Medium Neutral Citation [2002] VCAT 441

1. The matter will be adjourned to a directions hearing at 9.30am, 28 March 2002.

2. On or before 21 March 2002 the responsible authority must file and serve minutes of proposed Order to give effect to these reasons.

Dominic Scally of Best Hopper represented the Responsible Authority / Permit Applicant.

Elio Comello, Joseph Saliba, Robert Andrew, Judith Hindle and Nessie Hardy, Applicants for Review in person.

1. On 5 December 2000 Hobsons Bay City Council lodged Application No P00-802 with itself as Responsible Authority under the Hobsons Bay Planning Scheme seeking a permit for the use and development of land identified by reference to a series of title particulars which, according to the present use panel the application was "Weaver Reserve used as a public reserve and road reserve for bus shelter", to be used and developed for "two buildings for life savings (sic) club Altona, kiosk and public toilet." The land was also identified by the address "139 to 153, The Esplanade, Altona."

2. The matter was considered by a special meeting of the Council's Planning Committee on 17 May 2001. According to the Officer's report it is:

"proposed to construct two buildings for the purpose of a life saving club. The main building will be on the north side of The Esplanade in the Weaver Reserve. This will consist of a two-storey building. The ground floor will include a board and boat store, change rooms, gymnasium, kitchen, hall, kiosk and paved area. The first floor will consist of a deck, recreation room and administration office. There are 7 car spaces proposed on site.

A second building is proposed on the southern side of the road and will include the construction of an observation tower, which will include on the ground floor a storage area and public toilet. The first floor will include an observing room, toilet and radio room. The building will be sited on the site of the existing bus shelter. Therefore the bus shelter will be demolished along with two other concrete structures on the beach."

3. Council received some 13 objections to the proposal. There had been an informal reference to the Department of Natural Resources and Environment which raised no objection to the proposal.

4. The Committee referred the matter to the Full Council. On 19 June 2001 Council determined to issue a Notice of Decision to Grant the Permit the subject of some 12 conditions.

5. Section 96 of the Planning and Environment Act 1987 requires that where a Responsible Authority seeks a permit for the use or development it must obtain the permit from the Minister for Planning and Environment. The section provides that the Planning Scheme may exempt a Responsible Authority from that requirement. Clause 67 of the Hobsons Bay Planning Scheme exempts this class of proposal from the requirement that a permit be obtained from the Minister.

6. On 9 June a group of objectors eight in number headed by Mr Elio Comello lodged an application to review Council's determination to grant the permit. Mr Saliba an owner and resident whose property is immediately adjacent to the subject site lodged a separate application for review.

7. The proposal would affect two areas close to the Altona foreshore. The main area is on the northern side of The Esplanade close to the T-intersection between The Esplanade and Bent street. The Esplanade runs east-west and immediately abuts the foreshore. The beach runs east west parallel to The Esplanade. Bent Street runs north south and The Esplanade is at its southern extremity. The Weaver Reserve is an area of open space occupying almost all of the area fronting the northern side of The Esplanade and immediately opposite the foreshow between Pier Street and Bent Street. Unsurprisingly the intersection of Pier Street with The Esplanade is immediately opposite a pier which runs from the beach into the sea for some distance. The property immediately on the corner of Bent Street and The Esplanade is No 137 The Esplanade and is occupied by an ice cream shop and residence owned by Mr Saliba one of the parties to this proceeding.

8. The proposal entailed the erection of a new headquarters for the local life saving club on the eastern portion of the Weaver Reserve (with its western boundary abutting Mr Saliba's ice cream shop) with a tower and beach pavilion on the southern or seaward side of The Esplanade opposite the Weaver Reserve. The pavilion was intended for use as an observation tower boat storage, first aid facility and public toilet. Its site was to be the site now occupied by a concrete shelter structure situated between The Esplanade carriageway and the seawall. The existing concrete shelter has been described as a "bus shelter". The Objectors deny that The Esplanade is or ever has been used as a bus route. The precise history of this "shelter" has not been fully explained. In addition to "concrete shade structures" situated on the beach itself were to be demolished.

9. The matter was listed for directions before Mrs Rickards on 4 December 2001. She directed that there be a preliminary hearing on 25 and 26 February 2002 to consider and determine the following matters which had been raised by the Objectors/Applicants for Review namely:

(i) The issue of consent under the Coastal Management Act 1995 and its effect on the application for permit.

(ii) The content of the permit application including the description of the site, the subject of the application and the need for re-advertising.

Mrs Rickards gave consequential orders as to the filing and exchange of legal contentions.

10. As previously noted the proposal was referred to the Department of Natural Resources and Environment for comment "pursuant to Section 52 of the Planning and Environment Act 1987" the reference was received by the Department on 3 January 2001 and plans were received on 9 January 2001. Council's Town Planner received a letter from the Department's Regional Manager for the Port Phillip Region dated 20 February 2001 in which he stated "you are advised that DNRE does not object to the planning permit application...." The letter furnished a series of comments. The letter also stated:

'it is noted that the proposed beach pavilion and club house sites are freehold land and hence consent under Section 37 of the Coastal Management Act 1995 is not required as the consent provisions only apply to the use and development of Coastal Crown land."

11. The preliminary hearing came on before me on 25 February 2002. I heard lengthy submissions and some viva voce evidence and reserved my decision.

12. I turn to the matters which Mrs Rickards directed to be the subject of separate and preliminary determination.

Consent under the Coastal Management Act 1995

13. Section 37 of the Coastal Management Act 1995 prohibits any person from using or developing "Coastal Crown Land unless the written consent of the Minister has first been obtained." It is common ground that the area occupied by the "bus shelter" and the beach itself are Coastal Crown land. The demolition of the "bus shelter" and the "shade structures" (as they have been described) on the beach together with the construction of the proposed beach pavilion and its use constitute the use and development of coastal crown land. Consent was required under the Act. Section 38(2) of the Act provides as follows:

"(2) if the responsible authority under the Planning and Environment Act 1987 gives the Minister, the Secretary or the Department of Natural Resources and Environment, as a referral authority under that Act, a copy of an application under that Act for a permit for a use or development of coastal crown land, that application is deemed also to be an application under this section for consent to that use or development and unless consent has already been given under this division for that use or development."

Section 39 requires the Minister to give his or her consent "within 28 days after receiving an application for consent to use or develop coastal crown land.". sub-section (2) authorises the Minister to "ask for additional information in respect of an application". Sub-section (3) provides:

"if additional information is requested, the Minister must decide the application within 28 days after receipt of that further information."

Section 40(1) of the Act provides the Minister with 3 options as to an application either to consent, the consent subject to conditions or to refuse consent. Sub-section 2 sets out a series of policy documents and other matters which the Minister must consider. Sub-section 3 of Section 40 provides:

"if the Minister fails to make a decision within the time required under Section 39, the Minister is deemed to have refused to consent to the use or development."

14. In accordance with Section 38(2) of the Act the reference made to the Department of Natural Resources and Environment in early 2001 might have constituted a request for the Minister's consent. Mr Scally who appeared on behalf of the City of Hobsons Bay was unable to furnish me with copies of the correspondence which the Department of Natural Resources and Environment was responding to in its letter dated 20 February. It is obvious from the quoted passage in the letter that the Department had not appreciated, perhaps because the form of the material referred to it, that the proposal for use and development affected coastal crown land. As we will see one of the points pressed by the Objectors/Applicants for Review in this proceeding is that the application for permit and the advertising material not only did not make clear that coastal crown land was affected by the use and development proposal but according to the submission was calculated to mislead on this point. At any rate whatever potential the reference might have had to bring forth a consent from the Minister under the Coastal Management Act because of the misconception no such consent was in fact forthcoming.

15. There matters rested until a further letter was sent by the City of Hobsons Bay specifically seeking to consent pursuant to section 38 of the Coastal Management Act 1995. I have not seen the text of that letter and therefore cannot say whether it was directed to the Department, Secretary or the Minister herself. Evidently, further information was sought from the Council, the last piece being given sometime in February this year. As a result two consents under section 40 of the Coastal Management Act 1995 both dated 18 February 2002 were issued by delegates of the Minister. Mr Doug Miller "Manager Coastal Port Phillip Region" furnished a consent bearing that date subject to six conditions for "demolition of two concentrate shade structures"; and Ms Judy Backhouse, Regional Manager Port Phillip Region, issued a similarly dated consent under section 40 for "use and development of land for a beach pavilion for the Altona Lifesaving Club for use as an observation tower, boat storage, first aid facility and public toilet." This latter consent was subject to some nine conditions.

16. In a letter to the Tribunal's Senior Registrar dated 13 February 2002, Ms Backhouse furnished the following account of events:

An application for consent for the beach pavilion was received from Hobsons Bay City Council by NRE on 2 November 2001. The Department requested further information from Hobsons Bay City Council with respect to the application pursuant to section 39 of the Coastal Management Act. In particular, the Council was asked to review the design and function of the beach pavilion in respect to the bulk and size of the proposed developments, the proposed environmental management practices to protect the coastal and marine environments, and issues regarding safety and access to the proposed development across the bike path.

Hobsons Bay City Council officers and an NRE officer, Sally Burgess, met to discuss an alternative design for the beach pavilion on 18 January 2002. At this meeting NRE requested further clarification on the environmental sustainability of the boat wash-down area and the risk of conflict between users of the Bay Trail, members of the public, and life saving personnel accessing the beach pavilion.

In response to the above request, Council further refined the design and submitted revised plans on 11 February 2002. After assessment of the revised plans, the Department issued consent for the construction of the beach pavilion pursuant to section 40 of the Coastal Management Act, subject to a number of conditions.

17. It was common ground between the parties that compliance with the provisions of the Coastal Management Act 1995 as to ministerial consent was a mandatory requirement for the grant of the permit for use and development sought by the City of Hobsons Bay. It may be that the provisions already quoted from the Coastal Management Act would have that affect. If there were any doubt it is removed by the terms of the Planning and Environment Act 1987, the statute which regulates the grant planning permits. Section 61(3) provides:

(a) must not decide to grant a permit, use or develop coastal Crown land within the meaning of the Coastal Management Act 1995 unless the Minister administering that Act has consented under Act to the use or development; and

(b) must refuse to grant the permit if the Minister administering that Act has refused or is deemed to have refused under that Act to consent to that use or development.

18. It is clear therefore that the Council acted in breach of both the Coastal Management Act 1995 and section 61(3) of the Planning and Environment Act 1987 when determining to grant that permit for the present proposed use and development.

19. A consent has now been granted ex post facto. Even though the consent was furnished beyond the 45 day limit from the date upon which it was requested by Council, namely 2 November 2001, the provisions of the Act which in effect postpone the running of the 45 days whilst further information is requested by the Minister, mean that there is now an operative consent under the Coast Management Act 1995.

20. These matters if relied upon in a judicial review proceeding would be an unanswerable attack upon the steps which the Council has taken. By virtue of section 52 of the Victorian Civil and Administrative Tribunal Act 1998 the State's courts have no jurisdiction to deal with this matter save in the case of "special circumstances that justify the hearing by the court" because these review proceedings are available and have not been completed. The situation in the Tribunal as to this and other non-compliances or alleged non-compliances to be referred to below is materially different than it would be in court. Where the Tribunal is conducting a review proceeding under planning enactments (and it is not disputed that the present proceeding is of such a character) it has power to disregard failures to comply under clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 which states as follows:

"The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers its in the interests of justice to do so."

21. Mr Scally who appears for the Council submits that with respect to the failure to obtain the Minister's consent until after the event I should exercise the Tribunal's power to "disregard that failure" because in his submission it is in the interests of justice to do so.

22. Mr Comello who acted as the principal spokesman for the objectors/applicants for review did not dispute the Tribunal's power to disregard this matter under 62. He continued:

"We note, however, that such power should only be enacted if the Tribunal considers it in the interests of justice to do so.

We suggest that the planning application and decision making process is so riddled with irregularities, variances and oversights that it would be best to recommence the planning process from scratch.

The principal issue in this case is that the Council is both the applicant and responsible authority. In affect it has acted as judge in its own cause, contrary to the rules of natural justice. Given such circumstance it is paramount that the Council be required to comply with all requirements of its planning scheme and relevant legislation, as it would demand of another applicant - no more no less.

Many of the irregularities have occurred as a result of lack of attention to detail and the preparation of the planning application by the Council as applicant, and lack of application of the Hobsons Bay Planning Scheme by the Council as responsible authority. We are of the opinion that Hobsons Bay Council has failed to observe one or more of the rules of natural justice, and has not been impartial in its determination of the permit application given that Council's interest and resolution to sell the Weaver Reserve, the existing site of the Altona Lifesaving Club. Such interest and attention should have been clearly stated and enunciated in the public notice of application for the proposed development."

23. The other "irregularities" and "variances" will be dealt with later.

24. What constitutes "justice" in the Tribunal must be seen in light of section 98 of the Victorian Civil and Administrative Tribunal Act 1998 which characterises the manner in which Tribunal proceedings should be conducted. Subsection (1) provides:

(b) Is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices and procedures;

(c) May inform itself on any matter as its sees fit;

(d) Must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, [my emphasis] as the requirements in this Act and the enabling enactments and a proper consideration of the matters before it permit.

25. Achievement of these objectives would generally require that where there are complex statutory processes are laid down, so long as the substantive objective is ultimately obtained, it would not be in the interests of justice to send the entire proceeding back to "go" because the steps had been taken in the wrong order. It is a well recognised maxim in that "justice delayed is justice denied". This maxim has particular point in a Tribunal which has a specific statutory obligation to dispose of matters speedily.

26. The objective of a merits review process is to reach the "correct or preferable decision" on the merits not to subject the process of the primary decision maker to analysis and reverse or set aside the decision based upon the adherence of the primary decision maker to proper statutory processes. This matter is the province of judicial review. Parliament has determined by the enactment of section 52 of the Victorian Civil and Administrative Tribunal Act 1998 that the present issues are to be dealt with solely (saving exceptional circumstances) by merits review rather than judicial review.

27. In my view the interests of justice do favour disregarding the failure to obtain ministerial consent prior to Council's determining permit application to itself. As to the other "irregularities" and "variances" as will appear later I believe that the injustice which might flow from them can be remedied by procedures other than simply avoiding the process up to now, as the present applicants for review would have done.

28. I am fortified in the view that it is proper to disregard the non-compliance with respect to ministerial consent by the following further consideration. There is no provision in the Coastal Management Act 1995 for public consultation or advertisement with respect to Ministerial consents. Had the City of Hobsons Bay proceeded as the Act required it to do, namely to obtain the consent before considering the permit application, it could with complete propriety have obtained it without the present applicants for review even knowing that an application was on foot. As it is, as Mr Comello conceded, these objectors have had the opportunity of making submissions to the Minister's departmental officers which have been taken into account in the revised plans and the conditions which have been imposed on the two consents. Council's breach of the two statutes therefore has ultimately secured a fuller and more complete ministerial consent process than otherwise might have occurred.

29. Finally I should note that Balmford J in Rumpf v the Mornington Peninsula Shire Council [2000] VSC 311; (2000) 2 VR 69 accepted that the Tribunal had power under clause 62 to disregard a failure to obtain Ministerial approval under the Coastal Management Act 1995.

30. Notice of application for permit was circulated by post and published in a local newspaper. In addition a sign was erected on the Weaver Reserve on the south western corner at the t-intersection of Pearce Street and the Esplanade. The applicants for review challenge the adequacy of the permit application both in its text identification of land and so forth and also as to the lack of certain material by way of attachment. It is common ground that the plan lodged with the permit application and considered by Council did not include any dimensions. Subsequent plans including those ultimately lodged with the Minister for consent under the Coastal Management Act 1995 remedied these deficiencies. No landscape plan has been lodged either at the initial process or as yet; but Council's notice of decision to grant imposed a condition on the proposed permit which would require landscape plans be provided. The application for planning permit identified the land as having the street address of "139 - 153 The Esplanade" Altona. It described it as being three lots namely lots 3 and 4 on plan of subdivision 57350 and part of lot 16 on plan of subdivision under 2102 contained in some three titles certificates of title Volume 2147 folio 429330 Volume 8378 folio 590 and Volume 8378 folio 591. Whilst the panel "describe the land as used now" refers to the "bus shelter" none of the land descriptions appear to refer to the area to be occupied by the "beach pavilion".

31. Mr Comello on behalf of his fellow applicants for review relied upon the following faults in the permit application form:

1. The application for permit is incomplete in that the applicant has failed to sign the declaration that all information given is true.

2. The application contains information that is not correct in that references made to a Certificate of Title that is in fact a cancelled title (Volume 2147 folio 429330).

3. The applicant does not own all of the land affected by the proposed application as is claimed by the signatory.

4. The address of the land does not relate to the proposed development.

32. It is undeniable that the Council officer lodging the application, Mr Baker, has not completed the declaration that all information contained therein is true; moreover in so far as Mr Baker has signed on behalf of the Council a statement "I am the owner of the land. I consent to this application being made" that statement is incorrect. The beach pavilion is to be erected on coastal Crown land, access to the clubrooms on the Weaver Reserve is to be had via an area designated as "road" on Certificate of Title Volume 9500 folio 372 which is part Mr Saliba's land. It runs from the back of the area occupied by Mr Saliba west from the western side of Bent Street across the rear of Mr Saliba's property into the reserve. I will deal in a subsequent part of these reasons with Council's entitlement to use this access as part of the development.

33. Mr Comello carried out a reconciliation of the development proposal title boundaries relating it to the boundaries of Mr Saliba's property. He complained that this was a process which Council should have carried out itself.

34. He observed that the cadastral map for the area showed each of the three titles on the northern side of The Esplanade as having the street number 139. The reference to a street address of 139 - 153 could in his submission create substantial confusion and was open to a large number of interpretations.

35. The correct identification of the area to be occupied by the beach pavilion was, he said, as shown in the ministerial consent dated 18 February 2002, namely "Coastal Crown land being government road, known as The Esplanade, opposite Weaver Road and currently occupied by a concrete bus shelter."

36. The formal requirements for permits are set out in section 47 of the Planning and Environment Act 1987. That provision states:

47(1) If a planning scheme requires a permit to be obtained for the use or development of land, or any other circumstances mentioned in section 6A(2) or for any combination of use, development and any of those circumstances, the applicant for permit must -

(a) be made to the responsible authority in accordance with the regulations; and

(c) be accompanied by the information required by the planning scheme; and

(d) if the land is burdened by registered restrictive covenant, be accompanied by a copy of the covenant; and

(e) if the application is for a permit to allow for the variation of a registered restrictive covenant or anything authorised by the permit would result in a breach of registered restrictive covenant of it be accompanied by:-

(i) information clearly identifying each allotment of lot benefited by the registered restrictive covenants; and

(ii) any other information that is required by the regulations.

37. Mr Comello conceded the prescribed fee had been paid he did not suggest that the form upon which the applicant was made was other than in accordance with the relevant regulation. His criticism as previously noted were that the regulation form had not been properly completed.

38. Mr Comello relied upon a judgement of Balmford J in No 2 Pitt Street Pty Ltd v Wodonga Rural City Council [1999] 3 VR 439. Her Honour was there concerned with a challenge to the validity of a permit granted by the defendant council to refer to Regulation 16 of the Regulations made pursuant to the Planning and Environment Act which stated inter alia:

"An application for a permit under section 47(1)A of the Act must be made in writing to the Responsible Authority and must -

(a) state the name and address of the applicant; and

(b) indicate clearly the land affected by the application by:-

(ii) stating the title particulars of the land; or

(c) state clearly the use, development or other matter for which the permit is required; and

39. Her Honour concluded that the application made for the permit under challenge was not in compliance with the statute and regulations in that the development upon proper analysis extended substantially beyond the areas described in the application as being comprehended in the proposal. She summarised the plaintiff's point on these points as follows:-

"The plaintiff claims that the land referred in the notice of application was not the land referred to in the application; and that the council acted unlawfully in granting the permit for land for which an application had not been received and for which no application had been given." [1999] 3 VR 439, 448 at [96].

40. Her Honour observed that the effectiveness of such an attack was not dependent upon proof that someone was misled by the notice. "The absence of evidence that anyone was misled by the notice of application cannot be taken as evidence that no-one was misled; nor is such evidence necessary." [1999] 3VR439, 470 at [102]. She referred with approval to the remarks of Tadgell J in Marock Pty Ltd v Billjoy Pty Ltd [1981] VicRp 41; [1981] VR 413, 419 to the following effect:-

"It might be objected that the approach I have taken overlooks the possibility that potential objectors might not have been mislead. It might be thought that any intelligent potential objector who was enthusiastic enough to have inspected the applicant documents in the first place would have made it his business to discover what the permit sought was for, that he might have inferred from the document, or that he could easily have ascertained it by asking an officer of the Responsible Authority, even if he had not discovered it from the newspaper office. That kind of argument is, in my opinion, beside the point. It might have been possible to infer by speculation or deduction what the application was really about, or to ascertain what it was about by asking appropriate questions in the likely quarter. Perhaps some people did so, but perhaps others did not. If they did not, I would not blame them. The aim of the Town and Country Planning Act [the forerunner of the Planning and Environment Act] is, I think, such as to discourage speculation and inference about the purpose for which a planning permit is sought and to encourage a plain statement of purpose."

41. Someone who read the notice on the Weaver Reserve to which I will refer shortly would have been alerted to the fact that there was to be a "beach pavilion" on the south side of The Esplanade on Coastal Crown land. One who read the statement on the permit application form as to the purpose for which the land is now being used would have seen the reference to the "the bus shelter" and could have inferred that the coastal Crown land was to the south of The Esplanade; but for the reasons given by Tadgell J in Marock Pty Ltd v Billjoy Pty Ltd and approved by Balmford J in the No 2 Pitt Street case I believe it would be inappropriate to regard the land descriptions as adequate. It goes without saying that if an interested person had done what the present applicants for review did, namely conducted a full title search ascertaining the history of the relevant titles and sub-divisions, the mystery of the "cancelled" title would have been unravelled. Again it would not be proper to expect interested persons to carry out all those inquiries. It is incumbent upon the permit applicant to make these matters clear on the face of the permit application. Moreover, unravelling any of these mysteries was made the more difficult by the absence of dimensions on the lodged plan.

42. So far as the street address is concerned, and Mr Scally observed that according to Council's records the street address quoted was the correct. Moreover, as to the numbers from 141 to 153 there are no other tenements in The Esplanade with those numbers and so no confusion will arise.

43. The quotation title particulars, street addresses and so forth must be seen in light of the requirements of the regulation. The regulation does not require that each of, (a) lot on plan of subdivision, (b) title particular, and (c) street address be quoted. What it does require is that the land be adequately identified by one or more or a combination of those items. Since the number "139" appears to appertain to the entire Weaver Reserve, 139 to 153, if one regarded it as a correct address, would extend to the whole Weaver Reserve. The present proposal affects only the eastern position of that reserve. The street address in itself does not adequately achieve the result of identifying the land. The title particulars are not current and so in themselves would not adequately identify the land. The plans do not include dimensions and so a proper reconciliation to title boundaries and the like further the plans appear to depict the "access road" as part of the development. This is part of the title of Mr Saliba's land and this is not referred to at all.

44. In my view the permit application did not adequately identify the portion of the proposal to be located on the northern side of The Esplanade. Except by way of inference and guesswork, it does not identify the areas to the south of The Esplanade at all.

45. Mr Scally said that Council would not resist an application for re-advertisement of the permit application consistent with the matters to which I referred relative to the application of clause 62 above. In my view subject to a process of readvertising it would be in the interests of justice to enable this matter to go forward without sending it back to scratch again. A proper re-advertisement would remove all the elements of perplexity and confusion referred to and relied upon by Mr Comello and his fellow applicants for review.

46. Attacks were made on the form of the sign and also the newspaper advertisement. Many of those related to the same issues as have been dealt with in respect to the permit applicant itself. There are some other matters, for instances reference to "public toilets" when the proposal provided for one unisex toilet to be open to the public and reference to the life saving club "building" when in fact two buildings, namely the main one on the Weaver Reserve and the "beach pavilion", were involved. These matters likewise can be dealt with by readvertising. In so far as the sign was not on the land affected by the proposal as provided for in section 52(IAA) of the Planning and Environmental Act 1987 that too can be cured by readvertising.

47. Mr Comello also submitted that the permit application was defective in so far as it failed to comply with Council's Landscape Designs Guidelines (1999). He referred to the passage in the Guidelines under the heading "Council's policy" stating "all planning applications involving development of a site must include a professionally prepared landscape plan." Also included in the Guidelines is a "checklist for planning permit submissions" which states to lodge a planning permit application, the basic steps involved are to:

* attach the necessary plans (landscape plans need to be submitted as part of all planning applications ... ;

48. Mr Comello referred to the closing section of the Guidelines headed "Implementing the Guidelines" which states that "Council enforce adherence to the content and spirit of these Guidelines in all development proposals."

49. The requirements for a planning permit application are to be found in section 47 of the Planning and Environment Act 1987 and the passage from the Regulation quoted in reference to the judgement of Balmford J in the No 2 Pitt Street case. There is a requirement to attach a landscape plan or a Certificate of Title only if the relevant planning scheme requires this to be done. The Guidelines are not part of the planning scheme in the ordinary sense. They could be regarded as part of the Planning Scheme if they were "incorporated documents". See section 6(1)(j) of the Planning and Environment Act 1987. Clause 81 of the Planning Scheme identifies the documents which are incorporated in the Hobsons Bay Planning Scheme by means of a Schedule. It goes on to state that documents not set out in the Schedule are not to be regarded as incorporated. The Guidelines do not appear in the Schedule.

50. The Guidelines are mentioned twice in clause 21.11 of the Scheme, as part of the Municipal Strategic Statement. The Guidelines are mentioned twice, as means to achieve strategic objective. Aside altogether from the fact that these guidelines are not part of the planning scheme, it is inherently unlikely that a document styled "Guidelines" would, all other things being equal, be apt to create a mandatory obligation.

51. I reject Mr Comello's submissions with regard to the Landscape Guidelines.

52. The submissions on behalf of the applicants for review with respect to the right of access issue were presented by Mr Andrew. It was common ground that access to the development is provided for by means of an area designated road at the rear of Mr Saliba's shop and residence running west from Bent Street. It is included as part of the Certificate of Title relative to his house. The area designated "road" in LP23118 which was lodged in 1951. It was common ground that at present this "road" is closed off by a gate is at the entrance to Bent Street. The key is held by the Council. Recently as a result of demands by his solicitors, Mr Saliba, who purchased his property in 1999 has been given a copy of the key. He says that he uses the "road" from time to time to park his car.

53. Mr Andrew said that a former owner of Mr Saliba's shop and residence told him that the gate was erected sometime around 1987. This was hearsay evidence. In contrast, an officer of the former City of Altona and now of Hobsons Bay City Council, Mr Lee, said that parks and reserves were his administrative responsibility from 1981 to 1994. Throughout that period he said that unhindered access could be gained both for Council officers who frequently availed of it as did members of the public. He described using the access himself from time to time. According to his recollection until he ceded his responsibility of parks and reserves upon a reorganisation of responsibilities in 1994 no gate had been erected.

54. Council's initial submission was that the "road" was a public highway and hence vested in Council. The submission actually pressed the hearing, whether or not the earlier submission was withdrawn, was that Council had acquired an easement of way by way of lost modern grant over the roadway, even if it was to be regarded as remaining vested in Mr Saliba as the present owner of all the land compromised the relevant Certificate of Title.

55. Mr Scally said that his instructions from Council were that if it were held not to have right of access via the roadway it would take the necessary proceedings under the Local Government Act to have the road designated as a public highway.

56. Mr Andrew also submitted that the title to Volume 8398 folio 590 is subject to a reservation contained in title number 241795. The reservation is delineated on a plan which appears to appertain to Mr Saliba's title. It is described "spouting and downpipes etc". The copy plan that I have is difficult to read as to dimensions. The reservation however appears to extend for a distance of 16 feet along or rather parallel to the western boundary of Mr Saliba's property.

57. I am unable to detect how far from that western boundary the reservation runs but it does not look more than one foot or so. The purpose of the reservation is according the relevant transfer for the erection and maintenance of spouting and downpipes and the running of water from the roof of any property on [Mr Saliba's property]" into the adjoining roads. Mr Andrew submitted that the "footprint" of the proposed development infringes upon the reservation.

58. I will deal with this last submission first. The short answer to it is that the reservation was not one of the matters fixed by Mrs Rickards for preliminary determination. It is not properly before me. I heard no submission with respect to the reservation from Mr Scally and not unsurprisingly it forms no part of the statement of legal contentions filed prior to the hearing in accordance with Mrs Rickards directions. The applicants for review's submissions were so lengthy that it may be this matter simply escaped Mr Scally's notice. Since I was not provided with a legible copy of the plan appertaining to the title, nor was I taken in any detail to the plans themselves, it would be unwise for me to attempt to interpret the situation beyond making certain preliminary observations. The "reservation" appears to have been created by a transfer whereby the then owners of Mr Saliba's land and the adjacent land subdivided it and sold the adjacent land which is now part of the Weaver Reserve to third parties. They "reserved" the right to run spouting and downpipes as previously described. According to Words and Phases Legally Defined Supplement 2000 page 339 column 2 under the heading "Reservation":

`The term "reservation" in strict usage identifies something newly created out of land or tenement demised and is inappropriate to identify an exception or keeping back from that which is the subject of the grant [Norton on Deeds, 2nd ed (1928), pp 268-72]. However, in accordance with the Australian usage referred to by Windeyer J in Wade v New South Wales Rutile Mining Co Pty Ltd [(1969) [1969] HCA 28; 121 CLR 177 at 194], "reservation" was apt in [the form] to identify that which was withheld or kept back by the grants made by the Governor-in-Council under the 1910 Act.' Wik Peoples v Queensland (1996) 141 ALR 129 at 245; 71 ALJR 173, per Gummow J.

59. The proper course is to leave this issue for determination by the member hearing and determining this proceeding and finally should it go that far the area involved is so small that it would be wrong in my view to treat this as a situation where Council was not to be regarded as the "owner" of the relevant Certificate of Title. Even although the reservation is conceptually indifferent from an easement its affect is significantly similar, namely that any use or development on Council's land must be so constructed and operated that it does not infringe upon the reservation.

61. Based upon the evidence before me the submission made by Mr Scally that Council would enjoy an easement of right of way in favour of the title of which it owns and which constitutes the Weaver Reserve based on the doctrine of lost modern grant seems to be correct. Mr Lee's evidence is that Council has been using this mode of access to the reserve since he commenced in the employ of the former City of Altona in 1981.

62. According to Bradbrook and Neave, Easements and Restrictive Covenants in Australia (2nd ed 2000) [5.7] page 120 "the essence of the doctrine is that a grant will be presumed by the courts to have been made lost in modern time if enjoyment of the alleged easement for twenty years can be proved." The enjoyment over the relevant period was first by the City of Altona and secondly by the present City of Hobsons Bay. However, in calculating the 20 year period, periods of use by the predecessors entitle can be included "provided that there has been no interruption between the periods." Bradbrook and Neave op it [5.15] page 124 Auckran v Pakuranga Hunt Club (1905) 24 NZLR 235, 240. Section 42 of the Transfer of Land Act 1958 renders Mr Saliba's registered title under the Act subject to "any easements howsoever acquired subsisting over or upon or affecting the land." Section 42(2). The twenty year usage must be "as of right" that is according to the Latin tag "Nec Vi Nec, Clam, Nec Precario". That is without force without secrecy or without permission. There is no evidence of any force or secrecy in the usage. Since the Council held the key to the gate at the head of the roadway, there is nothing to suggest that its use of the point of access was merely with the permission of Mr Saliba and his predecessor. It may be that further evidence would shed a different light on these matters but on the small volume of evidence that I heard the requirements of the presumption of a grant of easement to the Council by lost modern grant appears to be made out.

63. The submission that the roadway was to be regarded as a public highway was not specifically withdrawn. The description by the subdivided owner of this parcel of land is "road" on the 1951 plan of subdivision constituted an offer to dedicate the land as a public highway. Permanent Trustee Company Ltd v Campbelltown Corporation [1960] HCA 62; (1960) 105 CLR 401, 420 for Windeyer J Bass Coast Shire Council v Kings [1997] 2 VR 5, 18 per Winneke P. Of course that offer may be withdrawn if it is not accepted by public use as Winneke P noted in the same passage in the Bass Coast Shire Council case. The evidence as to public use is equivocal depending upon the account that one accepts this road has been closed off as a road since either 1987 or sometime after 1994. None of this is inconsistent with the offer constituted by the 1951 plan of subdivision having been accepted by public usage before that date. One imagines that since the Weaver Reserve is in effect a park, it is likely that there was public use to gain access to the path at sometime before the gate was erected. If that was the case the offer of dedication would have been accepted and the erection of the gate thereafter could not have changed the character of the roadway as a public highway.

64. There is no necessary inconsistency between a public right of way and a private right of way coexisting. Indeed this was the situation in Calabro v Bayside City Council [1999] 3VR 688 where Balmford J dismissed appeal from a determination of this Tribunal declaring that a culdesac was a public highway. The evidence also established that there had been an express easement of way granted over the relevant culdesac in favour of one of the neighbours.

65. Unlike the determination considered by Balmford J in the Calabro's case there was no application before me today for a declaration. I do find however for the purposes of the review application that the evidence establishes an entitlement in the Council to use the roadway for access to the site of the proposed development by reason an easement of way created by lost modern grant. I make no finding as to whether the roadway is or is not a public highway.

66. According to the material supplied to the Tribunal by the City of Hobsons Bay, the application for permit was received in the Town Planning department on 5 December 2000. On 13 December 2000 the Planning and Environment (Restrictive Covenants) Act 2000 commenced. One of the effects of that statute was to require the attachment to a permit application of copies of any registered restrictive covenant which affected the land. Section 214 of the Planning and Environment Act provides that the amendments affected by the Planning and Environment (Restrictive Covenants) Act 2000 applies inter alia to "an application for a permit that was made but not determined by the responsible authority or planning authority or minister before the commencement day." The commencement day is 13 December 2000. The new provisions also apply to an application for review made to the Tribunal on or after the commencement day in respect of a determination made before the commencement day by a responsible authority or planning authority or minister in respect of a permit application." Even although the permit review application was made before the commencement of the Restrictive Covenant Act it would seem that an obligation to attach copies of the restrictive covenant to the application was retrospectively imposed. Certificate of Title volume 7792 folio 192 and Certificate of Title volume 8398 folio 591 are both subject to covenants. If it is correct that this obligation is retrospectively imposed, then it is an obligation that has not been complied with. Nevertheless in the circumstances there might be much to be said for further application of clause 62 in the circumstances. The search materials available to me do not disclose the affect of the covenant binding Certificate of Title volume 7792 folio 192. The covenant affecting Certificate of Title volume 8398 folio 591 is number 292241 is "that no brick making, quarrying or noxious trade of any description may be carried upon the land." That is the covenant does not appear to be relevant to the proposed development. As to the other covenant it would be necessary to consider whether there was any additional obligation to give notice under section 52 of the Planning and Environment Act 1987. I heard no submissions on this point and so I say nothing more as to it.

67. The other matter which was raised in the course of the hearing was that according to sworn evidence from Mr Saliba he was approached by a Council officer, Mr Baker, over the weekend prior to the preliminary hearing. Mr Saliba had recently complained about some extensive street works carried out by the Council in Bent Street outside his premises, providing for revised parking arrangements. He complained that the work carried out by contractors was defective in a number of respects. In particular the parking restrictions' signs had not been, according to him, properly concreted in and were standing at odd angles. He said that Mr Baker promised to have these matters rectified so long as he withdrew his objection to the present proposal. He was contacted on a second occasion over the weekend by Mr Baker. Mr Baker was present and instructing Mr Scally. He was not called as a witness nor did Mr Scally put it to Mr Saliba that the account that he and Mr Saliba had given of the conversations with Mr Baker was untrue. In the circumstances therefore I should find that these events occurred. These matters are disturbing. However, since they were not the subject of the specific submission and were not amongst the matters referred to me for preliminary hearing, it would be wrong for me to give them any further consideration.

68. The events surrounding this development proposal might be regarded as an interesting contribution to the debate which has raged in recent years as to the Tribunal's jurisdiction and powers in planning matters. Various municipal councils and municipal associations have contended that councils should have the final say in planning determinations and should be subject to a review only on the bases of error of law. That is there should be no merits review. A further contention is that if merit review is to take place, the Tribunal should not be at liberty to consider plans other than those of which were considered by councils as responsible authorities of the initial application. In the present case I note that Council will at the final hearing and determination of this matter be seeking to rely upon revised plans materially different, in particular with respect to the "beach pavilion", from those which were the subject of the original notice of decision to grant.

69. I will adjourn this matter for further hearing. In the meantime in accord with the procedure frequently adopted in the Supreme Court of New South Wales direct that minutes of Order be filed for consideration with a view to giving affect to these reasons. Normally both parties would be directed to bring in short minutes. Given that the objectors are not legally represented I will restrict the Order to the City of Hobsons Bay. The objectors will of course have the opportunity to make submissions as to the form of the Order proposed by the Council.