1. Clause 53.02-4 contains the Bushfire protection objectives that apply to the proposal. Under each of the following headings are objectives and associated Approved measures:
   1. 53.02-4.1 'Landscape, siting and design objectives';
   2. 53.02-4.2 'Defendable space and construction objective';
   3. 53.02-4.3 'Water supply and access objectives'; and
   4. 53.02-4.4 'Subdivision objectives'.[10]
2. The Landscape, siting and design objectives are:

1. The Defendable space and construction objective is:

1. Clause 53.02-4.5 contains Decision guidelines that apply to the proposal. They are:

1. Clause 13.02-1S 'Bushfire Planning' has the objective:

1. This clause is required to be applied as follows:

1. The word 'or' at the end of the second bullet point is disjunctive and thus, clause 13.02-1S is relevant to all planning and decision making under the Act if the land in question meets at least one of the three limbs specified. I note that the reference to 'all planning and decision making' would include decisions of both responsible authorities and planning authorities.
2. However, as will be explained below, consideration of clause 13.02-1S for a permit application will vary in each case depending on the nature of the applicable permit triggers, particularly if the land in question is subject to a BMO.
3. Whether land is in a designated BPA or subject to a BMO is able to be discerned by mapping.[11]
4. However, in the absence of a BPA or BMO applying to land, whether the third limb applies requires a qualitative assessment of its context. In my view, the third dot point directs consideration to the impact on the site and surrounding land, in that the policy is to be applied in all planning and decision making under the Act having regard to the impact that the proposed use and development of the Land might have on the site and the surrounding land in a way that may create a bushfire hazard.
5. As such, clause 13.02-1S looks both inward and outward: it deals with both the risk posed to the proposed use and development of the Land by the landscape context that the Land finds itself in, as well as the risk to the site and the surrounding land as a consequence of a proposed use or development on the Land that may create a bushfire hazard.
6. Clause 13.02-1S specifies strategies in the categories of:
   1. Protection of human life;
   2. Bushfire hazard identification and assessment;
   3. Settlement planning;
   4. Areas of biodiversity conservation value;
   5. Use and development control in a Bushfire Prone Area.
7. Under 'Policy guidelines' it states:

1. We were referred to Planning Advisory Note 68 - Bushfire State Planning Policy Amendment VC140 (DELWP, 2018) ('Advisory Note') for the explanation that it provides regarding the planning scheme amendment that, as described in the Advisory Note:

...amended the State Planning Policy Framework (SPPF) to provide directive strategies to manage bushfire risk in planning and decision making.

1. At the Tribunal's request, we were also taken through the Explanatory Report and marked up version of clause 13.02-1S for Amendment VC140.

1. The Tribunal received submissions from the following parties regarding this matter: the Applicant, the Council, the CFA, Mark Considine, Jeremy Whitehead, Debra & Gerry Rauber, Linda Hancock, Kenneth Mansell, John Stockfeld, Melinda Sheard, and, Carolyn Whitehead.

1. The Applicant submits that, having regard to the fact that there are no third party appeal rights under the BMO, the Tribunal should not entertain submissions from the Respondents in relation to bushfire matters.
2. The Applicant submits that the FZ does not contain any purposes or decision guidelines that relate to bushfire.
3. It is the Applicant's position that because a permit is required under the BMO, bushfire policy matters under clause 13.02-1S that would otherwise be considered in the assessment of other permissions required under the Scheme are properly taken into account when determining whether to grant permission under the BMO. It stated:

2.10 The significance of the application of a BMO in relation to the policy at clause 13.02-1S is that in a bushfire prone area there will generally not be a permit trigger specifically relating to bushfire, but the Tribunal is required by policy to consider bushfire risk. Unlike the situation in a BMO, the guidance as to how that discretion should be exercised is not found in the Planning Scheme, but in "any applicable approved State, Regional and Municipal Fire Prevention Plan".

2.11 Unlike the situation when land is in a bushfire prone area (which is primarily a matter that is relevant to dealing with bushfire risk under the Building Act 1993), clause 44.06 sets out, in conjunction with clause 53.02, a detailed set of criteria against which bushfire risk to be assessed.

2.12 The purposes of clause 44.06 reflect the objective and strategies of clause 13.02-1S. To achieve its purposes, clause 44.06 sets out permit triggers, which are essentially require a permit for all urban uses including accommodation, community facilities, offices, industry and retail.

2.13 The clause sets out detailed application requirements which relate to the bushfire hazard identification and assessment part of clause 13.02.

2.14 Clause 44.06-4 requires an application to meet the requirements of Clause 53.02.

2.15 Thus, clause 44.06 addresses each part of clause 13.02-1S being:

• Its Objectives
• Its Strategies, which address:
  • Protection of Human Life
  • Bushfire Hazard Identification and Assessment
  • Use and Development Control in a Bushfire Prone Area

1. The Applicant submits that as the Respondents do not have any review rights under the BMO, and because clause 53.02 is only relevant to an application for planning permission under the BMO, the Respondents do not have any third-party rights in relation to the question of whether or not the requirements of clause 53.02 are met.
2. The Applicant submits that it would be illogical for the Respondents to be able to address the Tribunal on compliance with the policy at clause 13.02‑1S in such circumstances, because it is through the BMO and clause 53.02 that the objective and permit-related strategies of clause 13.02-1S are met. The Applicant submits that the content of clause 13.02-1S provides further detail for the exercise of discretion under the BMO.
3. The Applicant further contends, that where a permission is required under the BMO, the appropriate place to take bushfire matters and clause 13.02-1S into account is through the BMO, other than the aspect of clause 13.02-1S that looks to the impact on the surrounding land as a consequence of a proposed use or development on the subject land that may create a bushfire hazard. The Applicant says that this is because when a BMO permission is required, the BMO 'covers the field' in terms of bushfire issues that are focused on the impact to the subject land from its location and it is not appropriate to seek to deal with those bushfire issues through another permission.
4. By contrast, the Applicant says that the BMO does not deal with the aspect of clause 13.02-1S that looks to the impact on the surrounding land as a consequence of a proposed use or development on the subject land that may create a bushfire hazard; that is, the third limb in clause 13.02-1S. The Applicant contends that the Respondents can make submissions as to whether the proposal will present a bushfire risk to surrounding properties, given that the effect that a use or development may have on the environment is a specific consideration under section 60(1)(e) of the Act.
5. The Applicant submits that the CFA is able to make submissions on all bushfire matters given its role and function as the specialist referral authority with respect to bushfire.
6. The Applicant referred to the Latin maxim 'generalia specialibus non derogant' - that a specific statement prevails over a broader, conflicting statement - in support of the proposition that where a bushfire matter is dealt with by the BMO, it is not appropriate to seek to deal with it through policy applied in decision-making for a more general planning permission.
7. The Applicant also referred to section 7(4) of the Act. Section 7 'Structure of planning schemes' deals with the content of planning schemes. Section 7(4) of the Act provides:

If there appears to be an inconsistency between different provisions of a planning scheme -

(a) the scheme must, so far as practicable, be read so as to resolve the inconsistency; and

(b) subject to paragraph (a) -

(i) the State standard provisions prevail over the local provisions; and

(ii) a specific control over land prevails over any strategic plan, policy statement, code or guideline in the planning scheme.

1. The Applicant contends that the BMO is a specific control over land whereas clause 13.02-1S is a policy statement. The Applicant contends that there is no inconsistency between the BMO and clause 53.02, and clause 13.02-1S; rather, these clauses provide the detail to fill in the policy of clause 13.02-1S. However, to the extent that there might be an inconsistency, section 7(4) means that the specific control will prevail over a policy statement.
2. The Applicant agreed that clause 13.02-1S was appropriately taken into account in assessing the permissions sought under the FZ. Given the Applicant's other submissions, I understood this to be a reference to taking the third limb of clause 13.02-1S into account when assessing the permission under the FZ and in this way, the Respondents could make submissions regarding whether the proposal will present a bushfire risk to surrounding properties.

1. The Council submits that the Respondents are able to make submissions under the BMO because this is a review proceeding that is not brought under section 82 of the Act, being the proceeding type that is referenced in the exemption contained in clause 44.06-7 of the Scheme.
2. The Council distinguishes the Tribunal's decision in West Valentine Pty Ltd v Stonington CC[12] ('West Valentine') on the basis that the decision was made in the context of permission only being sought under a provision that was exempt from third party notice and review rights.
3. The Council says that it gave notice under four of the five permit triggers, in accordance with the Scheme and the Act, albeit under a single written notice.
4. The Council submits that in circumstances where notice of the application for review was given under four of the five permissions, the effect of section 83A of the Act falls away because notice of the application was given to objectors.
5. Further, the Council submits that the Respondents can also make submissions in relation to fire risk under other provisions of the Scheme, such as clauses 13.02-1S, 53.02 and 65.
6. The Council submits that arguably the Land meets all of the dot points for which clause 13.02-1S is to be applied.
7. The Council submits that it is not correct to say that the BMO 'covers the field' with respect to bushfire matters, contending that clause 13.02-1S also deals with bushfire as does clause 65.01 in its reference to:

the degree of...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.

1. As such, there is nothing to preclude any Respondent from referring to the policy contained in clause 13.02-1S with respect to all permissions that are before the Tribunal, including the BMO.
2. Further, under the strategy 'Bushfire hazard identification and assessment' the Council points to the last dot point as indicating a holistic assessment of bushfire was intended, not just under the BMO:
   • Not approving development where a landowner or proponent has not satisfactorily demonstrated that the relevant policies have been addressed, performance measures satisfied or bushfire protection measures can be adequately implemented.
3. The Council also points to the first purpose of the FZ - to implement the Municipal Planning Strategy and the Planning Policy Framework - as bringing in consideration of clause 13.02-1S. In addition, the decision guidelines of the FZ enable consideration of clause 13.02-1S through its reference to clause 65 and that this was appropriate in light of the Land's interface with the Hepburn Regional Park.
4. The Council submits that the policy in clause 13.02-1S is different to other policy in the Scheme due to the heightened importance given to bushfire matters, including through clause 71.02-3 of the Scheme.

1. The CFA contends that the exemptions from notice and review contained in the BMO do not constrain the CFA or any Respondent because those constraints only apply to an objector appeal under section 82 of the Act. The CFA says that the absence of a reference to section 79 is critical and that the provision must be referenced for the exemption to extend to such a proceeding.
2. The CFA distinguishes this situation from that discussed in cases such as Brunswick Investment Project Pty Ltd v Moreland City Council[13] ('Brunswick Investment'), Viva Energy Australia v Greater Geelong City Council,[14] and Myers v Southern Grampians Shire Council,[15] where an objector's entitlement to bring the review proceeding was a live issue and limited by section 82(3) of the Act.
3. As did the Council, the CFA observed that given the multiple permit triggers involved in this case, the Respondents were given notice of this application for review notwithstanding that they were not entitled to notice under the BMO. The CFA submits that section 83A of the Act only applies where there is a single permit trigger that exempts notice and review rights. The CFA also distinguishes West Valentine on this basis.
4. The CFA also referred to clause 71.02-3 of the Scheme and the prevalence that it directs be given to bushfire matters in the process of integrated decision making under the Scheme.
5. The CFA submits that the Respondents can also make submissions in relation to fire risk under other provisions of the Scheme, including clauses 13.02-1S and 53.02.

1. Below I go over the key points raised by those objectors who made submissions on this matter, noting that I have sought to avoid repetition where several parties addressed the same point.

1. Mr Considine relied upon the exemption provision in the BMO not referring to applications made under section 79 of the Act and that to read the exemption provision as if it applied to such an application would be to read words into the provision, which should not be done. Mr Considine says that there is good reason a section 79 application is not exempted, this being that no decision has been made by the Council and thus the objector's interests would not have been considered in the decision.
2. Given there are other permissions that are open to third party participation, Mr Considine is of the view that there needs to be a comprehensive view taken of the proposal including all permissions open to submissions by all parties, rather than the artificial separation of the permissions.
3. Mr Considine explained that objectors have concerns regarding the proposal's compliance with construction standards under the BMO and clause 53.02 and should be able to make submissions and ask questions of Mr Allen, the Applicant's expert, regarding these matters. In addition, he is concerned that the campers might pose a fire risk to surrounding properties.
4. Overall, Mr Considine says that it would severely impact the objector's interests if they could not make submissions regarding the BMO and bushfire matters in this context.

1. Mr Whitehead agrees with what was said by the Council and the CFA.
2. Mr Whitehead relied on sections 84A and 84B of the Act, stating that objectors were not restricted to what is contained in their statement of grounds in any event and that there are broad matters for the Tribunal to take into account.
3. Further, the BMO merely requires management solutions to manage the risk rather than a consideration of the appropriateness of the use and location of the Land.
4. Mr Whitehead says to extend the BMO third party exemption to this proceeding would be an abuse of the exemption.

1. The Raubers say that their objection has always been predominantly on the basis that the proposal poses a bushfire risk to the community and infrastructure.
2. The Raubers understand that the Tribunal is a place where residents can have their say about proposals and it doesn't seem fair or right if they cannot have their say about bushfire matters. This is especially given their long period of residence in the area and their active involvement in the local CFA over the years. They are genuinely concerned for their safety and that of people who are glamping on the Land.

1. Ms Hancock agrees with what was said by the Council and the CFA.
2. Ms Hancock is concerned about the threat to persons who will be on the Land due to bushfire risk, largely because the structures are not constructed in a way that makes them safe in a bushfire.
3. Ms Hancock is concerned about the threat to her and others posed by persons using the Land.

1. Mr Mansell explained that he feared the prospect of one day dying from a bushfire and that this fear extended to the lives of persons staying on the Land as well as for others in the community. He is concerned that persons will light fires on the Land and cause a bushfire that will endanger the wider community.

1. Mr Stockfeld submitted that the BMO only seems to go to a few technical matters and that there is so much more involved in assessing bushfire risk.
2. He suggests that it is a multi-faceted question of where to draw the line and that there are blurred boundaries that are difficult for lay people to understand.

1. Mr Hayden appeared on behalf of Melinda Sheard. Mr Hayden stated that the BMO is not a use control but instead a development control. As such, to the extent that clause 13.02-1S requires consideration be given to the appropriateness of the proposed use from a bushfire perspective, this is to be taken into account in assessing the use permission under the FZ.
2. Mr Hayden held concerns about the wording used in the Advisory Note, especially the use of the word 'control' along with its use in clause 13.02‑1S on the basis that policy is not a control.
3. Mr Hayden said that there was no doubt that the content of the Advisory Note went to matters included in the BMO.
4. Mr Hayden accepted that Respondents in this case, including his client, could not make submissions in relation to the BMO trigger due to the effect of the exemption contained in the BMO.
5. However, Mr Hayden submitted that the Respondents had full rights to make submissions regarding the proposed use of the Land under the FZ and under the other permissions sought. Mr Hayden submitted that access to land is often a key consideration when considering a use permission being sought in relation to land. He suggested that there might be an overlap in this case between the BMO/clause 53.02 and whether access is appropriate under the FZ. He says that the Respondents have a legitimate right to make submissions regarding access to the Land and that the buildings and works permission required under the BMO, and the consideration of that permission, does not deal with access to the Land via the public realm.
6. Mr Hayden disagrees with the Applicant's contention that if the BMO and clause 53.02 are met that clause 13.02-1S is also met and pointed to the Tribunal's comments in Department of Environment, Land, Water and Planning v Yarra Ranges SC[16] ('DELWP case') in support of his proposition. He submits that bushfire assessment is more complex than just 'ticking the boxes' in the BMO and clause 53.02.
7. Mr Hayden also pointed to clause 65.01 and its consideration of 'the degree of...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' as to the ability to give consideration to the bushfire risk to the Land as well as the external impact from what is happening on the Land.
8. Mr Hayden contended that the Respondents could make submissions regarding clause 13.02-1S with respect to the permissions other than the BMO with which they can be involved.

1. Ms Whitehead submits that an integrated approach to decision-making means that Respondents should be able to participate in all matters relevant to the application.
2. Ms Whitehead considers that the Council has ignored the provision in the Scheme preventing notice being given of the application under the BMO and, as such, it is open to the Tribunal to also ignore that provision.
3. Ms Whitehead submits that because the Respondents are parties to the proceeding, they can make submissions about all matters, including bushfire risk.
4. Ms Whitehead emphasised the importance of community involvement in decision-making and that she does not believe that the Scheme or the Act precludes or should preclude community involvement in discussion of bushfire matters.
5. Ms Whitehead referred to the Tribunal's power under section 60 of the VCAT Act to join a person as a party and sought for this to be exercised.
6. As an alternative, if the Respondents cannot be a party to the proceeding in terms of bushfire risk, Ms Whitehead asked the Tribunal to make orders similar to those that were made in Terminals PL v Greater Geelong CC[17] ('Terminals') but instead requiring the Council to incorporate community submissions into its submission. Ms Whitehead wants this to be ordered by the Tribunal, rather than left to the discretion of the Council, because this will guarantee that the community will be able to make submissions regarding bushfire risk.

1. There are several limbs to the question of law posed by the Tribunal:
   1. What is the effect of the exemption contained in clause 44.06-7 of the BMO upon the involvement of third parties in the consideration of the permit trigger under the BMO in this proceeding?
   2. What is the effect of the exemption contained in clause 44.06-7 of the BMO upon the involvement of third parties in the consideration of bushfire risk pursuant to other clauses of the Scheme in the consideration of permit triggers for the proposal other than the BMO?
   3. If the exemption applies to third party involvement in this proceeding, should the Tribunal nevertheless hear from third parties with respect to bushfire related matters to which third parties are not entitled to make submissions?
2. I deal with each of these in turn.

**_What is the effect of the BMO exemption in this proceeding as regards the BMO permit trigger?

1. The BMO is the overlay that applies to bushfire areas that are subject to extreme bushfire behaviour.[18] In its capacity as an overlay, the BMO controls buildings and works associated with the development of a site. Its purposes speak to ensuring that development of land prioritises the protection of human life and strengthens community resilience to bushfire, and is only permitted where the risk to life and property from bushfire can be reduced to an acceptable level. Its purposes also state that it is to identify areas where the bushfire hazard warrants bushfire protection measures be implemented.
2. I agree with the Applicant and Ms Sheard that third parties cannot make submissions regarding the permit trigger under the BMO. This is because of the system of notice, decision and review rights created under the Act and the way this operates when an exemption worded like that in the BMO is in place. I discuss this below.

1. A permit application under the BMO is required to be referred to the CFA.
2. However, pursuant to clause 44.06-7 a permit application is not to be referred to third parties. This is the effect of the words:

An application is exempt from the notice requirements of section 52(1)(a), (b) and (d)...

1. Section 52(1)(a), (b) and (d) of the Act provide as follows:

(1) Unless the responsible authority requires the applicant to give notice, the responsible authority must give notice of an application in a prescribed form -

(a) to the owners (except persons entitled to be registered under the Transfer of Land Act 1958 as proprietor of an estate in fee simple) and occupiers of allotments or lots adjoining the land to which the application applies unless the responsible authority is satisfied that the grant of the permit would not cause material detriment to any person; and

(b) to a municipal council, if the application applies to or may materially affect land within its municipal district; and

...

(d) to any other persons, if the responsible authority considers that the grant of the permit may cause material detriment to them.

1. This is the section under which notice of a planning permit application is given to a third party who owns land adjoining the Land, or who is a municipal council (other than the responsible authority), or to any other person if the Council considers that the grant of the permit may cause material detriment to them.
2. Section 52(4) of the Act provides that:

(4) A planning scheme may exempt any class or classes of applications from all or any of the requirements of subsection (1) except paragraphs (ca) and (cb).[19]

1. Clause 44.06-7 is one such provision of the Scheme that exempts applications under the BMO from the requirements of section 52(1) of the Act.
2. The effect of the exemption from notice is that third parties are not entitled to be given notice of a permit application made under the BMO.
3. That is not to say that third parties might not become aware of the application made under the BMO; it is just that they are not entitled to notice of that application. Whether a person is or is not entitled to notice has downstream consequences for that person's rights in relation to that permit application.
4. In the present case, the proposal requires and comprises five applications for planning permit under five separate permit triggers in the Scheme:
   1. the FZ - for use;
   2. the FZ - for development;
   3. the BMO - for development;
   4. the ESO1 - for development; and
   5. clause 52.05 - for business identification signage.
5. For each of those permit triggers other than the BMO, third parties were entitled to be given notice in accordance with the terms of section 52(1) of the Act.
6. The Council gave notice of the proposal in one document. I understand that document did not specify the permit triggers under which notice was being given. Irrespective, the Council agreed that it gave notice only under the four permit triggers for which third parties were entitled to be given notice and that, as such, the Council had given notice in accordance with the Act and the Scheme.
7. In effect, what the Council did was to give four notices for the proposal, one for each of the permit triggers for which third parties were entitled to be given notice, albeit all in the one written notice.
8. Section 57(1) of the Act provides that:

Any person who may be affected by the grant of the permit may object to the grant of a permit.

1. 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.[20]
2. However, where no notice is required to be given under section 52(1) or under the Scheme,[21] the responsible authority is not required to consider any objection or submission received in respect of the application before deciding the application.[22]

1. If persons who were entitled to object did so and, hence, there are 'objectors' to a permit application, then pursuant to section 64(1) of the Act the responsible authority:

...must give the applicant and each person who objected under section 57 a notice in the prescribed form of its decision to grant a permit.

1. Sections 64(2) and (3) require the notice to set out any permit conditions and deal with the timeframe for issuing any resulting permit, respectively.
2. What is issued in such instance is the 'Notice of Decision to Grant a Permit' ('NOD').
3. This is the 'decision' that is referenced in the exemption contained in clause 44.06-7 of the BMO:

...the decision requirements of section 64(1), (2) and (3)...

A planning scheme may set out classes of applications the decisions on which are exempted from the requirements of subsections (1), (2) and (3).

If a planning scheme exempts a decision on an application from the requirements of subsections (1), (2) and (3), the responsible authority must give a copy of the decision to each person who objected under section 57.

1. As was stated in West Valentine, this provision of the Act contemplates 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. In those instances, the objectors are to be given a 'copy of the decision' under section 64(5) as distinct from a 'notice in the prescribed form' as required by section 64(1) of the Act.[23] As such, this section operates to advise such persons of the decision that has been made although no 'rights' arise from such notice being given of that decision.
2. The responsible authority must not issue the permit to the applicant until the end of the period within which a person who objected under section 57 may apply to the Tribunal for a review of the decision to grant a permit[24] and, if an application is made within that period, until the application is determined by the Tribunal or withdrawn.[25]
3. However, where:

...no one has objected under section 57 or if notice of the decision to grant the permit is not required to be given to objectors under section 64,

section 63 of the Act provides that the responsible authority must issue the permit to the applicant.[26]

1. Hence, where third parties are entitled to be given notice and object, they are given notice of the decision and this can then facilitate their lodgement of an application for review under section 82 of the Act, if they so wish.
2. However, where third parties are not entitled to be given notice, the responsible authority must issue the permit - not just an NOD - to the applicant, thereby precluding the lodgement of any application for review under section 82 of the Act.
3. I do not understand anyone to take issue with the permission sought under the BMO not being available for review under section 82 of the Act. However, this application for review is lodged under section 79 of the Act and does not involve a situation where the Council has determined to approve the permit application under the BMO.

When is an objector a party to a review proceeding?

1. Before considering whether a third party can be a party to a section 79 review of a permission under the BMO, I first consider how a third party ordinarily becomes a party to a proceeding lodged under section 79; i.e. when no exemption is in effect.
2. Section 83(2) of the Act provides that:

In addition to any other party to a proceeding for review under this Act, an objector is a party to a proceeding for review if the objector -

(a) is given notice of the application for review under this Act; and

(b) in accordance with the Victorian Civil and Administrative Tribunal Act 1998, lodges with the Tribunal a statement of the grounds on which the objector intends to rely at the hearing of the proceeding.

1. Section 83A of the Act is headed 'Objectors entitled to notice' and provides that:

(1) A person who objected to the grant of a permit under section 57 is entitled to notice of an application by the applicant for the permit for review of -

(a) a decision refusing to grant the permit; or

(b) a failure to grant the permit; or

(c) a decision imposing a condition on the permit.

(2) Subsection (1) does not apply to a person if under a planning scheme the person is not entitled to apply to the Tribunal under section 82 for a review of a decision to grant the permit.

1. Section 83A(1) of the Act has the effect that if a permit applicant seeks review under:
   1. section 77 of the Act in respect of 'a decision refusing to grant the permit' - i.e. section 83A(1)(a);
   2. section 79 of the Act in respect of 'a failure to grant the permit' - i.e. section 83A(1)(b); or
   3. section 80 of the Act in respect of 'a decision imposing a condition on the permit' - i.e. section 83A(1)(c),

an objector is entitled to notice of that application for review.

1. This section only deals with those types of applications for review lodged by a permit applicant.
2. Having been given notice of the application for review, the objector is then able to lodge a statement of grounds and become a party to the application for review proceeding.
3. Section 83A(2) of the Act then provides that section 83A(1) does not apply to any objector who has lodged an objection under section 57 of the Act but who was not entitled to apply to the Tribunal under section 82 of the Act.
4. As such, the effect of section 83A(2) is to extend the exemption from third party participation in a proceeding brought under sections 77, 79 or 80 of the Act in circumstances where there is an exemption from third party notice, decision and review rights in place, such as there is in the BMO.

Third parties are not party to the review of the BMO permit trigger

1. The effect of section 83A(2) is that the Respondents in this proceeding are not entitled to notice of the application for review in respect of the section 79 application as regards the permission sought under the BMO. As such, the Respondents are not a party to the review of the deemed refusal to make a decision[27] of the permission sought under the BMO. This remains the case whether the Respondents received notice from the Council under other permit triggers.
2. A few observations may be made in relation to this conclusion.
3. First, it makes sense that if third parties are excluded from the requirement to be given notice of an application for planning permission, and if those third parties do not have a right, themselves, to seek review of a decision by the responsible authority to approve the permit application, that they would not suddenly be able to make comments about, and participate in, a Tribunal review of a decision to refuse the permit application.
4. The presence of the exemption in the BMO suggests that the drafters of the Scheme determined that for that particular planning permission, the decision-maker would not be assisted by hearing from third parties or that it was not appropriate that third parties be involved in that particular decision. Further, the required referral to the CFA suggests that the drafters of the Scheme determined that for that particular planning permission, the decision-maker would be assisted by hearing from the CFA,[28] no doubt because of the extent of knowledge and expertise required for the making of that decision.
5. The exemption then precludes a section 82 review of a decision on that permit application. This aligns with section 63 of the Act and its direction for a permit - and not an NOD - to issue where the responsible authority has decided in favour of an application and there are no persons entitled to object to the permit application.
6. So, if a responsible authority, having obtained the views of the CFA, considers that the acceptable planning outcome is to grant the planning permission sought under the BMO,[29] the planning permission will issue and no third parties are involved in this decision being made.
7. Why, then, would this situation change if the permit application comes before the Tribunal in a review initiated by the permit applicant?
8. I acknowledge the comments made by several parties as to the importance of third party rights and participation in the planning process and that this should only be displaced where there is clear intention to do so. However, I find that in this instance, given the operation of clause 44.06-7 of the Scheme and the various provisions of the Act, in knowledge of how the planning decision-making process works, there is clear intention for third parties not to be involved in the decision-making process for this particular permission.
9. The CFA contended that the reason for third parties to be involved in an application initiated by a permit applicant - such as a section 79 proceeding - as opposed to a section 82 proceeding is because in a section 82 proceeding the responsible authority has undertaken integrated decision making in determining to grant the permission. The CFA says that by contrast, if third parties cannot be involved in a section 79 review, the Tribunal cannot undertake integrated decision making. However, this is not the case: the BMO permission is before the Tribunal for review; it is just that third parties cannot participate in that process. The Tribunal will still undertake the integrated decision making required by clause 71.02-3 of the Scheme, mindful of the priority for the protection of human life over all other policy considerations in bushfire affected areas,[30] however the Tribunal will not hear from third parties in doing so. This should be no different to the process undertaken by the responsible authority in undertaking the integrated decision making required by clause 71.02-3 of the Scheme absent of input from third parties.
10. I observe that the above is consistent with what was said by the Tribunal in West Valentine in relation to the operation of section 83A of the Act. West Valentine involved an application made under section 77 of the Act with respect to the refusal by the council of a permit under the Heritage Overlay for demolition and construction of a garage, which was exempt from third party notice and review. Deputy President Gibson refused to join third persons as parties to the proceeding. In explaining that those persons did not have a right to be a party to the proceeding, Deputy President Gibson stated the following with respect to section 83A of the Act:
    1. An objector is normally entitled to notice under section 83A(1) but section 83A(2) provides that this subsection does not apply to a person if under a planning scheme the person is not entitled to apply to the Tribunal under section 82 for a review of a decision to grant the permit. Therefore, although the objectors in this case may have been served with a copy of the application for review, this cannot be considered as notice under the Act under section 83A(1) of the Act. This is because they were not entitled to such notice by reason of the operation of section 83A(2). What they were served with can be considered to be no more than informal notice of the application for review.
    2. As a consequence of not being entitled to notice of an application by a permit applicant in respect of refusal, failure or conditions by reason of section 83A(2), an objector who is not entitled to apply for review under section 82 is therefore not a party to an application for review of a decision refusing to grant the permit or a failure to grant the permit or a decision imposing a condition on the permit. It would be strange if it was otherwise. The Act and the planning scheme provisions set out certain classes of applications for permit that are exempt from the notice and review provisions of the Act by third party objectors. It would be contrary to the purpose underlying these provisions if, by nevertheless submitting an objection, a person could thereby gain rights to be a party in applications for review other than one concerning a decision to grant the permit.
    3. As noted previously, it may be desirable if the provisions of the Act and the planning scheme were more explicit on this point and it might be preferable that the Heritage Overlay and other similar provisions of the Victorian planning provisions stated that certain classes of permit applications were exempt not only from the review rights of section 82(1) but also the right to be a party in reviews by the permit applicant under sections 77, 79 and 80 of the Act. However the suggestion of this addition is simply for the sake of clarity for users of the system, not because there is any doubt about the effect of the provisions.

1. Whilst West Valentine involved a different type of application for review, for the purposes of the operation of the system of notice, decision and review rights that I have set out above, I am not persuaded that this matters.
2. Secondly, contrary to what was submitted by the CFA, the Council and some other parties, it matters not whether the permission for which an exemption exists is the only permission being sought at the time or one of a number of permissions being sought for a particular proposal.
3. This is because whether a proposal requires one planning permission or five planning permissions, procedurally the Scheme and the Act operates the same way. In a proposal involving multiple permissions, whilst one written notice will be given of the application for use and/or development, what it really is, in planning terms, is notice being given for each of the planning permissions being sought, whether this is specified in the notice or not. At the other end, when a decision is made by the responsible authority and communicated to an objector, again what is occurring is communication of the decision made in respect of each of the permissions sought (noting the holistic way in which those permissions are assessed as constituting a proposal).
4. This is consistent with the approach of the Supreme Court, Court of Appeal, in Sweetvale Pty Ltd & Anor v Victorian Civil and Administrative Tribunal & Ors[31] in dealing with an application under section 82 of the Act. Whilst that case dealt with a different type of proceeding, the comments of Warren A.J.A. with respect to the permit application constituting a single application made up of five parts and the consequences that flowed are instructive in the present case.
5. In circumstances where multiple permissions have been sought for a proposal and an exemption is in place for one of them - such as is the case presently before the Tribunal in terms of the BMO pursuant to clause 44.06-7 - the notice given of the proposal by the responsible authority is given only of those permissions for which third parties are entitled to be given notice; that is, for four permissions out of the five sought. The Council conceded that this was the case; that it had given notice in accordance with the Scheme and the Act and only in relation to the four permissions for which third parties were entitled to be given notice.
6. In the present case, no decision was made by the Council. Rather, the next step in the process was the initiation of proceedings under section 79 of the Act. Section 83A means that objectors to the proposal are entitled to notice of that section 79 proceeding, however, they are only entitled to notice of the application for review brought in relation to the four permissions for which they would have been entitled to apply to the Tribunal under section 82 for review, because they were entitled to notice of those four permissions.
7. In the present case, this means that these objectors are entitled to notice of the review of four of the permissions sought but not the permission sought under the BMO because no third party is entitled to apply under section 82 in respect of that permission.
8. As such, when understood in this way, the 'notice' that was given to third parties of this application for review only applied to the four planning permit applications for which they were entitled to be given notice by the Council.
9. It was argued by the CFA, the Council and some other parties that the exemption contained in the BMO pursuant to clause 44.06-7 could not apply to an application for review brought under section 79 of the Act because the exemption does not refer to section 79; it only refers to section 82. I agree that the clause only refers to section 82. However, when the Scheme, as subordinate legislation, is interpreted alongside the provisions of the Act, being the legislation to which it relates, the system as a whole can be appreciated and this leads to the conclusion, as explained above, that third parties are not properly parties to such an application for review.
10. Thirdly, the exemption from third party notice and the consequences that flow from this that are contained in the BMO pursuant to clause 44.06-7 do not apply to preclude the CFA's involvement in an application for review regarding the BMO. This is because, even in circumstances such as this where the CFA is not automatically a party to the proceeding, the CFA was given notice of this application under section 55 of the Act (in its capacity as a determining referral authority under the Scheme) and not section 52 of the Act. As such, the flow on effects of third parties not being entitled to notice pursuant to clause 44.06-7 do not apply to the CFA.
11. The effect of the above is that third parties are not entitled to be a party to a review of a decision regarding a permission sought under the BMO.
12. In the present case, there is a proceeding before the Tribunal to which there are third parties. However, if one separates out what the Tribunal is dealing with in this proceeding, that is a review of five permissions for which no decision has been made within the statutory time frame for each of those permissions. Of those five permissions, only four are permissions for which third parties can have input. So whilst there are third parties who are involved in this proceeding, those persons can only be a party to the review under the four permissions other than the BMO.
13. What this means, in practice, is that those third parties cannot make submissions regarding the BMO permission sought, nor can they cross‑examine any expert witness called to address the BMO permission sought.

1. Accordingly, for the above reasons, my answer to the question:

What is the effect of the exemption contained in clause 44.06-7 of the BMO upon the involvement of third parties in the consideration of the permit trigger under the BMO in this proceeding?

Third parties are not entitled to be involved in the Tribunal's consideration of the permit trigger under the BMO through the making of submissions or the cross-examination of any witness dealing with the BMO permission sought.

What is the effect of the BMO exemption in this proceeding as regards other clauses in the Scheme that deal with bushfire risk?

What is the effect of the exemption contained in clause 44.06-7 of the BMO upon the involvement of third parties in the consideration of bushfire risk pursuant to other clauses of the Scheme in the consideration of permit triggers for the proposal other than the BMO?

1. The other clauses of the Scheme to which I was referred are clauses 53.02 and 13.02-1S.
2. Clause 53.02 does not, of itself, create a separate planning permit trigger. Rather, it applies to an application made under the BMO.[32] Clause 53.02 applies differently depending on whether the application is for a single dwelling or is for another form of development. But in either case it applies to the permission sought under the BMO. As such, given that I have found the review of the BMO permission sought is not available for third party involvement, it follows that I find that nor are third parties able to make submissions regarding the contents of clause 53.02 of the Scheme.
3. This leaves clause 13.02-1S and the question as to whether third parties can make submissions regarding its content when addressing the Tribunal on the other permit triggers for which they were entitled to receive notice.

1. During the hearing, we reviewed the Explanatory Report for Amendment VC140.[33] This was done with a mind to understanding the drafting of clause 13.02-1S.
2. Under the heading 'What the Amendment does' is the following:

The Amendment makes the State Planning Policy Framework for Bushfire clearer and more directive to enable a resilient response to settlement planning for bushfires.

The Amendment makes changes to the Victoria Planning Provisions and all planning schemes by:

• Inserting an updated State Planning Policy Framework at Clause 10 Operation of the State Planning Policy Framework
• Inserting an updated State Planning Policy Framework at Clause 13 Environmental Risks

The revisions require planning authorities and responsible authorities to:

• Prioritise the protection of human life and the management of bushfire impact.
• Avoid any increase in the risk of bushfire to people, property and community infrastructure.
• Direct population growth and development to low risk locations and also to ensure safe access to areas where human life can be better protected.
• At a settlement level, achieve no net increase in bushfire risk, and where possible reduce bushfire risk overall.
• Ensure new development can implement bushfire protection measures without unacceptable biodiversity impacts.
• Ensure that development has addressed relevant policies, satisfied performance measures or implemented bushfire protection measures.
• Consider bushfire risk in bushfire prone areas when assessing a planning permit application for specified uses and development such as accommodation, childcare and hospitals, etc.

1. The reference to an updated clause 10 is a reference to what is now clause 71.02-3 of the Scheme and the inclusion of the words:

However, in bushfire affected areas, planning and responsible authorities must prioritise the protection of human life over all other policy considerations.

1. I observe that there is no definition of 'bushfire affected areas' in the Scheme or in the materials referred to the Tribunal.
2. The changes made to what was at that time the policy at clause 13.05 'Bushfire' included the addition of the application section and the addition of the content regarding 'Areas of high biodiversity conservation value'[34] and 'Use and development control in a Bushfire Prone Area'.
3. Whilst a number of the dot points in the Explanatory Report deal with both strategic and statutory decisions, the last dot point speaks specifically to planning application decisions for use and development of land in a BPA.
4. Under the heading 'Why is the Amendment required?' is the following:

The State Planning Policy Framework - Bushfire of the Victoria Planning Provisions needs to be clearer and more directive so that planning schemes will enable a resilient response to settlement planning for bushfires.

In areas of extreme bushfire risk, planning authorities and responsible authorities must prioritise the protection of human life. The recent gazettal of Amendment GC13 to update the Bushfire Management Overlay maps across Victoria, provides a comprehensive and accurate identification of extreme bushfire risk areas.

The revised policy focuses on making settlements more resilient to bushfire, which is key to land use planning before, during and after a bushfire.

This Amendment updates the State Planning Policy Framework to complete a comprehensive statewide review of the bushfire mapping and policy in Victoria. The Amendment introduces revised policy that includes principles, strategies and more measurable outcomes that are clearer and more directive.

Many parts of Victoria are affected by bushfire and the most recent updates to the bushfire mapping via Amendment GC13 coupled with the revised State Planning Policy Framework will ensure that the bushfire hazard is accurately and consistently mapped in all planning schemes. All levels of bushfire hazard, including grassland, are now mapped in Victoria as identified through both the Bushfire Prone Area Map determined under the building regulations and where there is an extreme bushfire hazard, the Bushfire Management Overlay in the planning scheme.

Strategic planning must seek to achieve no increase in bushfire risk to existing and future residents. As the planning response becomes more sophisticated, land use planning will progressively reduce the bushfire risk for Victoria's settlements and towns.

Settlements are the key to Victoria's bushfire resilience, before, during and after a bushfire. They play a key role in fire preparedness, are the place where people retreat to, defend and shelter, and they are the place from which community recovery begins. The settlements of Victoria must be better protected and made more resilient to bushfire.

Development in areas already identified for growth must minimise the increase in risk that is inherent in permitting additional new homes and people into areas at risk of bushfire. In most circumstances, compliance with planning and building regulations will reduce the risk, but not remove it entirely.

Implementation of the objectives and strategies of the revised Clause 10 Operation of State Planning Policy Framework and Clause 13 State Planning Policy Framework - Bushfire, of the Victoria Planning Provisions (VPP) will progressively strengthen settlements to reduce bushfire risk.

Victoria will have a more sophisticated and better informed planning response to bushfire that directs settlement and population growth away from areas of extreme bushfire risk and to safer low risk locations. Overall, Victoria will become more resilient to bushfires and a safer place to live.

[Tribunal emphasis]

1. The above speaks to changes made to the policy to create a better informed planning response to bushfire, that includes 'principles, strategies and more measurable outcomes that are clearer and more directive'.
2. Also contained in the Explanatory Report is the following:

The Amendment implements these objectives by ensuring bushfire risk is comprehensively and properly considered in all planning decisions in accordance with the recommendations of the 2009 Black Saturday Bushfire Royal Commission, various practice notes and Ministerial Guidelines.

...

The Amendment will generate positive environmental, social and economic benefits by ensuring clearer policy direction for decision makers in areas at risk of bushfire. The Amendment creates greater certainty by ensuring that bushfire risk is comprehensively and properly considered in all planning decisions.

The Amendment includes consideration of environmental effects by maintaining the policy to discourage settlement growth in bushfire-prone areas that are also of high biodiversity conservation value and ensuring that bushfire protection measures can be implemented without unacceptable biodiversity impacts.

...

The Amendment provides a clearer framework for decision making. The strategies for strategic and settlement planning better address bushfire risk by ensuring that planning considers alternative locations to accommodate growth and direct development to lowest risk areas, reduce bushfire risk and benefit both existing and new communities.

By contrast, on land already identified for development, the updated policy ensures that planning permit decisions implement appropriate bushfire protection measures that will assist to reduce bushfire risk but not remove it entirely. The bushfire protection measures that are required to be implemented are set out in bushfire planning controls specified in Clause 44.06, Clause 52.47 and any schedules to those clauses.

[Tribunal emphasis]

1. These statements speak to an increased strategic and statutory emphasis on the importance of bushfire risk being taken into account in all planning decisions. The inclusions in then-clause 13.05 specify when the policy is to be applied, direct consideration of the policy in planning decisions for land in a BPA and require consideration of whether implementation of bushfire protection measures will have unacceptable biodiversity impacts on areas that are of high biodiversity conservation value. The intention appears to be that the policy will be applied in planning decision-making that is broader than just under the BMO. However, the BMO specifies the bushfire protection measures that are required to be implemented under clause 44.06, the (now) clause 53.02 and any schedules to those clauses.

1. At the outset, it must be said that the Advisory Note does not form part of the Scheme, nor can the content of the Advisory Note affect the interpretation of what is contained in the Scheme, as was found by the Supreme Court of Victoria, Court of Appeal in Gray v Minister for Energy, Environment & Climate Change[35] ('Gray'), where it was said:
   1. It is in that context that we turn to the submissions by the applicant that the Planning Advisory Note in some way either qualified cl 13.02-1S, or excluded it from applying to the determination of individual planning permit applications.
   2. The submissions must be rejected for two reasons. First, the provisions of the planning scheme, including cl 13.02-1S, have legal effect by virtue of Part 2 the Planning and Environment Act . There is nothing in the provisions of the scheme which confines the application of cl 13.02-1S to proposals for new settlements or new subdivisions. A Planning Advisory Note is not part of the planning scheme. It cannot affect or qualify the language or the legal effect of the clauses contained in the scheme, including cl 13.02-1S.
   3. Further, and in any event, the Planning Advisory Note does not, by its terms, seek to restrict or confine the operation of cl 13.02-1S, or any other provision of the planning scheme, in the manner contended for on behalf of the applicant. In the passage relied on by the applicant, the Note refers to the objective of bushfire planning policy to strengthen resilience and prioritise the protection of human life. It then notes that the amendment (which incorporated cl 13.02-1S) introduced 'strategies to better identify, assess and manage bushfire hazards through the planning process'. The reference, in that part of the Planning Advisory Note, to the use of cl 13.02-1S, to inform the development of appropriate strategies, did not expressly or impliedly mean that the operation of the clause is confined to the development of strategies. In particular, it did not purport to exclude the application of the clause to the approval of individual planning proposals. Nor, as a matter of legal principle, could it.

1. Whilst the Court of Appeal's comments were made in relation to specific parts of the Advisory Note relevant to that case, the broad principle applies to the present case; that is, the content of the Advisory Note cannot modify the effect of the actual words contained in clause 13.02-1S.
2. As such, I look to the Advisory Note as a means of obtaining insight as to what the Department considers to be the effect and intent of clause 13.02‑1S, mindful that I need to form my own view as to the effect and intent of clause 13.02‑1S having regard to its actual words and its context within the Scheme.
3. The Advisory Note explains that the then-State Planning Policy Framework was amended 'to provide directive strategies to manage bushfire risk in planning and decision making'. In terms of the application of the policy in then-clause 13.05, the Advisory Note states that:

These strategies require regional growth plans, precinct structure plans, planning scheme amendments and planning permit applications to assess bushfire hazards and include appropriate bushfire protection measures.

1. The Advisory Note explains what a BPA is and states that bushfire construction standards apply to new buildings under Australian Standard AS 3959-2009 Construction of buildings in bushfire prone areas.
2. In relation to the BMO, the Advisory Note states:

Clause 44.06 - Bushfire Management Overlay establishes a planning permit requirement for certain use and development. The permit requires bushfire hazards to be assessed and bushfire protection measures in Clause 52.47 - Planning for Bushfire to be implemented. These measures are in addition to the bushfire construction standards.

[Tribunal emphasis]

1. Interestingly, reference is made to 'use' as well as to 'development', noting that the BMO only controls development, given the triggers in clause 44.06‑2 of the Scheme require a permit to subdivide land or to construct a building or to construct or carry out works associated with particular uses.
2. The Advisory Note explains that:

Strategic planning documents, planning scheme amendments, planning permit applications and development plans must only be approved where a landowner or proponent has assessed bushfire hazards, and demonstrated that the relevant bushfire protection measures can be implemented.

[Tribunal emphasis]

1. The Advisory Note explains the role that settlement planning has in addressing bushfire risk at the settlement scale rather than delaying bushfire protection until the subdivision and/or construction phase. It speaks to the strategic planning process being the most effective planning mechanism to protect biodiversity while improving community resilience to bushfire risk.
2. In terms of the part of the policy entitled 'Use and development control in a Bushfire Prone Area' the Advisory Note states:

A use and development control measure has been introduced into the SPPF to apply the precautionary principle when assessing bushfire hazards and risk. This applies to certain uses and development that are in a designated BPA but not subject to the BMO.

While developments in a BPA are required to meet relevant bushfire construction standard, this bushfire protection measure alone may not reduce risk to an acceptable level. Responsible authorities may consider additional bushfire protection measures to meet the relevant objectives, strategies and requirements for bushfire.

[Tribunal emphasis]

1. These comments are curious in that the policy is expressed to apply to uses as well as to developments, while the policy is described as being a 'control measure'.
2. The Advisory Note identifies the types of applications to which this 'control measure' applies, which includes Accommodation (as nested in the Scheme), and then states:

The use and development control is a risk-based planning strategy that has been introduced to ensure that buildings occupied by vulnerable people have additional bushfire protection measures.

While these buildings may be required to build to a bushfire construction standard under the BPA, this use and development control ensures that additional bushfire protection measures are considered. These additional measures may include:

• Siting, design and defendable space
• Vegetation management
• Vehicle access design and construction
• Static water supply
• Emergency management plans.

If a planning permit is required for the use or development under Clause 44.06 - Bushfire Management Overlay, then this strategy is addressed through the relevant application requirements and decision guidelines in Clause 52.47 - Planning for Bushfire.

[Tribunal emphasis]

1. As can be seen, the Advisory Note contemplates that where a BMO permission is required the 'use and development control' under clause 13.02-1S will be assessed via the BMO (and in turn clause 53.02 'Bushfire Planning' which superseded clause 52.47).
2. The Advisory Note refers to the information that might be required by a responsible authority to assess the application and what might be considered when assessing these applications. In this respect, the Advisory Note states:

• consider the risk of bushfire to people, property and community infrastructure.
• require the implementation of appropriate bushfire protection measures to address the identified bushfire risk.
• ensure new development can implement bushfire protection measures without unacceptable biodiversity impacts.

...

To ensure that proposed use and development manages bushfire risk effectively, responsible authorities may require an application to meet the requirements Clause 52.47-2 Bushfire protection objectives.

The bushfire protection measures and decision guidelines of Clause 52.47 should be applied relevant to the site context and landscape risk.

1. This part of the Advisory Note contemplates that the policy framework utilised in then-clause 52.47, now clause 53.02, of the Scheme in assessing applications under the BMO may be of assistance to a responsible authority in assessing a use and development application for land in a BPA.

Is there an overlap between the BMO (and clause 53.02) and clause 13.02‑1S?

1. The policy at clause 13.02-1S contains strategies dealing with:
   1. The protection of human life;
   2. Bushfire hazard identification and assessment;
   3. Settlement planning;
   4. Areas of biodiversity conservation value; and
   5. Use and development control in a Bushfire Prone Area.
2. These strategies contain a mix of strategic and statutory policies.
3. On my analysis, these policies direct consideration to matters such as the location of the land and its bushfire hazard, the context of the land, the way in which the land could be developed through meeting performance measures and ensuring development approvals can implement bushfire protection measures without unacceptable biodiversity impacts. Some of these matters appear to overlap with what is dealt with under the BMO and clause 53.02, others do not.
4. That is, it appears that there are things covered in clause 13.02-1S that go beyond what is covered in the BMO and clause 53.02: there is not a complete overlap.
5. The question then arises as to how clause 13.02-1S is taken into account in our decision-making in this case, in light of this overlap. Do we only take clause 13.02-1S into account in assessing a permission under the BMO? Or, given the wording of clause 13.02-1S, are we also required to take it into account in assessing the other permissions sought?

How is clause 13.02-1S taken into account in the present case?

1. Clause 13.02-1S is a policy provision. Whilst the reference in the heading 'Use and development control in a Bushfire Prone Area' is suggestive of a permit trigger itself, as policy, clause 13.02-1S cannot contain a permit trigger and so those words are confusing. Further, clause 13.02‑1S cannot be more than policy because it has been included in the Scheme as policy.
2. I accept the contention that policy is a servant to the controls in the Scheme; that is, policy guides the exercise of any discretion that is contained in a control in the Scheme but is not, of itself, a separate permit trigger or discretion in its own right.
3. As such, in order for clause 13.02-1S to be taken into account in decision‑making, it needs to be brought into a decision being made under a permit trigger in the Scheme.
4. This is consistent with the findings of Quigley J in Brunswick Investment where the particular topic was car parking quantum in excess of the statutory rate and the potential link to sustainable transport policy in the context of a permit trigger under the Industrial 3 Zone. In that case, Quigley J stated:
   1. The ambit of the discretion to be exercised is constrained by the purpose for which it is generated. Policy of itself is not a trigger for the exercise of discretion but provides the guidance and strategic context for decision-making once a decision has to be made under the planning scheme provisions.
   2. The role of policy is not the same as the role of the provisions which trigger the need for a permit. Policy at this statutory point is the servant not the master.
   3. The scheme of the Act is to provide for a system of permissions to be granted for land use and development in certain specified circumstances. Policy is relevant at both the strategic planning scheme amendment stage and then at the statutory permission stage. It is the policy's role to strategically guide the choice of zone and overlay controls which are put in place initially. Further, once the suite of controls are in the planning scheme, the relevant policy guides the exercise of the discretion in the decisions which are then required to be made but only where a permission is required.

1. One must remain mindful that policy cannot operate as a control. The zones and overlays and particular provisions are the controls. They are the provisions which trigger a permit requirement, that is, they are the provisions which call up an exercise of discretion. Policies assist in the exercise of discretion when a decision is to be made, that is where a permit is required for a particular use or development.
2. As was said in Brunswick Investment, policy provides guidance to a decision that has to be made under the Scheme provisions.
3. Hence, the way in which to approach assessment of a planning proposal is to first ascertain what permissions are required under the controls in the Scheme, and then to identify and apply relevant policy to guide the exercise of each discretion, to determine whether to grant the permission sought under each control.
4. In each instance, the policy will be applied to the control being assessed through the lens of the purpose of that control, to the extent relevant. The purpose of each control is identified at the beginning of each control in the Scheme.
5. The identification of which policies are relevant to each particular control is determined through consideration of the decision guidelines specified in each control, also as contributed to by the broad decision guidelines contained in clause 65 of the Scheme and the matters contained in section 60(1) and (1A) of the Act that are to be applied. All of these are utilised in assessing the control that is sought; these are not controls in their own right and do not give rise to assessment of those matters outside of the control to which they are being applied in order to make a decision.
6. Hence, notwithstanding the wording of clause 13.02-1S, the history surrounding its introduction into the Scheme and its expressed intentions, clause 13.02-1S is only policy and needs to be applied in decision-making adopting the same approach as is applicable to any other policy in the Scheme. The relevance of its utilisation needs to be established through consideration of the purposes of the control being assessed and the decision guidelines for that control.
7. The policy in clause 13.02-1S can only guide in the exercise of the control being assessed and can only do so with regard being given to the purpose of that control: that is, what is the reason that the control exists in the Scheme and what function is it performing. In this respect, the policy is applied 'through the lens of' the permission being sought in the control. It is not appropriate for the policy to direct consideration to things that are not within the purpose or function of the control because that would mean that the policy is acting as the master of the control, rather than it being the servant of the control.
8. To reiterate, clause 13.02-1S is a policy provision and does no more or less than any other policy provision in the Scheme.

How is clause 13.02-1S taken into account in deciding the permission under the BMO?

1. In Brunswick Investment it was stated (with respect to the facts of that case):
   1. Reading the Scheme as a whole, where a particular provision is directed to regulation of a particular matter and that particular provision deals with the subject matter comprehensively, it is not the purpose of another provision to duplicate regulation of that same subject matter.
   2. I agree that clause 52.06 'covers the field' in terms of the provision of car parking, with the effect that the provision of car parking that does not require a permit under cl 52.06 is not a relevant consideration in assessing the permit application under the IN3Z.
2. In the present case the Land is in a BMO, which is a location that is subject to extreme bushfire behaviour. The BMO is applied to land that is subject to extreme bushfire behaviour and where the bushfire hazard warrants bushfire protection measures be implemented. The purposes of the BMO speak to ensuring that development of land prioritises the protection of human life and strengthens community resilience to bushfire, and development is only permitted where the risk to life and property from bushfire can be reduced to an acceptable level.
3. In concert with clause 53.02, the BMO contains a technical regime for assessing development of land in such areas, mindful of the risk posed by the location of the land and the extent to which that risk can be mitigated if development was to occur on the land. The decision-making is informed by referral to the CFA and is not open to input from third parties. It is the only overlay with the purpose of managing areas subject to extreme bushfire behaviour or hazard as it relates to proposed development. It is also the only classification within the Scheme in terms of bushfire; whilst the BPA is referenced in clause 13.02-1S, it is not a classification that is created in the Scheme and, by virtue of its broader application than just to BMO areas, it is not only applied to areas subject to extreme bushfire behaviour. As such, the BPA areas must be lower on the hierarchy of bushfire hazard than areas in the BMO.
4. The BMO 'covers the field' with respect to the bushfire management of these areas that are subject to extreme bushfire behaviour. Whilst I acknowledge that the term 'covers the field' is not a phrase found in the Scheme, it is a principle of statutory construction that applies to the interpretation of the Scheme, given it is subordinate legislation. When I refer to the BMO 'covering the field' with respect to bushfire management of areas subject to extreme bushfire behaviour, I mean that the part of the Scheme that is utilised to assess areas subject to extreme bushfire behaviour or hazard is the BMO and the assessment of bushfire management for those areas occurs under the BMO. As summarised above, the focus of the BMO involves ensuring that the development of land prioritises the protection of human life and the focal point of the overlay is the protection of human life and of property in these areas.
5. Whilst land in a BMO will also be in a BPA, it is the BMO that identifies that for the purposes of the Scheme, development of the land is to be assessed with regard to its potential to be subject to extreme bushfire behaviour.
6. In assessing the permission sought under the BMO, the proposal will undergo the comprehensive assessment required under the BMO, including through hearing from the CFA and the expert witness called by the Applicant.
7. To the extent that there is policy content in clause 13.02-1S that overlaps with what would be assessed under the BMO, this will be dealt with in the decision-making under the BMO with reference to the content of the BMO and clause 53.02.
8. To the extent that there is policy content in clause 13.02‑1S that differs from what is contained in the BMO and clause 53.02, this will be taken into account in the exercise of discretion under the BMO, through the application of that policy in the decision-making.
9. Given the purposes of the BMO, there is a clear synergy between the content of the policy in clause 13.02-1S and the role of the BMO. As such, to the extent that the policy in clause 13.02-1S deals with any matters relating to risk to human life or property that go beyond what is covered in the BMO, it is appropriate to deal with those matters through the application of the policy in clause 13.02-1S in assessing the discretion under the BMO. This approach accords with what I have said earlier about the role of policy in decision-making.
10. It is in this way that the third limb of clause 13.02-1S - being the potential impact on the surrounding land as a consequence of the proposed use and development on the subject land that may create a bushfire hazard - will be taken into account through assessment of the permission sought under the BMO.
11. Accordingly, either way, the content of clause 13.02-1S will be taken into account in assessing the permission sought under the BMO.
12. I observe that this also accords with the approach in Brunswick Investment, where it was stated that the sustainable transport policy would be applied where an exercise of discretion under clause 52.06 was engaged:

A finding that clause 52.06 covers the field does not undermine the role and application of sustainable transport policy in the Scheme as the policy will be applied where an exercise of discretion under clause 52.06 is engaged. Where a permit is required, various matters including sustainable transport policy must be considered, and indeed sustainable transport policy may be a conclusive issue in the exercise of discretion to allow a reduction or waiver of parking from the specified rate or in the exercise of discretion to allow a provision greater than the maximum rate.[36]

1. Similarly, a finding that the BMO 'covers the field' with respect to the bushfire management of areas of extreme bushfire hazard does not undermine the role and application of the policy in clause 13.02-1S, as the policy will be applied where an exercise of discretion under the BMO is engaged.
2. As set out in the preceding section, I have found that Respondents are not entitled to be involved in the Tribunal's consideration of the permit trigger under the BMO through the making of submissions or the cross‑examination of any witness dealing with the BMO permission sought. This includes making submissions regarding the matters that are considered in assessing the BMO permission, as I have outlined above.

How is clause 13.02-1S taken into account in the decisions to be made for the other permissions sought?

Clause 13.02-1S seeks to have broader application than just under the BMO

1. Given the content of the Explanatory Report as to the reasons for the implementation of what is now clause 13.02-1S, it is evident that the intention was for that policy to be of broader applicability than just to land of extreme bushfire hazard located in the BMO.
2. Through its reference to land in a BPA as well as to land that is proposed to be used or developed in a way that may create a bushfire hazard, the stated policy application of clause 13.02-1S includes land that is not just in the BMO:

This policy must be applied to all planning and decision making under the Planning and Environment Act 1987 relating to land that is:

• Within a designated bushfire prone area;
• Subject to a Bushfire Management Overlay; or
• Proposed to be used or developed in a way that may create a bushfire hazard.

1. The first dot point, above, refers to land in a BPA. The BPA is applied to land pursuant to powers under the Building Act 1993. An area is declared as a BPA based on its bushfire hazard level. Whilst all land in a BMO is in a BPA, not all land in a BPA will be in a BMO. Hence, there is a more extensive area of Victoria covered by a BPA than there is covered by the BMO. This is consistent with the policy intent explained in the relevant Explanatory Report we have referred to above.
2. The third dot point refers to land proposed to be used or developed in a way that may create a bushfire hazard. As with land in a BPA, this is drafted as a matter that is separate from, and additional to, whether land is in a BMO.
3. Accordingly, the policy in clause 13.02-1S contemplates its application in decisions other than just those under the BMO: clause 13.02-1S is to be 'applied to all planning and decision making under the [Act] relating to land that is' of any of the listed types. This drafting appears to be unlike the drafting of other policies in the Scheme.
4. The Land is in both a BMO and a BPA and submissions have been made that the third dot point is also satisfied with respect to this proposal.
5. This being the case, in the present case do we take clause 13.02-1S into account in assessing the four permissions other than the BMO that are sought and if so, how?

Relevance of clause 13.02-1S to other permissions before the Tribunal

1. As stated, the policy in clause 13.02-1S cannot be the master of the controls; that is, of the other permissions sought. Even though the policy states that it is to be applied to all planning and decision making under the Act relating to land that is in any of the three identified categories, the application of the policy must still be relevant to the particular permission being considered.
2. In the present situation we have five permissions before us:
   1. the FZ - for use;
   2. the FZ - for development;
   3. the BMO - for development;
   4. the ESO1 - for development; and
   5. clause 52.05 - for business identification signage.
3. Given the Land is an area of extreme bushfire hazard, as indicated by its inclusion in the BMO, clause 13.02-1S will be taken into account through the assessment of the BMO permission. As stated above, for areas of extreme bushfire hazard the BMO permission 'covers the field' with respect to bushfire hazard assessment and management. The assessment of the permission under the BMO is guided using the policy in clause 13.02-1S.
4. In the present circumstances, this means that assessment of bushfire hazard and its management with respect to the proposal will be addressed via the BMO and not via the other four permissions (assuming relevance could be established).
5. I make two observations about this conclusion.
6. The first is that with respect to the other development permissions sought for this proposal, I think it is clear that the development permission under the BMO 'covers the field' with respect to the bushfire assessment and management of the proposed development of the Land. As such, clause 13.02-1S will not be taken into account in the assessment of the other development permissions for this proposal.
7. The second is an acknowledgement that the BMO is a development control and, unlike the FZ, does not contain a use permission. For the purposes of the BMO 'covering the field' I do not think it matters that the BMO controls development whilst 'use' of the Land requires permission under the FZ. I accept, as was put by Ms Sheard, that access to land is often considered in assessing a use permission under a zone. However, in my view given the nature of what is it is taken into account under the BMO (and through clause 53.02 of the Scheme), in reality when one is assessing the development permission under the BMO inherently one is taking into account the intended use of the land. These considerations will include the access to and from the lot, how people will move around the lot in the event of a fire and the extent to which people will be familiar (or not) with the lot and the surrounding area.
8. Whilst not determinative of this matter, in this respect I recall the references in the Advisory Note to the BMO dealing with permission for use and development. This is notwithstanding that the BMO only controls development (and subdivision).
9. As such, whilst permission is not required under the BMO for the use of the Land, issues such as access to the Land will also be taken into account in the assessment under the BMO and so the BMO 'covers the field' with respect to the assessment of those issues also.
10. In the event that I am wrong about that, and what is assessed under the BMO does not 'cover the field' with respect to the use permission under the FZ, it would need to be established that clause 13.02-1S is relevant to the use permission under the FZ. As stated above, relevance is to be established through consideration of the purposes of the control being assessed and the decision guidelines for that control.
11. The purposes of the FZ are:

1. Whilst the first purpose of the FZ refers to the implementation of the Municipal Planning Strategy and the Planning Policy Framework, this does not mean that clause 13.02-1S is relevant. I say this mindful of the comments in Brunswick Investment that it is not sufficient that the first purpose of the zone or overlay refers to implementation of policy:
   1. The first purpose of all zone and overlay controls is to implement policy but this does not mean that the control implements all policy or that all policy no matter what the subject matter is relevant to the exercise of discretion under that control.
2. As such, there needs to be more in the control being considered that indicates relevance of a particular topic or issue.
3. The other purposes of the FZ are aimed at the preservation of land for agricultural reasons and ensuring that use and development of land does not adversely affect or undermine the agricultural use of land in the FZ.
4. Whilst it may be argued that the wording of these purposes is potentially broad, in my view the focus is narrow: the focus is on how land can be used and developed to support, and not detract from, agriculture.
5. Hence, when assessing the use permission sought under the FZ, the focus of that assessment, informed by the purposes of the FZ, is to whether the proposal will support, and not detract from, agriculture.
6. In making that decision, one looks to the decision guidelines.
7. The decision guidelines in clause 35.07-6 of the FZ apply in addition to clause 65 and 'as appropriate'. Relevant to present matters, they include considerations such as:
   • The Municipal Planning Strategy and the Planning Policy Framework.

• Whether the site is suitable for the use or development and whether the proposal is compatible with adjoining and nearby land uses.

• The potential for the use or development to limit the operation and expansion of adjoining and nearby agricultural uses.

• The impact of the proposal on the natural physical features and resources of the area, in particular on soil and water quality.
• The impact of the use or development on the flora and fauna on the site and its surrounds.

• The impact of the siting, design, height, bulk, colours and materials to be used, on the natural environment, major roads, vistas and water features and the measures to be undertaken to minimise any adverse impacts.

1. Clause 65 is itself to be applied 'as appropriate' and directs consideration to matters such as:
   • The effect on the environment, human health and amenity of the area.

• 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.

1. I acknowledge that arguably some of these decision guidelines, both in the FZ and in clause 65, could conceivably incorporate consideration of fire risk. However, the reason for looking at those decision guidelines is to guide the decision that needs to be made under the FZ, and that decision under the FZ is made through the lens of the purpose of the FZ.
2. Hence, to the extent that fire risk might be relevant to the use permission sought under the FZ, it would be with respect to the detrimental impact that fire may have upon the agricultural use of the Land and surrounding properties.
3. This is different to the objective of clause 13.02-1S, being:

To strengthen the resilience of settlements and communities to bushfire through risk-based planning that prioritises the protection of human life.

1. As such, the objective of clause 13.02-1S and the consideration of matters such as the risk to human health and to property as a consequence of bushfire risk under that policy are different to the extent to which fire risk might be relevant to the use permission sought under the FZ.
2. This is a subtle but important distinction because it goes to the substance of clause 13.02-1S. In areas subject to extreme bushfire behaviour, the objective of clause 13.02-1S aligns with the purpose of the assessment undertaken under the BMO. By contrast, the objective in clause 13.02-1S does not align with the purposes under the FZ, which focus on agricultural considerations. As such, assessing a use permission under the FZ will not have the same focus and will not enable consideration of the same matters as under the BMO. Rather, to the extent that fire risk might be relevant to the use permission sought under the FZ, it would be with respect to the detrimental impact that fire may have upon the agricultural use of the Land and surrounding properties.
3. As such, I find that even if the BMO does not 'cover the field' in terms of the use of areas subject to extreme bushfire behaviour, the use permission required for this proposal under the FZ will not enable consideration of the matters contained in clause 13.02-1S because these sit outside of the purposes of the FZ.
4. Were it otherwise, and the policy in clause 13.02-1S was relevant to the use permission sought under the FZ, this would result in a decision-maker taking into account matters in clause 13.02-1S that will be assessed under the BMO. The effect would be consideration of potentially technical matters under a use permission pursuant to the FZ, the purpose of which is not directed at consideration of those matters. It would also provide third parties with a 'back door' to be involved in the assessment of these matters through a use permission when those persons are not able to address those matters via the specific provision that deals with it - that is, the BMO - due to the exemption in the Scheme. This cannot be correct.
5. Accordingly, in the present circumstances where amongst the suite of permissions sought is a permission under the BMO, clause 13.02-1S will not be taken into account in the assessment of any of the other permissions sought.
6. Whether the situation would be different if land was only in a BPA or if the proposal only triggered the third dot point is not before me in this proceeding because the Land is in the BMO.
7. For present purposes, clause 13.02-1S will only be taken into account in assessing the permission under the BMO and will not be taken into account in assessing the other four permissions sought.
8. I acknowledge that the Applicant had made submissions accepting of the Respondents being able to make submissions regarding the third limb of clause 13.02‑1S; that is, the potential impact on the surrounding land as a consequence of the proposed use and development on the subject land that may create a bushfire hazard. Having regard to the above analysis, I do not agree that this can occur. I say this for two reasons. First, the place in which clause 13.02-1S is properly taken into account in the present circumstances is through the BMO, and the Respondents are not able to make submissions in relation to that permission. Second, for the above reasons, in the present circumstances the permissions for which the Respondents are able to make submissions do not enable consideration of clause 13.02-1S, either because the BMO 'covers the field' with respect to bushfire matters for the other permissions sought or, alternatively, because the use permission required for this proposal under the FZ will not enable consideration of the matters contained in clause 13.02-1S because these sit outside of the purposes of the FZ.
9. To the extent relevant, the matters addressed in the third limb of clause 13.02-1S will be part of the assessment by the Tribunal of the BMO permission, in respect of which we will hear from the Applicant, the Council and the CFA. We will not hear from the Respondents.
10. What this means is that third parties who are entitled to make submissions with respect to the four permissions other than the BMO cannot make submissions with respect to clause 13.02-1S in doing so. The only parties that we will hear submissions from in relation to all bushfire-related issues are those parties who are entitled to make submissions in respect of the BMO permission. That is, the Applicant, the Council and the CFA, and not Respondents.
11. I accept that this might cause some consternation amongst those Respondents for whom the bushfire matters were of particular concern and importance. However, this is the way in which the Scheme operates and is a consequence of clause 13.02-1S being included in the Scheme as policy, rather than as a control.
12. Whether a permission should be granted under the BMO will be subject to a comprehensive assessment by the Tribunal in its assessment of the proposal, however, the Respondents are not entitled to be involved in that process, on that particular matter.
13. The Respondents are able to be involved in the assessment of the remaining four permissions, however, no submissions may be made in relation to clause 13.02-1S as we will take clause 13.02-1S into account in assessing the permission under the BMO.

1. Accordingly, for the above reasons, my answer to the question:

What is the effect of the exemption contained in clause 44.06-7 of the BMO upon the involvement of third parties in the consideration of bushfire risk pursuant to other clauses of the Scheme in the consideration of permit triggers for the proposal other than the BMO?

In the application before us the BMO 'covers the field' with respect to bushfire hazard assessment and management, given the location of the Land in an area subject to extreme bushfire behaviour. As such, clause 13.02-1S will only be taken into account in assessing the BMO permission and will not be taken into account in assessing any permit triggers for the proposal other than the BMO. Accordingly, third parties cannot make submissions or cross-examine any witness with respect to any bushfire hazard matters.

Should the Tribunal hear from third parties regarding bushfire risk where the exemption applies?

If the exemption applies to third party involvement in this proceeding, should the Tribunal nevertheless hear from third parties with respect to bushfire related matters to which third parties are not entitled to make submissions?

1. This question addresses the submissions seeking, first, that the Tribunal exercise its powers under section 60 of the VCAT Act or secondly and alternatively, to direct that the Council include the submissions of the community in its submissions. I note that the Council resisted the latter request.
2. Above I have found that:
   1. Third parties are not entitled to be involved in the Tribunal's consideration of the permit trigger under the BMO through the making of submissions or the cross-examination of any witness dealing with the BMO permission sought; and
   2. In the application before us with respect to the permissions other than the BMO, clause 13.02-1S will not be taken into account by the Tribunal in assessing those other permissions and third parties are similarly not to make submissions on bushfire hazard issues with respect to those permissions.
3. As such, this third question arises because third parties are not entitled to make submissions with respect to bushfire hazard issues yet seek to be given the opportunity to do so.
4. With respect to the first request, I refer to the Tribunal's comments in West Valentine:
   1. It was submitted by the objectors that it was inequitable for them to be denied the opportunity to be heard in respect of this permit application when they are directly affected. I note that the Tribunal has a broad power under Section 60 of the Victorian Civil and Administrative Tribunal Act 1998 to join persons as a party to a proceeding. However, even if it is open to the Tribunal to join an objector as a party pursuant to this provision when they are otherwise exempt from review rights, I consider it would need to be a very unusual circumstance to justify an exercise of the Tribunal's discretion pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act contrary to the quite explicit scheme of exemption of objectors from reviews in certain classes of permit application.

1. The objectors' concerns about equity are not determinative of the issue of whether they should be made parties. They are not entitled to be parties pursuant to the Planning & Environment Act and the provisions of the Heritage Overlay, and those provisions cannot be altered by the Tribunal. Such an explicit scheme should not be circumvented by the Tribunal through the exercise of its powers under section 60 of the Victorian Civil and Administrative Tribunal Act unless there are very compelling reasons to do so. Such circumstances do not exist in this case. In reality however, their objections were taken into consideration by the responsible authority when it decided to refuse to grant the permit and their concerns are reflected in the grounds of refusal. The objectors may reasonably anticipate that the responsible authority will address their concerns in the submission it makes to the Tribunal at the hearing, so far as the concerns are relevant to the ambit of discretion being exercised in the case.
2. My conclusion is that the objectors are not people who are parties to this application for review by virtue of the provisions of the Planning and Environment Act 1987 and there is no justification for joining them as parties pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998. Their requests to be made parties and to have their objections considered are therefore refused.

1. Similarly, I find that in a case such as this, where there is what I regard to be a clear system that has excluded the involvement of third parties from a decision under the BMO, it would fly in the face of that explicit system to enable Respondents to be a party to the decision regarding the BMO by way of an order under section 60 of the VCAT Act. I agree with the comments in West Valentine that in the context of this explicit system, the Respondents' submissions regarding fairness and community involvement are not determinative of the issue of whether they should be made parties.
2. That is not to say that there will never be an instance where it is appropriate to utilise the power under section 60 to enable the involvement of someone who is not otherwise a party; indeed, the Tribunal has used that power in this very proceeding to join the CFA as a party to the application. However, there needs to be compelling and exceptional reasons to do so. In the case of the CFA's involvement, given its statutory role in providing referral advice to a decision-maker regarding bushfire risk, I regard there was compelling and exceptional reasons to exercise that power: clause 44.06-6 specifically contemplates the CFA's involvement in decision-making.
3. However, in the circumstances of the Respondents to this proceeding, I have not heard anything that makes me think that an order should be made under section 60 of the VCAT Act to circumvent the intention of the Scheme and the Act. By contrast, clause 44.06-7 provides that third parties are not to be involved in the decision-making.
4. In relation to the second request, I am not prepared to make either an order of the kind made in Terminals or the elevated order sought by Ms Whitehead.
5. Terminals was a case brought under section 79 of the Act involving a permit trigger for buildings and works under the Special Use Zone 6 in circumstances where the use was existing and as of right. An exemption was present in the zone in relation to third party notice, decision and review rights for buildings and works associated with a section 1 use. The Tribunal explained that notwithstanding the permit application being exempt from public notification and third party appeal rights, the council undertook informal public notification of the proposal and received a number of objections. The applicant had served a copy of its application for review on the people who had lodged objections and a number of those people had lodged statements of grounds with the Tribunal.
6. In that case, Deputy President Gibson observed that there is always a risk when a council undertakes informal public notice that unrealised expectations will be created about the ability of those people to participate in the ultimate review proceeding. Deputy President Gibson was prepared to extend the duration of the hearing to enable the council to incorporate community spokespeople in its presentation, if it so wished. I note that Deputy President Gibson did not order this to occur.
7. As stated, the Council in the present case resists the orders sought by Ms Whitehead in this respect. I am not bound by previous decisions of the Tribunal, although I accept that determinations by a Deputy President in the Planning and Environment Division are highly persuasive. My observation is that whilst the Council may inform itself as it sees fit, it would be unusual for the Council to give a voice to third persons, through the Council's presentation of its case, in respect of a decision that the Scheme and the Act exempts from third party notice and review. It would seem to go against the presence of the exemption.
8. In any event, I am not prepared to make the order sought by Ms Whitehead because I do not think that it is appropriate to make orders directing the Council as to the substance of how it will run its case. That is a matter for the Council, and not the Tribunal, to decide and it has indicated that it would resist the Tribunal making orders giving such directions. Furthermore, in circumstances where third party review rights are not present with respect to the BMO, and in light of my observation in the preceding paragraph, I do not regard it as being appropriate for the Tribunal to be involved in arranging a way in which the Scheme and the Act can be circumvented.
9. As such, my answer to:

If the exemption applies to third party involvement in this proceeding, should the Tribunal nevertheless hear from third parties with respect to bushfire related matters to which third parties are not entitled to make submissions?

1. My answers to the three sub-questions I formulated are as follows:

Question

What is the effect of the exemption contained in clause 44.06-7 of the BMO upon the involvement of third parties in the consideration of the permit trigger under the BMO in this proceeding?

Answer

Third parties are not entitled to be involved in the Tribunal's consideration of the permit trigger under the BMO through the making of submissions or the cross-examination of any witness dealing with the BMO permission sought.

Question

What is the effect of the exemption contained in clause 44.06-7 of the BMO upon the involvement of third parties in the consideration of bushfire risk pursuant to other clauses of the Scheme in the consideration of permit triggers for the proposal other than the BMO?

Answer

In the application before us the BMO 'covers the field' with respect to bushfire hazard assessment and management, given the location of the Land in an area subject to extreme bushfire behaviour. As such, clause 13.02-1S will only be taken into account in assessing the BMO permission and will not be taken into account in assessing any permit triggers for the proposal other than the BMO. Accordingly, third parties cannot make submissions or cross-examine any witness with respect to any bushfire hazard matters.

Question

If the exemption applies to third party involvement in this proceeding, should the Tribunal nevertheless hear from third parties with respect to bushfire related matters to which third parties are not entitled to make submissions?

Answer

No.

1. My answer to overall Question of Law posed by Senior Member Cimino is:

Question

What is the extent to which respondents can make submissions about matters relating to the Bushfire Management Overlay and other bushfire related matters having regard to the exemptions from notice, decision requirements and rights of review set out in Clause 44.06-7 of the Hepburn Planning Scheme?

Answer

Third parties are not entitled to be involved in the Tribunal's consideration of the permit trigger under the BMO through the making of submissions or the cross-examination of any witness dealing with the BMO permission sought.

In the application before us the BMO 'covers the field' with respect to bushfire hazard assessment and management, given the location of the Land in an area subject to extreme bushfire behaviour. As such, clause 13.02-1S will only be taken into account in assessing the BMO permission and will not be taken into account in assessing any permit triggers for the proposal other than the BMO. Accordingly, third parties cannot make submissions or cross-examine any witness with respect to any bushfire hazard matters.

The Tribunal will not hear from third parties with respect to bushfire hazard related matters.

1. The practical consequences of the Tribunal's answer to the Question of Law is that some statements of grounds and submissions that have been lodged by parties address topics that the party is not entitled to address.
2. In light of this, the Tribunal has made orders:
   1. directing amended statements of grounds to be received from those parties whose statement of grounds addressed topics that the party is not entitled to address;
   2. listing an administrative mention if any party seeks to raise a procedural issue arising from the amended statement of grounds raised by another party, including whether the hearing duration is likely to be effected;
   3. directing amended submissions to be filed 10 business days before the hearing; and
   4. directing an amended Tribunal book to be filed five business days before the hearing.
3. The amended submissions are being required 10 business days before the hearing, rather than five business days, to enable the Applicant time to prepare a revised Tribunal book that encompasses the revised submissions.
4. As a separate matter, the Tribunal has also confirmed that the hearing will remain online. This decision has been made mindful of the submissions made by the parties on this matter during the hearing, including by the number of Respondents who are unrepresented and live quite some distance from King Street and who requested for this proceeding to continue online as it has begun in that fashion.

[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] The submissions and evidence 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.

[4] Planning permit application report, Clement Stone, page 12.

[5] [2021] VCAT 546.

[7] It is observed that clause 52.12 'Bushfire Protection Exemptions' of the Scheme is also related to bushfire matters but this was not the focus of submissions from the parties.

[8] Noting that given the operation of section 83 of the Act, the CFA was not automatically a party to this application for review.

[9] And confirmed in the Tribunal's written order dated 4 November 2022.

[10] Noting that the subdivision objectives are not relevant to this proceeding.

[11] A common example is by generating a VicPlan Planning Property Report.

[12] [2005] VCAT 224.

[13] [2021] VCAT 1191.

[14] [2022] VCAT 326.

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

[16] (Red Dot) [2019] VCAT 323.

[17] [2005] VCAT 265.

[18] With reference to the Advisory Note, page 1.

[19] Section 52(1)(ca) and (cb) deal with when a registered restrictive covenant applies to the subject land and is not applicable here.

[21] Or under section 57B of the Act in the case of notice of an amended application.

[27] Pursuant to section 4(2)(d) of the Victorian Civil and Administrative Act 1998.

[28] Unless a schedule to the overlay specifies otherwise: clause 44.06-6 of the Scheme.

[29] Assuming that the CFA does not object when acting in its capacity as a determining referral authority under clause 66.03 of the Scheme.

[30] Noting that this term is not defined in the Scheme or the Act.

[31] [2003] VSCA 83, specifically [8], [14] and [17].

[32] Unless the application meets all of the requirements specified in a schedule to the BMO.

[33] Amendment VC140 was gazetted on 12 December 2017.

[34] The term 'bushfire affected areas' is also used in clause 13.02-1S under the Strategy for 'Areas of biodiversity conservation value'.

[35] [2020] VSCA 121.

[36] Brunswick Investment at [98(d)].