheme.
5. Both the version dated October 2006 and the current version dated October 2010 contain 'General Development requirements for the LSIO and FO'. There are some differences in wording between the two versions with respect to these requirements.
6. The current version of these general development requirements is as follows:

1. I observe that the second and third dot points are objective in that their satisfaction is based on measurable matters, whereas the first dot point is arguably more subjective.
2. The Explanatory Report for Amendment C49, which incorporated the October 2006 version of the Campaspe LFDP into the Scheme, explains that the amendment was prepared by the Council in its capacity as planning authority and at the request of the Goulburn Broken Catchment Management Authority (GBCMA) and the NCCMA.
3. The Explanatory Report for Amendment C49 explains what the amendment does, as follows:

1. As to why the amendment was required, the Explanatory Report explains this as follows:

1. I draw particular attention to Amendment C49 seeking to reduce the number of applications requiring referral to the GBCMA and the NCCMA under section 55 of the Act where the application is in accordance with a Local Floodplain Development Plan that has been incorporated into the Scheme.
2. The Explanatory Report explains the environmental, social and economic effects of Amendment C49 as follows:

1. I draw attention to the perceived economic effects of Amendment C49, including the reduced economic impact on the catchment management authorities.
2. Amendment C49 was referred to a planning panel (Panel). The Panel report was issued on 21 April 2008.
3. In describing Amendment C49, the Panel says:[10]

1. The Panel explains the role of the local floodplain development plans as follows:

1. Amendment C85 incorporated the current version of the Campaspe LFDP, dated October 2010, into the Scheme.
2. The Explanatory Report for Amendment C85 explains that the amendment was prepared by the Council in its capacity as planning authority and at the request of the GBCMA and the NCCMA. The Explanatory Report contains the following information as to the reasons for the amendment:

Zones and overlays under which permission is sought

1. Permission for the development proposal is sought under the GRZ, the LSIO and the BMO1 of the Scheme.

1. The purposes of the GRZ are contained in clause 32.08 of the Scheme, as follows:

1. The decision guidelines of the GRZ are contained in clause 32.08-13 of the Scheme, as follows:

1. Clause 1.0 of the Schedule to the GRZ does not contain any neighbourhood character objectives.
2. Clause 7.0 of the Schedule to the GRZ does not contain any decision guidelines.

1. The purposes of the LSIO are contained in clause 44.04 of the Scheme, as follows:

1. The decision guidelines of the LSIO are contained in clause 44.04-8 of the Scheme, as follows:

1. Clause 5.0 of the Schedule to the LSIO also contains decision guidelines. Clause 5.0 provides:

1. Amongst the local floodplain development plans referenced is the Campaspe LFDP.

1. The purposes of the BMO1 are contained in clause 44.06 of the Scheme, as follows:

1. The decision guidelines of the BMO are contained in clause 44.06-8 of the Scheme, as follows:

1. Schedule 1 'Echuca, Rushworth BAL-12.5 areas' applies to the construction or extension of one dwelling on a lot.

Other referenced provisions of the Scheme and Act

1. Given the reference to clause 65 of the Scheme in the GRZ, LSIO and BMO1, I extract clause 65.01 'Approval of an Application or Plan' of the Scheme below:

1. Clause 65.01 refers to the matters set out in section 60 of the Act.
2. I do not extract all of section 60 of the Act but observe that it contains matters that a responsible authority must consider when deciding an application (s60(1) of the Act) and matters that the responsible authority may consider, if the circumstances appear to so require. Amongst the matters that a responsible authority must consider is:

1. The NCCMA refers to clause 02.03-3 'Environmental risks' of the Scheme in its statement of grounds.
2. This clause provides as follows:

1. The NCCMA refers to clause 13.01-1S 'Natural hazards and climate change' of the Scheme in its statement of grounds.
2. This clause provides as follows:

1. The NCCMA refers to clause 13.03-1S 'Floodplain management' of the Scheme in its statement of grounds.
2. This clause provides as follows:

1. Clause 13.03-1L 'Floodplain management in Campaspe' applies to land in the LSIO and to the Campaspe LFDP.
2. This clause provides as follows:

1. In the Planning Assessment Report the Council states the following with respect to the notice and review rights available for the permissions sought under the LSIO and the BMO1:[11]

1. The Planning Assessment Report makes the following comments with respect to the referral of the permit application:[12]

1. The objection from the NCCMA to which the Council refers is dated 6 December 2022 (NCCMA Objection). In this, the NCCMA acknowledges that it is not a referral authority:[13]

1. The NCCMA Objection relies on six grounds of objection, all relating to flooding hazard with respect to the Land.
2. The NCCMA then provides reasons for its objection, amongst which are concerns regarding the accuracy of the current recorded flood levels for the Land, the proposal not responding appropriately to the significant flood hazard inherent to the Land and the NCCMA's intention to 'rectify' the Campaspe LFDP to correctly reflect what the NCCMA says was the original intent of the referral exemption.
3. The NCCMA Objection states the following under the heading 'Advice to Applicant / Council', which I extract in its entirety to provide context to the circumstances surrounding these proceedings.

1. The Council records the following in the Planning Assessment Report with respect to its assessment of the permission required under the LSIO:[14]

1. The Council has included a condition in the NOD to ensure that construction occurs at the level required by the Campaspe LFDP:

1. The purposes of the practice day for this proceeding can be grouped as follows:
   1. whether the applicants can raise flooding concerns in this review proceeding and if not, whether those grounds should be struck out pursuant to section 75 of the VCAT Act;
   2. whether the applicants can raise concerns regarding fencing costs, sewerage and water services, subdivision and lack of procedural fairness and natural justice at the council-stage in this review proceeding if not, whether those grounds should be struck out pursuant to section 75 of the VCAT Act; and
   3. depending on the answers to the above, matters of future conduct including whether this proceeding should be heard and determined at the same time as VCAT Application P324/2023 (depending on the answers to the matters before the Tribunal in the practice day hearing for that proceeding).
2. I will deal with the first two of these matters now and will then deal with the issue of future conduct after addressing the purposes of the practice day hearing for VCAT Application P324/2023.

Can the applicants raise flooding concerns in this proceeding?

1. The applicants' reasons for application are contained in section 16 of the application for review form.
2. With respect to flooding concerns, the applicants state as follows:

1. In written submissions the applicants relied on the Wednesbury unreasonableness test, being an administrative law doctrine arising from the case of Associated Provincial Picture House Ltd v Wednesbury Corporation[15] (Wednesbury).
2. In short, the test in Wednesbury is whether the decision-maker (here, the Council) has made a decision that is so unreasonable that no decision‑maker in that position could have made such a decision.
3. The applicants also contend that the Council failed to take into account a relevant consideration that it was bound by law, either implicitly or explicitly, to take into account. Again, this is another administrative law doctrine.
4. In this respect, the applicants refer to:
   1. the information contained in the NCCMA Objection, which the applicants submit the Council should have taken into account; and
   2. an earlier letter from the NCCMA to Denham Design dated 16 August 2021 (2021 Letter), which the applicants submit should not have been relied upon by the Council.
5. The 2021 Letter was sent in response to an enquiry seeking flood advice for the Land. The 2021 Letter specifies the declared 1% AEP (that is, a 1 in 100 year) flood event as being 95.7 metres AHD and then the NCCMA advises that in the event of such a flood event, it is likely that the Land will be subject to inundation from the Murray River.
6. The 2021 Letter states what the NCCMA thinks the flood depths on the Land might be in such a flood, based on survey data available to the NCCMA, but then states that Land levels are an estimate only and should not be relied upon by the permit applicant.
7. The 2021 Letter recommends that a licensed surveyor be engaged to determine the exact effect of the applicable flood level on the property and/or any building floor levels.
8. With respect to the 2021 Letter, the applicants submit that due to the disclaimers in that letter, any reliance on the 2021 Letter by the Council is misplaced.
9. With respect to the NCCMA Objection, the applicants submit that the Council was required to take it into account because clause 44.04-8 'Decision guidelines' of the LSIO requires the Council to consider 'as appropriate' 'any comments from the relevant floodplain management authority'.
10. The applicants' submission contains details of their concerns regarding the susceptibility of the Land to flooding and flood damage, the potential flood risk to life and the Council's failure to consider and decide on submissions made to the Council.
11. The applicants assert that the Council's decision contains a level of unreasonableness and negligence that would be unacceptable to a reasonable Council. The applicants assert that because of this:[16]

1. The applicants' lodged an additional submission in which they query how the Council could have concluded that the proposed development would not obstruct the natural flow path of floodwater; that is, the first of the three general requirements in clause 6.0 of the Campaspe LFDP. The applicants assert that the resulting floodwater will result in inundation of adjoining properties.

Submissions from the Council and the permit applicant

1. The Council refers to the exemption from third party notice and review contained in clause 44.04-6 of the LSIO.
2. The Council relies on the Tribunal decisions of Myers v Southern Grampians SC[17] (Myers) and Clifftop at Hepburn Pty Ltd v Hepburn SC[18] (Clifftop).
3. The Council submits that the matters considered in Clifftop are analogous to the matters facing the Tribunal in this proceeding and asserts that the LSIO 'covers the field' in relation to issues that relate to flood risk. The Council further submits that none of the other provisions that give rise to permit requirements (that is, the GRZ and the BMO1) provide any discretion to consider flood risk, noting that in any event the permission required under the BMO1 is not amenable to third party review.
4. The Council submits that the matters arising out of the LSIO have 'received a tick' from the Council; that is, they have been established. The Council submits that the Tribunal does not have jurisdiction to consider matters arising out of the LSIO in this application made under section 82 of the Act.
5. For these reasons, the Council submits that the applicants' grounds in relation to flooding should be struck out as misconceived and lacking in substance.

1. The permit applicant refers to the exemption from third party notice and review contained in clause 44.04-6 of the LSIO.
2. The permit applicant submits that the applicants have no rights of review regarding the LSIO and can only bring this proceeding with respect to those decisions for which they do have rights to be given notice and lodge a review under section 82 of the Act.
3. As such, the permit applicant submits that the applicants' grounds relating to flooding should be struck out as misconceived.

1. The proposed development of the Land under planning permit application PLN280/2022 requires three planning permissions under the Scheme:
   1. development permission under the GRZ;
   2. development permission under the LSIO; and
   3. development permission under the BMO.
2. Of these, the only permission that is available for third party review under section 82 of the Act is that sought under the GRZ. This is due to the operation of clause 44.04-6 of the LSIO and the equivalent provision in the BMO, being clause 44.06-7 of the BMO.
3. Focusing on flooding, the wording of clause 44.04-6 of the LSIO means that an application made under the LSIO will not be the subject of notice to third parties under section 52(1)(a), (b) and (d) of the Act, is not subject to the decision requirements of section 64(1), (2) and (3) and is not able to be reviewed under section 82(1) of the Act.
4. The effect of this is that even if a third party becomes aware of the application made under the LSIO and makes an objection to that permission, as that person was not entitled to be given notice, their objection does not lead to them having review rights under section 82(1) of the Act.[19]
5. Hence, in the current proceeding where the applicants lodged an objection with the Council that included their concerns with respect to flooding, this occurred in circumstances where the applicants were not entitled to lodge that objection under the LSIO. Accordingly, their objection does not enable them to bring an application for review under section 82 of the Act in respect of the LSIO permission sought for the proposal.
6. Rather, given the Council's issue of the NOD for the proposal, the approval of the permission sought under the LSIO - as well as the permission sought under the BMO1 - can be said to have been 'established'. Accordingly, the only permission that is available for review by the applicants under section 82 of the Act is that sought under the GRZ.
7. What this means is that the only matters that are available for review by the Tribunal in this proceeding brought under section 82 of the Act are those that relate to the permission sought under the GRZ.
8. The flooding concerns raised by the applicants are properly addressed in the assessment of the permission sought under the LSIO. As stated, this permission is not before the Tribunal in this review proceeding.
9. The only way that the applicants' concerns regarding flooding could be taken into account is through the Tribunal's consideration of the permission that is before the Tribunal for review, being that under the GRZ.
10. I acknowledge that there is State and local planning policy in the Scheme that deals with floodplains: clause 13.03 'Floodplains' includes clause 13.03-1S 'Floodplain management' and clause 13.03-1L 'Floodplain management in Campaspe'.
11. I also acknowledge that clause 65.01 of the Scheme requires consideration 'as appropriate' of 'the degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard'.
12. I acknowledge that section 60(1)(e) of the Act requires consideration of any significant effects which the responsible authority considers the development may have on the environment or which the environment may have on the development.
13. These provisions would be relevant to the assessment of the permission sought under the LSIO. However, as stated, the decision to issue the permission under the LISO is not reviewable in this proceeding.
14. These provisions will not be taken into account in assessing the permission sought under the GRZ. This is because, given the imposition of the LSIO over the Land, the LSIO 'covers the field' with respect to floodplain management of areas identified for inclusion in the LSIO.
15. Analogous with the situation in Clifftop as regards the presence of the BMO in that case, in the present case where the LSIO is in operation, floodplain management and flooding risk is assessed under the LSIO and not under the GRZ.[20]
16. In summary:
    1. of the three permissions sought, it is only the permission under the GRZ that is before the Tribunal for review in this proceeding;
    2. given the Land is in the LSIO, the assessment of floodplain management and flooding risk occurs under the LSIO, including the application of State and local planning policy in the Scheme, clause 65 of the Scheme and section 60(1)(e) of the Act that relates to floodplain management;
    3. the permission sought under the LSIO is not available for review under section 82 of the Act and the approval of that permission is taken to be a matter that has been 'established', in terms of the assessment of this proposal overall; and
    4. as the LSIO 'covers the field' with respect to floodplain management of areas identified for inclusion in the LSIO, State and local planning policy in the Scheme, clause 65 of the Scheme and section 60(1)(e) of the Act that relates to floodplain management will not be taken into account in assessing the permission sought under the GRZ.
17. In Clifftop, I considered the alternative position if I was wrong about what was assessed under the BMO 'covering the field' with respect to bushfire.[21] Similarly, I do this now.
18. If I am wrong about the LSIO 'covering the field' with respect to flooding matters, it would need to be established that the policy provisions of the Scheme dealing with floodplain management, along with clause 65 of the Scheme and section 60(1)(e) of the Act, were relevant to the development permission sought under the GRZ. Relevance is to be established through consideration of the purposes of the control being assessed and the decision guidelines for that control.
19. The purposes of the GRZ are extracted earlier.
20. With respect to the first purpose of the GRZ, which is common to the zones and overlays, I reiterate the following comment made in Clifftop:

1. The other purposes of the GRZ seek for development to respect the neighbourhood character of the area, encourage a diversity of housing types and housing growth in locations offering good access to services and transport, and, address potential non-residential use and development of land.
2. None of these purposes are directed at flood risk, floodplain management or flooding issues.
3. The decision guidelines in the GRZ are also extracted earlier.
4. In addition to the decision guidelines in clause 65 of the Scheme, those decision guidelines direct consideration to (as appropriate) the purposes of the GRZ, the impact of overshadowing on existing rooftop solar energy systems on dwellings, and, the objectives, standards and decision guidelines of clause 55 of the Scheme.
5. None of these decision guidelines are directed at flood risk, floodplain management or flooding issues.
6. I acknowledge that clause 65 of the Scheme and section 60(1)(e) of the Act could conceivably incorporate consideration of flood risk and flood management. However, the reason for looking at these matters is to guide the decision that needs to be made by the Tribunal under, in this case, the GRZ. That decision under the GRZ is made through the lens of the purposes of the GRZ.
7. The purposes of the GRZ are to encourage residential development that respects neighbourhood character, and to do so in higher densities in parts of the GRZ that are well located in terms of access to services and transport. It is also to provide for appropriate non-residential development, such as medical centres and places of worship.
8. It is not to identify land that is prone to flooding or to manage flood risk in association with land.
9. If land is identified as being prone to flooding and requiring special management as a consequence, including in terms of whether it can be developed with dwellings and how many, that land should be included in one of the specific flood zones or overlays. The inclusion of land in such a zone or overlay will have implications in terms of the development potential of the land - as is expected. The inclusion of land in such a zone or overlay would occur following a planning scheme amendment, where affected persons are given the opportunity to comment on the land's potential rezoning.
10. Here, the Land is included in such a flood overlay, with the consequence that those specific flood concerns are assessed when permission is required under the LSIO. That is the appropriate place to assess those matters.
11. It cannot be the case that effectively the same issues with regards to flood risk and flood management can be taken into account in the assessment of permission sought under the GRZ, through the application of clause 13.03‑1S, 13.03-1L and clause 65 of the Scheme and section 60(1)(e) of the Act as are taken into account in assessing a permission sought under a specific flood overlay, such as the LSIO.
12. If this were so, then this would result in a decision-maker taking into account specialised and potentially technical matters under a more generalised zone permission, where the decision guidelines in the zone are not directed at such assessment.
13. As I said in Clifftop, this would also effectively provide third parties with a 'back door' to be involved in the assessment of these matters through, in this case, a development permission under the GRZ when those persons are not able to address those matters via the specific provision that deals with it, namely the LSIO, due to the exemption in the Scheme. This cannot be correct.
14. For these reasons, I find that in the circumstances of this proceeding, the applicants cannot raise flooding concerns in relation to the decision that is before the Tribunal, namely, whether to grant permission under the GRZ for the development of 16 dwellings.
15. Turning briefly to other issues raised by the applicants, the applicants' reliance on Wednesbury unreasonableness and whether the Council took into account relevant or irrelevant considerations are matters that can be raised in the Tribunal's Planning and Environment Division, however, they cannot be raised in a case such as this, brought under section 82 of the Act. This is because those matters look at the way in which the decision was made and interrogate whether the decision-making followed the proper process, whereas the proceeding now before the Tribunal is merits review, in which the Tribunal's task is to assess what is the correct and preferable planning decision and whether the proposal represents an acceptable planning outcome for the Land.
16. Accordingly, for the reasons set out above, I will strike out the applicants' grounds of review that deal with flooding pursuant to section 75 of the VCAT Act, on the basis that they are misconceived and the applicants lack standing to raise them in this proceeding.

Can the applicants raise other specified concerns in this proceeding?

1. The other concerns raised by the applicants deal with:
   1. stormwater management and drainage;
   2. partial sealing of existing unsealed road;
   3. traffic safety;
   4. neighbourhood amenity/character;
   5. fencing;
   6. sewerage and water;
   7. subdivision; and
   8. lack of procedural fairness.
2. These concerns are expressed as follows in section 16 of the application for review form.
3. I will now extract the ground pertaining to each topic in order to show the applicants' concerns in relation to each topic.
4. Stormwater management and drainage:

1. At the end of these grounds, the applicants reserved the right to 'add to or amend' the reasons for objection.
2. Broadly with respect to the above, the applicants submit as follows:
   1. the applicants claim that at a meeting organised by the Council, the permit applicant agreed to pay for fencing. The applicants want any permit to be amended to include this agreement including an ability to agree on appropriate fencing colour;
   2. the applicants state that concerns regarding sewerage and water services will be addressed through Coliban Water; and
   3. the applicants state that concerns regarding lack of procedural fairness and natural justice have been raised directly with the Council.
3. At the second practice day hearing, the applicants stated that they will not pursue the grounds relating to fencing or the alleged lack of procedural fairness by the Council in this proceeding, on the basis that these matters will be dealt with elsewhere.
4. In terms of the concerns regarding sewerage and water services, the applicants stated they understand that their concerns might be addressed through Coliban Water but if their concerns can also be addressed in this proceeding, they wish for this to occur.

Submissions from the Council and the permit applicant

1. The Council submits that the grounds raised by the applicants that address the following topics should be struck out on the basis that they deal with matters that are outside of the jurisdiction of the Tribunal in this proceeding, as they are not relevant to the proposal:
   1. fencing;
   2. subdivision; and
   3. lack of procedural fairness.
2. As a consequence, the Council submits that the remaining grounds that the applicants can address are in respect of the following topics:
   1. stormwater management and drainage;
   2. partial sealing of existing unsealed road;
   3. traffic safety;
   4. neighbourhood amenity/character; and
   5. sewerage and water.
3. The Council submits that these remaining grounds can be considered in the assessment of the permission that is before the Tribunal in VCAT Application P315/2023.
4. Further, the ground that deals with stormwater management and drainage does not deal with flooding but instead considers the drainage of the Land and, as such, is cast more narrowly than flooding.
5. The Council submits that the grounds relating to fencing, subdivision and procedural fairness should be struck out of the applicants' application for review document in VCAT Application P315/2023.

1. The permit applicant submits that the starting point is that the only permission open to third party review is that sought under the GRZ. Then, one must look to the purposes and decision guidelines of the GRZ to determine what is relevant to the decision to be made.
2. The permit applicant agrees with the Council that the grounds relating to fencing, subdivision and procedural fairness should be struck out of the applicants' application for review.
3. However, the permit applicant contends that there are other grounds that should also be struck out on the basis that what appears to be of concern is the existing public infrastructure and not the development of the Land. These grounds relate to stormwater management and drainage, partial sealing of an existing unsealed road, traffic safety, and, sewerage and water.
4. As such, according to the permit applicant, the only issue that the applicants can pursue in their application is neighbourhood character.
5. The permit applicant submits that the applicants' remaining grounds should be struck out as misconceived.
6. In response to a question from the Tribunal, the permit applicant agreed that if the applicants could establish how the grounds that the permit applicant takes issue with relate to the proposed development of the Land and the permission required under the GRZ, those grounds might be relevant in this proceeding.

1. As the only permission before the Tribunal in this proceeding arises under the GRZ, it is only matters that are relevant to the assessment of that permission that can be addressed and taken into account in the determination of whether that permission should be granted.
2. The applicants no longer pursue their concerns regarding fencing and lack of procedural fairness in this proceeding. I will strike out these grounds, noting that I would have done this anyway given the issues that they have raised do not arise in the consideration of the permission under the GRZ.
3. I will also strike out the ground relating to subdivision, as no subdivision of the Land is being sought in this application; if such permission is sought at a later time, that application will be assessed then.
4. I agree with the Council and the permit applicant that neighbourhood character is clearly relevant to the permission sought under the GRZ.
5. When assessing a permission sought under the GRZ for multi-dwelling development, it may be relevant to consider:
   1. the adequacy and safety of road access in terms of, for instance, traffic movement, capacity and pavement construction;
   2. the potential impact on traffic; and
   3. how the development manages stormwater and drainage and how the property is serviced.
6. I share the concerns of the permit applicant as to the framing of the concerns regarding stormwater management and drainage, partial sealing of the existing unsealed road and traffic safety and whether these are raised in relation to the impact of the proposed development on those matters or whether they seek to correct what are perceived to be existing problems with public infrastructure. In saying this, it appears that some of those grounds do speak to concerns about the potential impact of the development on the existing situation.
7. Given the applicants are unrepresented, and having heard from the applicants, I think the preferable way forward is to provide the applicants with an opportunity to amend their grounds relating to those topics to better explain the relevance of those matters to the Tribunal's consideration of this development proposal on the Land. I have also extended that opportunity to the ground termed 'neighbourhood amenity' but which seems to go to the concept of neighbourhood character.
8. The applicants' ground relating to sewerage and water seeks to query how existing sewerage and water capacity will meet increased demand caused by the proposed development. This really is a question better addressed by Coliban Water. What would be taken into account in terms of the planning decision under the GRZ is whether the Land has mains sewerage and water available, which appears to be the case. Accordingly, I will also strike out this ground of review.
9. In summary, of the applicants' grounds of review:
   1. I will strike out the following grounds under section 75 of the VCAT Act on the basis that they are outside of the jurisdiction of the Tribunal in this proceeding:
      1. fencing;
      2. lack of procedural fairness;
      3. subdivision; and
      4. sewerage and water; and
   2. I will require the applicants to provide further and better particulars of the following grounds in order to better explain the way in which the applicants assert the proposed development will impact upon these matters:
      1. stormwater management and drainage;
      2. partial sealing of existing unsealed road;
      3. traffic safety; and
      4. neighbourhood amenity/character.

1. The purposes of the practice day hearing for this proceeding can be grouped as follows:
   1. whether the NCCMA has standing to bring this application under section 82AAA of the Act, which involves consideration of whether the NCCMA is a section 55 referral authority for this application;
   2. if the application was converted to an application brought under section 82 of the Act, whether the NCCMA can raise flooding issues;
   3. whether this application should be summarily dismissed; and
   4. depending on the answers to the above, matters of future conduct including whether this proceeding should be heard and determined at the same time as VCAT Application P315/2023.
2. I will deal with the first three matters and then will deal with the issue of future conduct for both proceedings.

1. The following are the grounds upon which the NCCMA brings this application:

1. As can be seen, all grounds relate to flooding although it could be said that grounds 1 and 2 also deal more broadly with climate change and more general risk to the environment.

Does the NCCMA have standing to bring this application under section 82AAA of the Act?

1. the Tribunal can determine if it has jurisdiction; 2. the question regarding jurisdiction arises as a direct consequence of the debate regarding the standing of the NCCMA: 1. if the NCCMA has standing, then there is jurisdiction for the Tribunal to hear this application under section 82AAA of the Act; 2. if the NCCMA does not have standing, then the Tribunal does not have that jurisdiction;

1. in order to determine if the NCCMA has standing, the Tribunal needs to determine whether the NCCMA is a referral authority;

1. in order to determine if the NCCMA has standing, the Tribunal needs to determine if the circumstances under clause 44.04-7 of the Scheme are met; 2. the words 'in the opinion of the responsible authority' used in clause 44.04-7 of the Scheme are not a hurdle for the Tribunal and the Tribunal needs to form its own opinion with respect to those matters; 3. the only technical assessment of requirements in the Campaspe LFDP, being that based on the NCCMA's assessment, shows clear failure to meet those technical requirements; and 4. the Tribunal ought to find that the NCCMA has standing to bring this proceeding under section 82AAA of the Act and the Tribunal has jurisdiction to hear this proceeding.
2. The NCCMA submits that it is necessary to examine and make findings about any jurisdictional facts said to be the basis of why there is no jurisdiction. The NCCMA submits that in doing so in this case, the Tribunal must necessarily examine whether the agreed requirements in the Campaspe LFDP are met.[22]
3. The NCCMA further submits:[23]

1. The NCCMA also submits that it cannot be held to what it said in the NCCMA Objection in terms of its acceptance of formal referral not being required under the Act. This is because:[24]

1. The NCCMA relies upon the Tribunal's decision in Metroll Victoria Pty Ltd v Wyndham CC[25] (Metroll), a case in which an enforcement order and an interim enforcement order was sought under the Act. In that case, a permit condition provided that the use must not 'in the opinion of the responsible authority' adversely affect the amenity of the locality. The responsible authority had not formed such an opinion initially but subsequently did so. In that case, the Tribunal found that was able to judge for itself whether the amenity of the locality was being adversely affected, notwithstanding the reference in the condition to this being 'in the opinion of the responsible authority'.
2. The NCCMA relied on Metroll to submit that the Tribunal in the present case is able to determine whether in the Tribunal's opinion the proposal satisfies the requirements of the Campaspe LFDP, and, by extension, whether the NCCMA must be referred the proposal under section 55 of the Act.
3. The NCCMA submits that the Tribunal can make a declaration pursuant to section 124 of the VCAT Act as to the standing of the NCCMA to bring VCAT Application P324/2023.
4. The NCCMA acknowledges that the second and third dot point requirements in clause 6.1 'Dwelling' of clause 6.0 'General Development Requirements for the LSIO and FO' of the Campaspe LFDP are met in the circumstances.
5. However, the NCCMA submits that the first dot point requirement in clause 6.1 is not met because the NCCMA considers that the new dwellings will obstruct natural flow paths and drainage lines. The NCCMA submits that there is no reasonable basis, or evidence, to conclude that the dwellings will not obstruct natural flow paths or drainage lines.
6. The NCCMA submits that the Tribunal now 'stands in the shoes of' the Council and that the Tribunal now needs to determine whether the proposal satisfies the requirements in the Campaspe LFDP.
7. The NCCMA also relied on other Tribunal cases in support of its view that the Tribunal should interrogate whether the NCCMA should have been referred this proposal under clause 44.04-7 of the Scheme. The NCCMA acknowledges that those cases arose in different factual circumstances and involved different provisions of the Act and planning scheme.
8. The NCCMA accepts that it may be open to it to seek a declaration under section 149B of the Act, however, the NCCMA has not done so at this point in time, stating that it would result in a delay of this proceeding and be an inefficient use of resources.
9. The NCCMA submits that if the Tribunal determines that the NCCMA does not have standing under section 82AAA of the Act to bring this proceeding, rather than summarily dismiss the proceeding the Tribunal should provide the NCCMA with 14 days to consider its position. In response to a question from the Tribunal as to the purpose of this request, the Tribunal was informed that this was to enable the NCCMA the opportunity to bring another form of proceeding, including possibly under section 149B of the Act, if it so wished.
10. If the NCCMA does not have standing under section 82AAA of the Act, the NCCMA seeks the Tribunal's leave to convert its application to one brought under section 82 of the Act. As to what could be considered by the Tribunal in that proceeding, the NCCMA submits:[26]

1. The Council submits that it has to be established that the NCCMA has standing to bring this application under section 82AAA of the Act. The Council submits that the source of the Tribunal's jurisdiction has not been identified to the requisite degree of precision, noting that the Tribunal is a creature of statute and cannot find jurisdiction where none exists.
2. Further, the Council points to the acknowledgement in the NCCMA Objection that formal referral to the NCCMA was not required under the Act. In this respect, in assessing the permit application, the Council did not refer the permit application to the NCCMA and explained its reasons in the Planning Assessment Report.[27]
3. The Council accepts that the Tribunal must interrogate its own jurisdiction in determining a proceeding.
4. The Council submits that clause 44.04-7 of the Scheme is clearly a procedural provision that establishes whether referral is required to the relevant floodplain management authority under section 55 of the Act. There is nothing in section 82 or 82AAA of the Act that suggests that these sections enable review of the Council's decision to not refer the application to the NCCMA, nor are they more broadly able to review other alleged procedural defects.
5. The Council observes that the cases relied upon by the NCCMA are predominantly concerned with original jurisdiction matters. Further, the Council distinguishes the cases relied upon based on their different factual matrices.
6. The Council relies on the analysis provided in Myers[28] in terms of what constitutes 'the decision' under review.
7. The Council submits that:[29]

1. The Council observes that the making of a declaration under section 124 of the VCAT Act in relation to this question would be made in the context of the proceeding brought under section 82AAA of the Act, and therefore the Tribunal may still be relevantly limited by the jurisdictional limits on such applications.

1. The permit applicant submits that the starting point for an application made under section 82AAA of the Act is to determine three jurisdictional facts:
   1. whether the NCCMA is a recommending referral authority for the purposes of the proposal at the time of the application;
   2. whether the NCCMA made an objection to the Council in that capacity; and
   3. whether the Council issued a notice of decision to grant a permit for the proposal.
2. In terms of the first jurisdictional fact, the NCCMA submits that by operation of clause 44.04-7 of the Scheme and the Council having formed the opinion that it was satisfied that the proposal met the requirements of the Campaspe LFDP, the NCCMA was not required to be referred the planning permit application under section 55 of the Act. As such, the NCCMA was not a recommending referral authority for the proposal.
3. As to the operation of clause 66.03 of the Scheme in light of clause 44.04-7 of the Scheme, the permit applicant submits:

1. In terms of the second jurisdictional fact, given the permit applicant's submission that the NCCMA is not a referral authority for the proposal, the objection that was made by the NCCMA in these circumstances was not made by a 'recommending referral authority'.
2. The permit applicant submits that the Tribunal cannot make a declaration under section 124 of the VCAT Act as sought by the NCCMA in the circumstances:[30]

1. In its submissions to the first practice day hearing, the permit applicant submitted that the application could be made under section 82 of the Act subject to the relevant exemptions to notice and review, including under clause 44.04-6 of the Scheme. The permit applicant also submits that grounds 4 to 6 of the NCCMA's statement of grounds ought be struck out.
2. In its submissions to the second practice day hearing, the permit applicant submits that the section 82AAA is misconceived and ought be summarily dismissed with costs.
3. In response to the NCCMA's request for additional time to possibly lodge another proceeding if the Tribunal finds that the NCCMA lacks standing to bring this proceeding, the permit applicant submits:[31]

1. I agree with the permit applicant that there are three jurisdictional facts that need to be satisfied for this application to be able to be made under section 82AAA of the Act.
2. Of these, clearly the third is satisfied as the Council has issued the NOD.
3. The answers to the first and second questions of jurisdictional fact lie in the wording and operation of clause 44.04-7 of the Scheme. This wording provides:

1. It is clear from the wording of this clause that:
   • planning permit application PLN280/22 must be referred to the relevant floodplain management authority for the Land, being the NCCMA, under section 55 of the Act, unless
   • in the opinion of the Council
   • the proposal satisfies the requirements or conditions of the Campaspe LFDP.
2. It is clear that the Council has formed the view that the proposal the subject of planning permit application PLN280/22 satisfies the requirements or conditions of the Campaspe LFDP.
3. As such, pursuant to clause 44.04-7 of the Scheme, planning permit application PLN280/22 is not required to be referred to the NCCMA under section 55 of the Act.
4. I agree with the permit applicant that to the extent that there could be said to be inconsistency between clause 66.03 of the Scheme, in requiring referral to the relevant floodplain management authority in its capacity as recommending referral authority, and clause 44.04-7 of the Scheme, in exempting that referral, that the Scheme must be read, so far as is practicable, to resolve that inconsistency. Given the exemption from the referral is contained in the very clause that is referenced in clause 66.03 of the Scheme as being the basis for the referral, it is reasonable for the referral requirement contained in clause 66.03 to be read in light of the exemption contained in clause 44.04-7.
5. Given this, the answer to the first question of jurisdictional fact is that the NCCMA was not a recommending referral authority for the purposes of the proposal at the time of the application because the Council formed the opinion that the proposal satisfied the requirements or conditions of the Campaspe LFDP, meaning that referral was not required under clause 55 of the Act.
6. In terms of the second question of jurisdictional fact, whilst the NCCMA lodged the NCCMA Objection with the Council, it expressly did so acknowledging that formal referral was not required under the Act.
7. However, even if it had not worded the NCCMA Objection in that way, the NCCMA still could not have lodged the NCCMA Objection in the capacity of a recommending referral authority. This is because whether the NCCMA was required to be referred the application was dependent upon the opinion that the Council formed regarding the matter in clause 44.04-7 of the Scheme. That is, whether the NCCMA was a recommending referral authority for the purposes of this proposal was dependent upon the opinion of the Council and not of the NCCMA. Hence, even if the NCCMA had purported to make the NCCMA Objection in its capacity as a recommending referral authority, if the Council had formed the opinion that the proposal satisfies the requirements or conditions of the Campaspe LFDP, the NCCMA was not a recommending referral authority for the proposal.
8. Accordingly, whilst the NCCMA lodged the NCCMA Objection with the Council, it did not and could not have done so as a recommending referral authority. As such, the second jurisdictional fact is also not met.
9. The effect of these answers is that the NCCMA does not satisfy the prerequisites to lodge an application under section 82AAA of the Act. That is, the NCCMA does not have standing to bring this application under section 82AAA of the Act.
10. I disagree with the NCCMA that the Tribunal in this application brought under section 82AAA of the Act either has the ability to assess whether the Council should have formed the opinion that it did, or, that the Tribunal is in a position to form its own view as to whether the proposal the subject of the application satisfies the requirements or conditions of the Campaspe LFDP.
11. I say this because this application under section 82AAA can only be brought by a recommending referral authority and as the NCCMA is not one in these circumstances, the NCCMA has no standing to bring this proceeding to the Tribunal in the first place. Accordingly, even if the Tribunal was able to undertake the enquiry the NCCMA suggests (which I do not accept it can do in this proceeding), there is no underlying proceeding within which this enquiry can occur.
12. I accept that the Tribunal has the ability to hear a proceeding up until the point that it is in a position to determine whether jurisdiction exists. An example of this is where an application will be processed and referred to a practice day hearing to consider whether grounds raised by an applicant are within the jurisdiction of the Tribunal to consider in that particular proceeding. The Tribunal has the jurisdiction to determine that question at the practice day, but if the Tribunal determines that there is no jurisdiction for the applicant to raise those matters, the proceeding is summarily dismissed.
13. This is what happened in terms of VCAT Application P315/2023: the proceeding was referred to this practice day hearing, I have made orders determining the extent of the Tribunal's jurisdiction, and those matters outside jurisdiction are being struck out.
14. However, this power does not extend to the Tribunal having the ability in this proceeding brought under section 82AAA of the Act to make a declaration under section 124 of the VCAT Act that referral of the underlying planning permit application PLN280/22 should have occurred under clause 44.04-7 of the Scheme, thereby creating the ability for the NCCMA to have standing to bring this application under section 82AAA of the Act in the first place. That is a different exercise.
15. The only decision that is being reviewed in an application brought under section 82AAA of the Act is the decision to issue a notice of decision to grant a permit. And this can only be reviewed in this type of proceeding if there is a recommending referral authority who objected to the permit application in its capacity as recommending referral authority. This is not the case here.
16. To the extent that the NCCMA relies upon Metroll, that case is distinguishable from the current case for two main reasons.
17. First, Metroll was a case brought in original jurisdiction where there was not a similar question at play as to the standing of the applicant. That is, there was no question as to whether the applicant in Metroll had standing to bring that proceeding.
18. Second, Metroll involved an application for interim enforcement order and associated application for enforcement order, which are different in nature to the review proceeding in section 82AAA. In proceedings of that nature, the Tribunal is empowered to make orders that, whilst not intending to punish a respondent, can have the effect of being disadvantageous or even perhaps punitive. As such, these proceedings can result in serious consequences for a respondent. The Tribunal does not make these orders lightly. In this context, it is necessary for the Tribunal to satisfy itself whether a breach has occurred. Where the alleged breach is of a condition that needs to be either done to the satisfaction of the responsible authority or requires that something must or must not exist in the opinion of the responsible authority, it is appropriate for the Tribunal to form a view as to whether that condition has been met and not to just accept what is said by one of the parties.
19. Metroll involved the Tribunal's consideration as to whether there was a serious issue to be tried in the context of an interim enforcement order; namely, whether there was a breach of the relevant condition the planning permit to found the enforcement order application. When the Tribunal considers whether there is a serious issue to be tried in an interlocutory proceeding such as Metroll, it needs to turn its mind to whether on the basis of the material before it at that time, it is arguable that there is a breach and the breach is not spurious or fanciful.
20. In Metroll, where the condition provided that the use must not 'in the opinion of the responsible authority' adversely affect the amenity of the locality, it was appropriate for the Tribunal to form its own view as to whether the facts before it meant that the amenity of the locality was adversely affected, irrespective of who brought the application for enforcement order and what the responsible authority's opinion on that matter might be.
21. In Metroll, the Tribunal remarked upon it being an 'inherent aspect of the Tribunal's jurisdiction relating to enforcement orders to make findings about whether the substance of a permit condition (for example) has been breached'.[32] The other comments made by the Tribunal in Metroll need to be understood in light of the particular type of case it was and the task of the Tribunal in such a proceeding.
22. For these reasons, I do not regard what was said in Metroll to be of assistance in this proceeding.
23. To the extent that the NCCMA contends that if the NCCMA is not a referral authority under clause 44.04-7 of the Scheme that the NCCMA would be shut out of the decision making process and deprived of any right of review under the Act, this is a consequence of the operation of this very provision.
24. It was clear from the wording of both the Explanatory Report for Amendment C49 and the Panel report for Amendment C49 that the NCCMA and GBCMA were seeking to reduce both unnecessary permit requirements and the number of planning application referrals. The present case is an example of this occurring. And whilst I accept that Amendment C49 did not introduce clause 44.04-7 into the Scheme, but rather, updated the Campaspe LFDP, the updating of the Campaspe LFDP occurred with the stated intention of reducing the need for referrals for certain buildings and works.
25. If the operation of clause 44.04-7 of the Scheme and the current version of the Campaspe LFDP in the present circumstances is an unintended consequence of this system, then this is a matter for the NCCMA to rectify in ways other than via this proceeding. In light of the content of the NCCMA Objection, it appears that other action is being taken in this respect in any event.
26. For all of these reasons, I find that the NCCMA does not have standing to bring this application under section 82AAA of the Act.

If the application was converted to a section 82 application, could the NCCMA raise flooding issues?

1. In the event that I find that the NCCMA does not have standing to bring the application under section 82AAA of the Act, the NCCMA seeks to convert VCAT Application P324/2023 to an application brought under section 82 of the Act.
2. The Tribunal has the power to make such an order pursuant to section 127 of the VCAT Act. It has been said that this power exists to enable the Tribunal to amend documents in a proceeding where it is just and appropriate to do so.[33] The Tribunal holds a discretion as to whether it will amend any document in a proceeding.
3. In the present case, the NCCMA seeks to convert this application to one that it has standing to bring, given that it lodged the NCCMA Objection with the Council.
4. I agree with the NCCMA that it could bring an application under section 82 of the Act and that I could convert VCAT Application P324/2023 to an application brought under section 82 of the Act.
5. However, my concern in doing so involves what would be the subject of the objections raised by the NCCMA in such a proceeding.
6. It is clear from the content of the NCCMA Objection that its concerns relate to the flood incidence for the Land, the flood risk posed by the Land, the flood management of the Land and the potential risk to persons and property if a flood event occurred. Further, the NCCMA cites concerns regarding the potential added burden placed on emergency response agencies as a consequence of 16 dwellings being located on the Land.
7. I have made detailed comments above in relation to VCAT Application P315/2023 and the ability, or lack thereof, of the applicants in that proceeding to raise flooding concerns in their section 82 application for review.
8. I will not reiterate those comments but provide the following summary that applies to this proceeding, VCAT Application P324/2023, if it was converted to an application brought under section 82 of the Act:
   1. of the three permissions sought for the proposal, it is only the permission under the GRZ that would be before the Tribunal for review;
   2. given the Land is in the LSIO, the assessment of floodplain management and flooding risk occurs under the LSIO, including the application of State and local planning policy in the Scheme (including via clauses 02.03-3, 13.01-1S, 13.03-1S and 13.03-1L), clause 65 of the Scheme and section 60(1)(e) of the Act that relates to floodplain management;
   3. the permission sought under the LSIO is not available for review under section 82 of the Act and the approval of that permission is taken to be a matter that has been 'established', in terms of the assessment of this proposal overall;
   4. as the LSIO 'covers the field' with respect to floodplain management of areas identified for inclusion in the LSIO, State and local planning policy in the Scheme, clause 65 of the Scheme and section 60(1)(e) of the Act that relates to floodplain management will not be taken into account in assessing the permission sought under the GRZ;
   5. in the event that I am wrong with respect to the LSIO 'covering the field' with respect to flooding matters, it would need to be established that the policy provisions of the Scheme dealing with floodplain management, along with clause 65 of the Scheme and section 60(1)(e) of the Act, were relevant to the development permission sought under the GRZ. Relevance is to be established through consideration of the purposes of the control being assessed and the decision guidelines for that control;
   6. none of the purposes of the GRZ are directed at flood risk, floodplain management or flooding issues;
   7. none of the decision guidelines of the GRZ are directed at flood risk, floodplain management or flooding issues;
   8. I acknowledge that clause 65 of the Scheme and section 60(1)(e) of the Act could conceivably incorporate consideration of flood risk and flood management. However, the reason for looking at these matters is to guide the decision that needs to be made by the Tribunal under, in this case, the GRZ. That decision under the GRZ is made through the lens of the purposes of the GRZ;
   9. it cannot be the case that effectively the same issues with regards to flood risk and flood management can be taken into account in the assessment of permission sought under the GRZ, through the application of clause 13.03‑1S, 13.03-1L and clause 65 of the Scheme and section 60(1)(e) of the Act as are taken into account in assessing a permission sought under a specific flood overlay, such as the LSIO;
   10. if this were so, then this would result in a decision-maker taking into account specialised and potentially technical matters under a more generalised zone permission, where the decision guidelines in the zone are not directed at such assessment; and
   11. such an approach would also effectively provide third parties with a 'back door' to be involved in the assessment of these matters through, in this case, a development permission under the GRZ when those persons are not able to address those matters via the specific provision that deals with it, namely the LSIO, due to the exemption in the Scheme. This cannot be correct.
9. As such, given the operation of clause 44.04-6 of the Scheme, notwithstanding the expertise of the NCCMA in this arena, the NCCMA will be similarly constrained as the applicants in not being able to address flooding in the proceeding were it converted to an application brought under section 82 of the Act.
10. The NCCMA submits that it can address flood issues through the GRZ permit trigger and clause 65 of the Scheme, as they relate to the availability of safe access routes to the Land.
11. A similar argument was put in Clifftop. In that case, it was argued that concerns about access to the land during a bushfire could be taken into account through the Farming Zone permission via State planning policy and clause 65 of the Scheme, notwithstanding that assessment of the permission required under the Bushfire Management Overlay, which was not open to third party involvement, would take into account access to the land as it relates to bushfire.
12. Similar to the approach in Clifftop, issues such as access to the Land would have been taken into account in, in this case, the Council's assessment of the LSIO permission, which is now established. Because the LSIO 'covers the field' with respect to the assessment of flood issues, and the access to the Land as it relates to flood risk and flood management, would have been assessed in consideration of that permission, it is not now open to assessment through the GRZ permission. It is not appropriate to provide a 'back door' for parties who were not able to agitate flooding issues via the specific provision that deals with flooding - that is, the LSIO - to now argue that flooding issues will affect access to the Land through consideration of the development permission required under the GRZ.
13. When I consider the NCCMA's grounds of review, whilst they vary in their focus, at their heart they all relate to flooding concerns. This is understandable given the NCCMA's expertise.
14. If I was to exercise my discretion to allow the application to be converted to one brought under section 82 of the Act, it would need to be on the basis that flooding issues were not raised by the NCCMA. In the circumstances of what is the entire focus of the NCCMA Objection, the NCCMA's grounds of review and its submissions to the Tribunal, I regard this to be implausible. Even the first two grounds of review that raise the Council's key strategic directions and the natural hazard State planning policy do so in the guise of dealing with flooding concerns.
15. For these reasons, I decline to convert VCAT Application P324/2023 to an application brought under section 82 of the Act.

Should VCAT Application P324/2023 be summarily dismissed?

1. In the circumstances where:
   1. I have found the NCCMA does not have standing to bring this application under section 82AAA of the Act; and
   2. I decline to convert VCAT Application P324/2023 to an application brought under section 82 of the Act,

it is appropriate to summarily dismiss VCAT Application P324/2023 pursuant to section 75 of the VCAT Act on the basis of it being misconceived.

1. The NCCMA sought time between the Tribunal making a decision on standing and any final action, such as summary dismissal. I agree with the permit applicant that the NCCMA has had sufficient opportunity between the adjournment of the first practice day hearing and the date of the second practice day hearing to lodge other proceedings. The NCCMA chose not to do so. This was in circumstances where the NCCMA, through its own submissions, was aware of the other types of proceedings that it could lodge, and has not done so.
2. In such circumstances, it would be unfair to the other parties, and unreasonable, to unduly protract this process by deferring consideration of summary dismissal to a third practice day hearing.
3. In any event, given my findings regarding standing and declining the conversion of this proceeding, there is no other option but to summarily dismiss this application. As such, deferring consideration of the summary dismissal to a further practice day hearing would only be deferring the inevitable.
4. I have reserved costs, as sought by the permit applicant.

1. I now return to the purposes of the practice day hearings that deal with future conduct.
2. With the summary dismissal of VCAT Application P324/2023, there is no need to consider that proceeding any further.
3. VCAT Application P315/2023 is referred to a compulsory conference and a two-day hearing in accordance with these orders.
4. I have made an order striking out certain of the applicants' grounds in VCAT Application P315/2023 and providing them with an opportunity to file and serve amended grounds that better explain their concerns with respect to particular topics as they relate to the permission sought in planning permit application PLN280/22.
5. These amended grounds can be discussed at the compulsory conference, scheduled for 25 July 2023.

[1] The submissions of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] Campaspe Shire Council Planning Assessment Report, 30 January 2023 (reviewed 3 February 2023), 2.

[4] Objection to Council by David and Jodi Ujimoto, 30 November 2022.

[5] Campaspe Shire Council Planning Assessment Report, 30 January 2023 (reviewed 3 February 2023), 3.

[8] [2005] VCAT 224.

[10] Campaspe Planning Scheme Amendment C49 Floodplain Management Panel Report, 1.

[11] Campaspe Shire Council Planning Assessment Report, 30 January 2023 (reviewed 3 February 2023), 4.

[13] Letter from NCCMA to Council, 6 December 2022, 1.

[14] Campaspe Shire Council Planning Assessment Report, 30 January 2023 (reviewed 3 February 2023), 16.

[15] [1947] EWCA Civ 1; [1948] 1 KB 223.

[16] Joint Applicants submission, [51].

[17] (Red Dot) [2022] VCAT 695.

[18] [2023] VCAT 201.

[19] For a discussion as to how the third party exemption operates in the context of the analogous BMO exemption, refer to Clifftop at [120]-[148].

[20] For a discussion as to the BMO and how that provision 'covers the field' with respect to assessment of bushfire hazard assessment and management for areas of extreme bushfire hazard, refer to Clifftop at [247]-[255].

[22] Further submission on behalf of North Central Catchment Management Authority, 25 May 2023, [23].

[25] [2007] VCAT 748.

[26] Outline of submission on behalf of North Central Catchment Management Authority, 12 May 2023, [35].

[27] Campaspe Shire Council Planning Assessment Report, 30 January 2023 (reviewed 3 February 2023), 4.

[28] Myers, [70]-[73], [75]-[76].

[29] Submission on behalf of the Responsible Authority, 30 May 2023, [19].

[30] Respondent's Outline of Submission on Practice Day Hearing, 9 May 2023, [8]-[13].

[31] Respondent's Outline of Submissions on Second Practice Day Hearing, 30 May 2023, [21].

[33] Woodcock v Northern Grampians SC [2005] VCAT 1813, [5].