This case is adjourned to administrative mention on 6 September 2010. The parties are not required to appear on that date but are required to advise the registrar of the tribunal in writing by that date as to the then situation in relation to this case stating, in particular, whether the hearing fixed to commence at 10.00 am on 7 February 2011 is to be cancelled.

Ms Louise Hicks, solicitor of the firm DLA Phillips Fox, appeared for the responsible authority. She presented written and oral submissions.

Mr Andrew Walker, barrister, appeared on the instructions of Tait Leishman Taylor solicitors for the respondent Stephen Cumming. He presented oral submissions and two documents containing written submissions and called his client to give oral evidence.

Mr Warwick Nelson, solicitor of Harwood Andrews solicitors, appeared for Glenample Air Pty Ltd. He presented written and oral submissions.

Various plans, photographs and other documents were tendered. The evidence and submissions in documentary form have been retained on the file of the tribunal.

Application under s 149A of the Planning and Environment Act 1987 for declarations.

1. The Permit does not allow the land, subject of the Permit, to be used as a 'heliport' for helicopter flights.
2. There are no existing use rights relevant to the conduct of a heliport on the land.
3. Any works contemplated by the land owner of the land require a further planning permit.

Rural Conservation Zone, Schedule 1, and subject to a Significant Landscape Overlay, Schedule 3, under the Corangamite Planning Scheme.

Crown Allotment 100 Parish of Narrawatuck being part of the land in Certificate of Title Volume 9077 Folio 409

Franceschini v MMBW [1980] 1 PABR 276; (1980) LGRA 284

1. The question for determination in this case is whether the word "airstrip" can include the landing and taking off of helicopters in addition to aeroplanes, at least in the context of the use of that word in a planning permit granted in 1993.
2. There are other potential questions in the case, but the need to determine them is dependent on the outcome of that initial question.

1. The responsible authority has sought a declaration that planning permit 1194 issued by the Shire of Heytesbury on 23 September 1993 does not allow the land, the subject of the permit, to be used as a "heliport" for helicopter flights.

1. The words of permission in the permit appear in the following terms:

Construction of aircraft hanger and use of airport for commercial purposes.

1. I note the use of the word "airport". Its use in this context amounts, in my opinion, to an accidental slip or error which probably should have been corrected pursuant to s 71 of the Planning and Environment Act 1987 (PE Act). I say this because there was no valid authorisation for the inclusion of that word in the permit document. The word should have been "airstrip".
2. In relation to the creation of a planning permit there are two distinct steps. The first is the decision to grant the permit. That is a deliberative step to be undertaken by the responsible authority, either directly by, for example, council resolution, or through the agency of a delegate of the responsible authority pursuant to powers validly delegated to the delegate by the responsible authority. In relation to the permit in this case the decision was made by the then council of the Shire of Heytesbury.
3. A municipal council makes a determination and expresses itself by passing a resolution. If it passes a resolution to grant a planning permit it is that resolution that in fact exercises the power and grants the planning permission concerned.
4. However, there is then a further step to be taken. That further step is the administrative task of preparing a permit document in the appropriate form and executing or authenticating it in the appropriate manner. This permit document is required to reflect, without distortion, the planning permission granted by the council through its resolution. The permit document is an official document and the formal evidence of the permission having been granted. Council staff or officers responsible for the administrative step of issuing the permit have no right or legal power to alter the planning permission granted by the council as expressed in its resolution. Such staff or officer cannot add new conditions or subtract conditions provided for in the resolution, and cannot alter those conditions as they appear in the resolution. Furthermore, there cannot be alterations to the words whereby the planning permission itself is granted. It is beside the point that the staff or officer might consider such changes to be improvements. He, she or they are not vested by the legislation with the authority to grant or alter planning permission or terms upon which it is granted.
5. A similar situation applies where there is an application to this tribunal for review of a decision (or failure to decide) by a responsible authority in relation to an application for a planning permit. If the tribunal determines to grant planning permission it makes an order to that effect stating what permission is being granted and the terms of any conditions pursuant to which it is granted. The decision is made by the tribunal and the order of the tribunal is equivalent to the resolution of a council. If the determination of the tribunal is that such a permit is granted it then directs that the administrative step of the issue of the permit is to be carried out by the responsible authority. In those circumstances neither the council nor its staff or officers have authority to change the permission being given or the conditions prescribed by the tribunal in its order.
6. Any attempt to alter the permission or conditions at the administrative issuing stage that does not reflect the order of the tribunal is beyond power and invalid, at least to that extent.
7. In this case the resolution of the Heytesbury Council accords with the words of permission in the permit except that the word "airport" does not appear in its resolution. The word "airstrip" appears in that place.
8. I think that is really the end of the matter although it is also true that the word "airstrip" appears in the permit application form. To take an extreme example, if somebody applies for a permit for a shop and the responsible authority resolves to grant a permit for a shop a permit document that refers to an abattoir instead of a shop does not convey planning permission to use the land as an abattoir, it is a permit document that contains an error in relation to a planning permission which was for a shop. For completeness I note that the recommendation in the officer's report was to the council recommending that it grant a permit for "the airstrip" although in the particulars at the commencement of the report it misreported the proposal as being for use of "airport" for commercial purposes.
9. As a matter of fact the administrative work at Heytesbury at that stage appears to have been quite sloppy. The application form specified the proposal as:

CONSTRUCTION OF AIRCRAFT HANGER AND USE OF AIRSTRIP FOR COMMERCIAL PURPOSES

with an added notation in different handwriting reading:

In the recommendation and resolution passed by the council this became:

That Permit No. 1194 be approved for the construction of an airport hanger anduse (sic)[1] of the airstrip for commercial flights subject to the following conditions:

I note the reference to "airport" hanger. The planning officer seems to have used airport and airstrip as if interchangeable. That is not necessarily correct, or at any rate, not necessarily correct in all contexts.

1. All this represents quite a muddle, but I think that it is correct to regard the permission granted by the resolution as containing the word "airstrip" and that the word "airport" appearing in the permit document is an error.

1. The land to which the permit applies is Crown Allotment 10 Parish of Narrawaturk on the Timboon-Peterborough Road at Peterborough. Crown Allotment 100 is part of a quite substantial farm in that locality now owned by Mr Cumming.
2. The Timboon-Peterborough Road intersects with the Great Ocean Road at Peterborough. It runs north from a "T" intersection with the Great Ocean Road. The farm is in this locality and parts of it abut the Timboon-Peterborough Road whilst other parts abut the Great Ocean Road. Crown Allotment 100 is on the northeast corner of the intersection of the Timboon-Peterborough Road with the Great Ocean Road. It is relevantly flat and is a substantial area extending to the north from the Great Ocean Road reserve which abuts its southern boundary.
3. The permit was granted in 1993. It was granted by the council of the Shire of Heytesbury as responsible authority. Subsequent municipal amalgamations have meant that the Shire of Heytesbury has been superseded by the current Shire of Corangamite.
4. At the time the permit was granted the farm, including Crown Allotment 100, was owned by the father of Mr Cumming. The father, and Mr Cumming himself, have had longstanding interest in flying. In the early 1990s there was an airstrip elsewhere on the farm.
5. The application for the permit was made by Brett Leslie Hislop. He conducted a business involving joyrides or scenic flights along the coast. He originally operated this from the other airfield on the farm. However, that airfield was located in an unfavourable part of the farm so far as that business was concerned. It was remote from the Great Ocean Road frontage. It is, perhaps, obvious that a business of this sort would benefit by exposure to passing tourist traffic on the Great Ocean Road.
6. Consequently he wanted to relocate to a place accessible to and obvious from the Great Ocean Road. With the approval of the father of Mr Cumming he constructed a runway of Crown Allotment 100. The address of this piece of land is referred to in relation to the Timboon-Peterborough Road (rather than the Great Ocean Road) because access is taken from that lesser road. The runway is still there. It commences to the east from the Timboon-Peterborough Road frontage and runs east for 600 m parallel to the Great Ocean Road. The first 100 m was paved in asphalt with the balance being a smooth grassed area. Farming, including grazing, continued on the land.
7. Subsequently Mr Hislop wanted to construct a hanger near the eastern end of the runway to accommodate aircraft and to erect some signs. This led to the application for the permit which is the subject matter of this case.
8. At that stage the parents of Mr Cumming lived on the land. Although Mr Cumming he himself did not live there, he was in contact with his parents. His father was responsible for the conduct of the farm and the arrangements with Mr Hislop.
9. The permit application was accompanied with a sketch plan showing the location of a hanger building to be located 30 m east of the Timboon-Peterborough Road and 100 m north of the Great Ocean Road. The shed is specified to be constructed of mist green colorbond to be used to store aircraft used in commercial operations along the coast. The hanger building was to be 13 m by 10 m.
10. The responsible authority required some further information. This gave rise to a further sketch plan. It showed the layout of the 600 m runway running to the east from a paved turning area and the hanger building together with some all-weather parking near the Timboon-Peterborough Road frontage. The proposed new sign is indicated to be on the southern side of the hanger building so as to face the Great Ocean Road. The sketch includes a drawing of the proposed sign to go on the hanger. The sign is to be 8 m wide by 4 m high coloured blue and white with the logo and name for "HISLOP AVIATION" with the further wording "CHARTER SCENIC FLIGHTS" above "THE AERIAL PHOTOGRAPHY".
11. The permit was issued subject to four fairly simple conditions. They did not relate to potential noise problems.
12. Subsequently the hanger was built, the sign displayed and use of the airfield continued. Although Mr Hislop has ceased using these facilities a similar scenic flights business is still carried on upon Crown Allotment 100. There is an aircraft maintenance building carried on by another entity based on neighbouring land. It is this neighbour that now carries on the scenic flights activities. Like Mr Hislop this is done with aeroplanes.
13. In the meantime the parents of Mr Cumming have died and he has moved back onto the property taking over conduct of it. He gets on well with his neighbour and is happy for that business to continue on the land. However, since November 2009 he has been conducting a similar scenic flights service from the land but using helicopters rather than winged aeroplanes. He claims that the two activities get along well together, helping each other and accepting bookings etc. on behalf of each other. It is accepted that helicopter flights in and out of the facilities on Crown Allotment 100 have gone on intermittently over the years since the grant of the permit. Indeed, it is claimed that the first landing of a helicopter connected with a media organisation occurred at the time of the collapse of the "London Bridge" block formation along the coast and that this was prior to the first grant of the permit. However, the practice of having helicopters "garaged" there, and operating from Crown Allotment 100 as their base, dates only from November 2009.

The responsible authority considers the helicopter use to be illegal

1. Crown Allotment 100 is now within a Rural Conservation Zone under the Corangamite Planning Scheme. The Corangamite Planning Scheme is based on the Victoria Planning Provisions (VPPs). Many of its provisions are the same as those for other planning schemes in Victoria.
2. The provisions in relation to the Rural Conservation Zone are found in cl 35.06 of the planning scheme. That is probably the most restrictive of the rural zones provided for in the VPPs. Clause 35.06-1 contains the Table of Uses for the Rural Conservation Zone. It has three sections. Land uses listed in section 3 prohibited. No land use appearing in section 3 can now be commenced, and no planning permit for commencement of such a land use can now be granted. In section 3 there is a list of such prohibited land uses, but the last item in that list reads:

Any other use not in Section 1 or 2

1. Clause 74 of the planning scheme refers to quite a number of land uses relevant to VPP planning schemes and the Tables of Uses therein, and it contains definitions of a number of them.
2. One of the defined land use terms is "Transport terminal". It is defined as follows:

Transport terminal Land used to assemble and distribute goods or passengers. It includes facilities to park and manoeuvre vehicles. It does not include a Tramway.

1. Some definitions are broad ones that contain other land uses within them. Transport terminal is an example. There are several subcategories of Transport terminal referred to in cl 74 of the planning scheme. They include "Airport" and "Heliport". There are several others.
2. Although airport and heliport are specifically referred to and are clearly subcategories of Transport terminal, neither of those land use terms are defined.
3. Clause 71 of the planning scheme deals with the meaning of words. It provides:

A term used in this planning scheme has its ordinary meaning unless that term is defined:

• In this planning scheme.
• In the Planning and Environment Act 1987 or the Interpretation of Legislation Act 1984, in which case the term has the meaning given to it in those Acts unless it is defined differently in this scheme.

1. Having checked I believe I am correct saying that neither expression is defined in either of those Acts. It follows that each term receives its "ordinary meaning". That means its ordinary English language meaning in its context. I take the context to include what might be called its literary and its locational context. By literary context I mean the document in which it appears and, if it is necessary to define the locational context, then it is Australian, or indeed Victorian usage of the English language that is relevant. Each of these expressions is used in a Victorian planning scheme. I will discuss the meanings of these expressions further on in these reasons. For the moment I will observe that a heliport envisages the landing and taking off of helicopters whereas an airport probably means, or at least involves, the taking off and landing of aircraft. I take the word "aircraft" to include aeroplanes and helicopters. I take aeroplane to mean a vehicle capable of flying that has fixed wings (even if parts thereof are so-called "swing wings" as in the F-111 fighter-bomber). I assume that the expression "plane" in the word aeroplane refers to the wings. A helicopter is not an aeroplane even though both are aircraft. I note in passing other forms of aircraft such as hot air balloons, air ships, gliders, hang-gliders etc.
2. If an airport accommodates the taking off and landing of aircraft they might be aeroplanes or they might be aeroplanes and helicopters. However, although a heliport can accommodate helicopters, it is distinct from an airport by not accommodating aeroplanes.
3. So much for those two varieties of Transport terminal. Both are prohibited in the Rural Conservation Zone. Transport terminal does not appear explicitly in any of the sections of the Table of Uses for the Rural Conservation Zone. Accordingly, it comes within the "catchall" provision at the end of section 3. It is a land use, recognised in the planning scheme. It is not referred to in section 1 or section 2 of this Table of Uses. Accordingly, it is within section 3 and is prohibited. So are the two relevant subcategories of Transport terminal namely airport and heliport. Neither of those land uses can be lawfully commenced at this stage.
4. This has raised the question of whether the permit allows Mr Cumming's helicopters. The responsible authority contends that the permit does not permit use as a heliport although it argues that it does cover airport. This is on the basis that, according to the responsible authority, the permit allows aeroplanes in relation to the airstrip or airport or whatever it is, but that the permit does not include the use of helicopters. There is scope for an argument as to whether the permit survives as an active planning permission after the use (whether airport or heliport) becomes prohibited, or whether the rights originally granted by the permit survive now pursuant to the existing use rights provisions in cl 63 of the planning scheme. I do not need to go into that question for the purposes of this case. The question raised here is whether the permit allows or allowed the heliport or helicopters.
5. Prior to commencing the conduct of his helicopter business based on Crown Allotment 100 Mr Cumming decided that he wished to carry on such a business. He looked at the existing permit and concluded that it authorised his helicopter business as well as the aeroplane scenic ride business.

Does the permit allow use of the land as a heliport or for the taking off of helicopters?

1. To determine the scope covered by the words of permission in the permit it is, I think, necessary to consider the meaning, in this context, of several English words and expressions. The meaning of an ordinary English word or expression has been held to be a question of fact see Franceschini v MMBW[2].
2. It is not always easy to work out the meaning of an English word or expression because many, if not most of them, have more than one meaning. Most English words have several if not many definitions and it is necessary to work out what an ordinary English word means in the context in which it is used and which definition or meaning is applicable. Reference to a medium sized English dictionary such as the Concise Oxford Dictionary or the Shorter Oxford Dictionary or The Macquarie Dictionary frequently discovers a number of definitions. Of course the multi-volume large Oxford dictionary may frequently have more than can be found in other Oxford dictionaries like the Shorter Oxford Dictionary or the Concise Oxford Dictionary.
3. Not only that, a dictionary cannot be taken to be necessarily exhaustive of all the meanings in English of a word or expression. The lexicographers responsible for the compiling of a dictionary, even a large one, may have difficulty in conceiving of all the potential contexts in which a word is used and all the meanings attributed to it in ordinary English usage. It is probably not possible to conceive, in advance, of every possible usage. Furthermore, the English language evolves. Words lose currency, others gain it, and words evolve and change meaning. Some lose some of their meanings and gain other meanings. Some meanings are obscure. Some have currency but become archaic or fall out of use altogether. Words such as "gay" and "intercourse" have principal meanings now that are quite different from their usage 50 or 100 years ago. Many other examples can be found.
4. Although dictionaries can be very useful, they must nevertheless be used with some caution and their limitations must be borne in mind. They cannot be regarded as infallible or exhaustive and questions of intention and context have always to be borne in mind. This is true of words used in legislation (unless defined therein) as well as in relation to other English words. Some submissions were made to me in the course of argument in this case which seem to imply that I am necessarily limited to what one or other medium-sized dictionary might have to say. I declined to be bound in that way.
5. Furthermore, in the course of argument, I was referred to a number of authorities in relation to when it is open to consider extraneous documents in discerning the meaning of written expressions, and in particular, expressions contained in planning permits. The general burden of these authorities is well known in planning law and I have no quarrel with them. I do not think it is necessary or desirable to discuss those authorities here at any length. I do make the point that reference to meanings contained, explicitly or implicitly, in other legislation must be treated with caution. For example, I have considered all that has been put to me in this case in terms of legislation relating to civil aviation and other writings relevant to that topic. However, when all has been said, argued, referred to and considered; I am left with the task of saying what certain words and expressions mean, how they are to be distinguished from others where (when relevant) they have more than one meaning, and how they impinge on the meaning of the words in permission in this permit.
6. In this connection I was referred to two other planning permits granted by the then council of the Shire of Heytesbury as responsible authority under the then applicable Heytesbury Planning Scheme in relation to heliports or helicopter bases along the Great Ocean Road. Of course at the time those permits (and the one relevant in this case) were granted, the current planning scheme did not exist. The applicable planning scheme was the Heytesbury Planning Scheme which was not based on the VPPs. I was not taken to definitions of airport or heliport or the like in that planning scheme. I have accordingly assumed that such expressions as heliport or helipad do not appear and are not defined in that planning scheme as it stood at the time of the issue of these permits.
7. These two later permits concerning helicopters contain more conditions than appear in the planning permit in this case, including some in relation to the question of noise. I am not impressed with the drafting of these two further permits or their noise conditions, but I need not go into that. However they are different proposals and different permits for different circumstances, even if there are some aspects in common. I am also cautious about the sort of inferences that I was invited to draw from the differences between those two later permits and the one that I need to consider in this case.

1. I note that the expressions airport and heliport embody the word "port". That word is most commonly employed in relation to seaports and river ports used by water vessels. I think that to be a port, a facility provides safe anchorage and/or wharf facilities where passengers and/or cargo can be set down and taken up, usually providing temporary storage and an opportunity to transition from water transport to land transport. I think that, in relation to airport and heliport the same applies save that air and air vehicles take the place of water and water vehicles. A port, be it airport, heliport, seaport, river port or whatever, may be large or small and may provide all or only some of the facilities that are customary to them provided they have the essential ones.
2. There is a distinction between a heliport and a helipad although sometimes these words may be used interchangeably. A helipad need be no more than a helicopter landing place whereas I consider a heliport that requires something more than that.
3. An airport includes a runway to provide for the take off and landing of aeroplanes, but not to the exclusion of other aircraft including helicopters. My initial reaction was to think that the word "airstrip" meant no more than runway. I am satisfied that it can mean runway but I think that, like many other words, it has other meanings in ordinary English usage. It can include other features common to an aerodrome, an airfield or an airport. These are further terms sometimes used interchangeably although, in some contexts, can be seen to have subtle differences. An aerodrome has a runway or more than one runway for the landing of aeroplanes. It is likely to have other facilities including at least aviation aids like markers and windsocks and the like. Although use of the word is probably less common now than in the past it is sometimes used interchangeably with airport. An airfield originally, I believe, meant a large field rather than a long thin facility to accommodate a runway. In the very early days of aviation aeroplanes did not have the instruments and devices common today so as to enable take off and landing in relation to winds that are not directly headwinds. If an actual direct headwind was required for take off and landing, as originally was the case, then a one directional runway or one runway with a cross runway, did not meet the need. The field had to be large enough so that a plane could take off or land directly into the wind no matter what direction the wind blew from. That understanding is now obsolete but the word still has currency. It may now be synonymous with aerodrome.
4. What then of airstrip? As previously stated I think it can mean no more than runway, but I think it can also be seen to be synonymous with airfield, aerodrome and even airport. However, its meaning in a particular context depends on that context.
5. What does it mean in the context of this permit? I think that, in ordinary usage, airstrip is to be taken to include use by helicopters as well as aeroplanes. The permit allowed use of the airstrip for commercial flights. Commercial flight implies paying passengers or charterers but can include scenic flights, joy rides and aerial photographic expeditions as well as transporting people from one destination to another. If there be doubt as to this it is obvious from the application, including its plans and further information, that scenic flights were always contemplated at least for aeroplanes. I have interpreted "airstrip" in this context to include aeroplanes and helicopters. Those "commercial flights" in the council resolution, this transcribed as "commercial purposes" in the permit document, applies to such flights in Mr Cumming's helicopters as well as to the aeroplanes of his neighbour.
6. I think this would also be true, and more clearly the case, if the council resolution had said "airport" as set out in the permit document, I have ultimately come to the conclusion that the same is true on the basis of the use of the word "airstrip" (appearing in the resolution) and "airport" (appearing in the permit document).

1. On this basis I am not prepared to make the first declaration sought by the current responsible authority namely the Corangamite Shire Council. I consider that the permit, and its words granting permission, are in terms that allow the take off and landing of helicopters for commercial purposes and that this would cover the take off and landing of aeroplanes and/or helicopters for the purposes of scenic flights or joy rides.
2. The current responsible authority has sought three declarations. So far I have been considering the first of them. The time available for the hearing was insufficient to deal with further evidence and submissions required in relation to the second and third declarations. A further hearing of two days to commence at 10.00 am on 7 February 2011 was secured in case such a further hearing proves to be necessary. However, I understood it to be the consensus between the parties that, in the event of my deciding as I have decided in relation to the first declaration the parties would not wish to proceed in relation to the second and third declarations and, in those circumstances, the further hearing to commence on 7 February 2011 could be dispensed with.
3. I proposed to adjourn this case to an administrative mention on 6 September 2010. This is to give the parties an opportunity to consider what I have said to date. The parties are not required to appear at the administrative mention but are required to advise the tribunal in writing as to the then situation in relation to this case stating, in particular, whether the further hearing fixed to commence on 7 February 2011 is to be cancelled. Such communication should contain a note indicating that it is to be drawn to my attention.

[2] [1980] 1 PABR 276; (1980) 57 LGRA 284.