Any requirement in this scheme relating to the use of land, other than a requirement in the Public Conservation and Resource Zone, does not apply to:

• ...
• The use of land for a minor utility installation.
• ...

62.02 Building and works not requiring a permit

Any requirement in this scheme relating to the construction of a building or the construction or carrying out of works, other than a requirement in the Public Conservation and Resource Zone, does not apply to:

• ...
• Buildings and works associated with a minor utility installation.

1. Clause 73.03 of the scheme defines 'minor utility installation' as:

1. Notably, land used for sewerage or water mains comprises use of land for a 'minor utility installation'.
2. I concur with the findings of the Tribunal in P139/2024 that given the proposal will serve more than one property and having regard to its length, the water pipe is a water main and is thus, a minor utility installation (relying on the decision in Central Highlands Water v Ballarat City Council[4] (Central Highlands)). Accordingly, no planning permit is required under the FZ for the use or development of the applicant's land for the 'minor utility installation'.
3. On that basis, the only permissions required on the applicant's land are under ESO1, ESO2, VPO2 and cl 52.17 of the scheme for the removal of vegetation.
4. I now set out the relevant parts of the scheme under which a permit is required.

1. Schedule 1 of the ESO relates to Waterway Protection. The statement of environmental significance and objectives to be achieved provide:

1. Clause 5 of the ESO1 sets out the following decision guidelines:

1. The quality and quantity of water and land adjacent to Greater Bendigo's waterways are relevant considerations under ESO1.

1. Schedule 2 to the ESO relates to Groundwater Recharge Protection Areas. The statement of environmental significance and objectives to be achieved provide:

1. Clause 5 of ESO2 sets out the following decision guidelines:

1. It is clear that matters relating to impacts on groundwater are relevant considerations.

1. Schedule 2 to the VPO relates to significant vegetation that is to be protected. The vegetation protection objectives to be achieved are:

1. The decision guidelines at clause 5 of VPO2 state:

1. The central focus of VPO2 is about vegetation retention but includes consideration of impacts on water management.

1. I concur with the reasoning of the Tribunal in Proceeding P139/2024 that matters relating to water management and groundwater are relevant matters. I note that the responsible authority also concedes that water quality may be relevant as it applies to vegetation removal. The fact an additional trigger exists under ESO1 which also relates to water quality and quantity, supports this conclusion.
2. As was the case in Proceeding P139/2024, it is appropriate to amend the ground 3 relied upon by the applicant with respect to water quality by deleting reference to sediment runoff from trench sites because impacts on water quality must relate to the permit triggers arising from the proposed vegetation removal.
3. Thus, the applicant's revised ground 3 will now read as follows:

Ground 3

The water quality in our dams will be negatively affected by the proposed vegetation removal.

1. Ground 4 as set out in the application for review is quite different from the matters set out in the applicant's submissions. For clarity ground 4 states:

1. The applicant did not clarify this ground 4 in his submissions at the practice day hearing.
2. I agree with the other parties that ground 4 as set out in the application for review does not relate to the matters set out in either VPO2, ESO1 or ESO2 for consideration. On that basis, ground 4 is struck out.
3. Based on ground 3 as amended, the applicant has standing to bring the application for review.

SHOULD I EXTEND TIME TO COMMENCE THE PROCEEDING?

1. The power to consider an extension of time to commence a proceeding arises from section 126 of the VCAT Act.

Section 126 of the VCAT Act provides:

Extension or abridgment of time and waiver of compliance

(1) The Tribunal, on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.

(2) If the rules permit, the Tribunal, on application by a party or on its own initiative, may -

(a) extend or abridge any time limit fixed by or under this Act, the regulations, the rules or a relevant enactment for the doing of any act in a proceeding; or

(b) waive compliance with any procedural requirement, other than a time limit that the Tribunal does not have power to extend or abridge.

(3) The Tribunal may extend time or waive compliance under this section even if the time or period for compliance had expired before an application for extension or waiver was made.

(4) The Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.

(5) In this section -

relevant enactment means an enactment specified in the rules to be a relevant enactment for the purposes of this section.

1. When considering an application under section 126 of the VCAT Act regard is normally given to the factors identified in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment.[5]
2. These factors are:
   • Whether the applicant can show an acceptable explanation for the delay.
   • Whether it is fair and equitable in the circumstances to extend time.
   • Whether the applicant's actions continued to make the decision maker aware that he or she contests the finality of the decision as distinct from allowing the decision maker to believe that the matter was finally concluded.
   • Whether the respondent has been prejudiced by the delay.
   • Whether the delay may result in the unsettling of other people or of established practices.
   • The merits of the substantial application.
   • Consideration of fairness as between the applicant and other persons otherwise in a like position.
3. Having regard to these factors, I find as follows on the relevant factors.

1. Whilst the applicant has explained why he lodged his application for review late, he has not provided a reasonable explanation for delay other than that he was absent from home for an extended period, working shift work and did not check his emails.
2. This weighs against the exercise of my discretion to extend time because the applicant should have been expecting a decision for the permit application from the responsible authority and that the NOD or refusal would be sent by email.

1. I do not consider there to be any real detriment to the responsible authority or Coliban by the granting of an extension of time to commence the proceeding.
2. The Proceeding in P139/2024 is a live application before the Tribunal and it relates to the same NOD which is under review by the Tribunal. A planning permit cannot issue pending the outcome of P139/2024.
3. A practice day hearing can be scheduled promptly to consider whether the proceeding in P139/2024 and this proceeding can remain separate proceedings but be heard and determined together.

Responsible authority aware of applicant's position

1. Whilst the applicant did not explicitly state to the responsible authority that he would lodge an application with the Tribunal on the facts before me, it is clear that the applicant opposed the permit application and that he could pursue his statutory rights and lodge an application for review against a NOD. Further, there is no evidence before me to suggest the applicant would not exercise his statutory rights if a NOD was issued.

Unsettling of other people or established practices

1. Having regard to the specific facts of this application, I do not consider there to be any unsettling of an established practice that would arise from the extension of time to commence the proceeding.

1. I disagree with Coliban's submission that the application for review ought to be dismissed because it lacks merit.
2. As explained above, there is a real issue about potential impacts to water quality on dams on the applicant's land being detrimentally impacted by vegetation removal. This is a valid ground to contest the NOD. It is also the same ground that was upheld in Proceeding P139/2024 (where the ESO1 does not apply). Therefore, I consider there is merit in the application for review.

1. Whilst the purpose of time limits is to provide certainty for all, this is not a case where there has been a blatant disregard of such time limits. What occurred here is that the applicant did not check his emails when he should have because he was working nightshift on a 'drive in / drive out' roster of three weeks on and one week off in Mildura (which is a four hour drive away). Whilst this of itself is not a reason to justify granting the extension of time, it is nevertheless an explanation why the applicant did not lodge an application for review within time.
2. I also hasten to add that weighs in the applicant's favour that the proceeding P139/2024 remains on foot because the planning permit cannot be granted pending the outcome of that proceeding.
3. However, it would be a different situation if this was the only application for review lodged pursuant to section 82(1) of the PE Act with respect to the permit applicant and it was lodged out of time. The competing interest would then be whether it would be fair to grant an extension of time when the statutory time period has passed and the permit could be issued.

1. On balance, I consider that I should exercise my discretion under section 126 of the VCAT Act to extend time within which to commence this proceeding. In doing so, I have given appropriate weight to the fact I have found the applicant has standing to bring the application for review and that proceeding P139/2024 is a live application before the Tribunal. Thus, there is no material prejudice to Coliban or the responsible authority in the sense that 'but for' this proceeding, the permit could issue.

1. Given my findings above, the request for the summary dismissal or strike out of the application for review is refused. The proceeding will be listed for a practice day hearing to determine the appropriate dates for a compulsory conference and hearing, and whether the matter should be heard and determined with the proceeding in P139/2024.

1. The description of the subject land in this proceeding was amended at the practice day hearing on 19 April 2024 to refer to the description in the NOD as follows:

Easement running from Aspinall Street, Golden Square to Calder Highway, Maiden Gully.

1. I made a footnote in my order dated 19 April 2024 making reference to the applicant's specific interest in the land affected by the proposal at 10 Rocky Rises Road Maiden Gully Vic 3551.
2. To be consistent with the amended description of the subject land in proceeding P139/2024 (as referenced in Tribunal Order dated 31 May 2024), I will further amend the description of the subject land in this proceeding to accord with how the land is described in the council officer's delegate report.
3. The delegates' report refers to the site address as:

1. I have made an order reflecting this amendment to the application for review.

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[1] The application for review was previously amended pursuant to Tribunal Order dated 19 April 2024.

[2] Refer to Tribunal Orders 1 and 2 dated 19 April 2024. However, refer also to my comments with respect to Proceeding P139/2024. I have made an order aligning the description of the subject land in this proceeding accordingly.

[3] Refer to Hoxta v Cardina Shire Council [2016] VCAT 2179. Applied in Halliday v Manningham CC [2018] VCAT 1780, [18] - 19].

[5] [1984] 3 FCR 344.