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

1. I conducted a hearing of relation in this case on 26th and 27th July 2010. It is an application by the Corangamite Shire Council as responsible authority for three declarations. The terms of the declaration sought are set out above under the heading INFORMATION.
2. At the beginning of the hearing it was decided that the hearing should be devoted to consideration of the first of the declarations being sought. That declaration would be to the affect that a specified planning permit granted many years previously did not allow the land to be used as a heliport for helicopter flights. The permit was granted before municipal amalgamations in the 1990s while the council of the Shire Heytesbury which was previously the municipality and responsible authority before the current Shire of Corangamite and its council assumed those roles. It was anticipated that a decision on that point might obviate the need to consider the application in relation to the second and third declarations.
3. My interim determination of 18th August 2010 set out my views on the first question together with my reasons. That the conclusion of the hearing and at the conclusion of those reasons it was contemplated that the responsible authority may well not wish to proceed further, but the case was adjourned to the administrative mention on the 6th of December 2010 to create an opportunity for consideration of the situation. The parties were not required to appear on that date but were called upon to provide written advice to the Tribunal as to whether a possible further hearing would be required. Tentative arrangements were made for such a hearing to commence on 7th February 2011 when two days were set aside. Parties were particularly asked to advise whether the February hearing could be dispensed with.
4. In the event the representatives of the parties notified the Tribunal that the idea of a possible future hearing in February should be abandoned. In those circumstances a final order could be made finalising these proceedings. In fact the responsible authority, which is the applicant for declarations, has sought to withdraw its application.
5. The second respondent is Glenample Air Pty Ltd. It appears that this company is a commercial competitor in relation to the provision of helicopters sight seeing flights along in the coast in this general locality. I note that this company was joined as a respondent at a Friday practice day hearing on 5th March 2010 conducted by the deputy president in charge of the Planning and Environment List. It was not an original respondent, although the responsible authority, in its application for declarations, did mention an individual apparently connected with Glenample Air Pty Ltd as a person who may have an interest in the proceedings. Since indicating its consent to plea determination of these proceedings Glenample has consulted different solicitors to the firm and the representative who appeared for it at the hearing.
6. The new solicitors have written a tribunal seeking to withdraw from the position adopted by its client through the agency of the previous solicitors. The new solicitors say that they are instructed that their client wishes to pursue a declaration that there are no existing use rights in relation to the conduct of a heliport on the land. They ask for conformation that the matter will proceed on 7th February 2011.
7. To accede to this suggestion would be to create an unusual situation, and in my opinion, an inconvenience is an inappropriate one. The responsible authority is the applicant in this current proceeding. Its purposes, so far as the proceeding in concerned, have been achieved, and it does not wish to proceed further with the matter. Indeed, it wishes to withdraw. Perhaps it takes the view that if the activities of Mr Cumming are covered by the existing permit, the question of existing rights does not arise. The tribunal would be unlikely to entertain an application for a discretionary remedy like a declaration where it is not necessary or where it would be in relation to a merely academic or hypothetical situation. The applicant has carriage and conduct of the proceeding, subject to the supervision of the tribunal. I am highly disinclined to attempt to compel the applicant to proceed with its application against its will and in circumstances where it has decided that such a course would not be necessary or desirable.
8. The responsible authority needs leave to withdraw but I do not think that there is any reason in present circumstances, why that leave should be denied. If Glenample Air Pty Ltd considers that it has a good and viable case for a declaration in present circumstances and thinks that it wants a declaration, it should make a fresh application of it own. It would then have conduct of its own proceeding, and not be dependant on a reluctant applicant with no interest in pursuing the matter. It would also have responsibility for establishing its case in relation to any necessary facts, law or relevant discretionary considerations. It may or may not decide to pursue such a course, but I consider that it would be much less confusing, as well as the appropriate cause procedurally, for it to proceed in that manner. In that event the parties may wish to draw the attention of the Tribunal to the circumstance that I have heard and determined in this current proceeding.
9. I propose to make orders dismissing the application of the responsible authority for the first declaration it has sought and granting it leave to otherwise withdraw this proceeding with no orders as to costs.