Victorian Civil and Administrative Tribunal|2009-02-12

Deakin University v Whitehorse CC (includes Summary) (Red Dot) [2009] VCAT 134 (12 February 2009)

The practice of VCAT is to designate cases of interest as 'Red Dot Decisions'. A summary is published and the reasons why the decision is of interest or significance are identified. The full text of the decision follows. This Red Dot Summary does not form part of the decision or reasons for decision.

Right to review refusal or failure by a public land manager to give consent to a non-public land manager to make a planning permit application under clause 36.02-3 (Public Park and Recreation Zone)

REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

LEGISLATION - interpretation or application of statutory provision

Section 148 Planning and Environment Act 1987 - meaning of specified person and specified body.

Section 149 Planning and Environment Act 1987 - ambit of right of review

PLANNING SCHEME - interpretation or consideration of VPP provision

Clause 36.02-3 - the written consent required under the Public Park and Recreation Zone in clause 36.02-3 is a kind of consent which may be the subject matter of a review under section 149 Planning and Environment Act 1987

The central issue in this case is whether a committee of management has a power of veto as a public land manager over any permit application being made by a non public land manager regarding public land. Whitehorse City Council is the committee of management of crown land and hence a public land manager under the planning scheme. It has refused to give its consent to Deakin University under clause 36.02-3 to make a planning permit application for use and development of a pedestrian bridge over the land.

In terms of whether Whitehorse City Council was a specified body when acting as a public land manager, I found that the ambit of the definition of specified body in section 148 is extremely wide. A specified body means a municipal council in whatever capacity the municipal council may be acting. As Whitehorse City Council is a municipal council, it is a specified body pursuant to section 148 in the context of this proceeding.

Whilst section 149 is a very wide provision, it does not authorise a review of decisions made by a specified body under the Act but is confined by its terms to the review of decisions under a planning scheme, a permit condition, a section 173 agreement or an enforcement order. The consent required to be given by the public land manager (specified body) under clause 32.02-3 to a planning permit application being made by a non-public land manager is a consent required under the planning scheme. It must be differentiated from the consent that the public land manager will be required to give under the Crown Land (Reserves) Act 1978.

There is no warrant to construe section 149(1) of the Planning and Environment Act 1987 as applying more narrowly to the consent required under clause 36.02-3 than to any other provision of the planning scheme where a consent is required. I therefore found that this consent falls squarely within the ambit of section 149(1) and that an effective veto would need to be included in the Act to avoid the ambit of review provided by section 149.

Section 149(1) Planning and Environment Act 1987 - Public Park and Recreation Zone - consent of public land manager to permit application under clause 36.02-3 - municipal council as committee of management - specified person - specified body

Deakin University v Whitehorse CC (includes Summary) (Red Dot) [2009] VCAT 134

The following are my responses to the questions of law I have been asked to determine.
1. Is the written consent required by the Public Park and Recreation Zone (in clause 36.02-3) a kind of consent which may be the subject matter of a review under section 149 of the Planning and Environment Act 1987?

Is the Council a 'specified body' for the purposes of section 149 of the Act?

Is the applicant for review in this case a 'specified person' for the purposes of section 149 of the Act?

The hearing of this proceeding with respect to the substantive merits of the council's failure to make a decision whether to consent to a permit application being made under clause 36.02 is listed for hearing on 8 April 2009.

Mr Adrian Finanzio of counsel, instructed by Planning and Property Partners Pty Ltd

An accompanied inspection of the Deakin University Burwood Campus and Gardiners Creek was undertaken on 1 December 2008

This proceeding is an application by Deakin University under section 149(1) of the Planning and Environment Act 1987 against the refusal or failure of the council to give its consent as public land manager to Deakin University to make an application for permit for a pedestrian footbridge across Gardiner's Creek to link the two parts of its Burwood Campus.
The central issue in this case is whether a committee of management has a power of veto as a public land manager over any permit application being made by a non public land manager regarding public land.
The purpose of this hearing is to consider the following questions of law, which the parties have identified:
1. Is the written consent required by the Public Park and Recreation Zone (in clause 36.02-3) a kind of consent which may be the subject matter of a review under section 149 of the Planning and Environment Act 1987?
2. Is the Council a 'specified body' for the purposes of section 149 of the Act?
3. Is the applicant for review in this case a 'specified person' for the purposes of section 149 of the Act?

The Burwood Campus of Deakin University (Deakin) is divided by Gardiners Creek. This section of the Gardiners Creek Valley is crown land and reserved under the Crown Land (Reserves) Act 1978 (the CLRA).[1] The committee of management for the reserve under the CLRA is Whitehorse City Council (the council). Passage between the two parts of the Burwood Campus is presently obtained by a footpath down the creek banks and a footbridge across the creek. Large numbers of students and staff use the footpath and footbridge on a daily basis. There are also linear bicycle and pedestrian paths along the creek reserve used by members of the general public.
Deakin proposes a new elevated bridge across the creek reserve, which will link the two parts of its campus. It is accepted that a planning permit will be required for this bridge. Under clause 36.02-3 of the Whitehorse Planning Scheme, a permit application must be accompanied by the consent of the public land manager. Specifically, it provides:

An application for a permit by a person other than the relevant public land manager must be accompanied by the written consent of the public land manager, indicating that the public land manager consents generally or conditionally either:

To the application for permit being made.
To the application for permit being made and to the proposed use or development.

On three occasions since 2005, Deakin has sought the consent of the council as the public land manager to make a permit application for the new bridge, most recently in February 2008.
The council as committee of management has failed to give its consent on each occasion. On 17 March 2008, the council again resolved to defer consideration of the request. Deakin has lodged this application for review under section 149(1) of the Planning and Environment Act 1987 to review the failure of the council to make a decision to consent to a permit application being made pursuant to clause 36.02-3.
Section 149(1) provides as follows:

(1) A specified person may apply to the Tribunal for the review of -

(a) a decision of a specified body in relation to a matter if a planning scheme specifies or a permit contains a condition that the matter must be done to the satisfaction, or must not be done without the consent or approval, of the specified body; or

(d) if there is no prescribed time for a decision of a kind referred to in paragraph (a), (b) or (c), a failure of a person or body to make that decision within a reasonable time after the matter is referred to it.

Due to the implications that a decision in this case may have for other public land in Victoria, the Minister for Planning (as Minister responsible for administering the Planning and Environment Act 1987) and the Minister for Environment and Climate Change (as Minister responsible for administering the Crown Land (Reserves) Act 1978) were joined as parties[2].
The Minister for Planning declined to make a submission. The Minister for Environment and Climate Change made a written submission[3], which states:

The Minister is of the view that the requirement for "written consent" can be characterised as a precondition to an application for a planning permit being made to the responsible authority. It is a decision which is a responsibility accorded to the land manager appointed under the Crown Land (Reserves) Act 1978, in this case, the Whitehorse City Council acting as the Committee of Management.

It is the view of the Minister, that the requirement for written consent of the public land manager to make an application does not represent a "decision" which is subject to "review" under section 149 of the Planning and Environment Act 1987. In addition, the Minister is not satisfied that the council, acting in the capacity of a Committee of Management, can be characterised as a "specified body" for the purposes of section 148 of the Planning and Environment Act 1987.

The council's views reflect those of the Minister for Environment and Climate Change.

In dealing with the questions of law raised by the parties, I propose to address them in reverse order and to consider first, whether Deakin is a specified person for the purpose of section 149, and second, whether the council is a specified body. Specified body and specified person are defined in section 148 of the Act as follows:

(a) the owner, user or developer of the land directly affected by the matter; or

The other relevant definition is that of public land manager. Clause 72 of the planning scheme provides as follows:

The Minister, government department, public authority or municipal council having responsibility for the care or management of public land. In relation to Crown land reserved under an Act and managed or controlled by a committee of management, other than Parks Victoria or a municipal council, it means the Minister administering that Act and does not include the committee of management.

The parties have now agreed that, for the purpose of this proceeding, Deakin is a specified person under section 148 of the Act. I agree.
I consider that Deakin meets several of the criteria for being a specified person. The "matter" that the definition of specified person refers to is the matter of a permit application for the proposed bridge over the Gardiners Creek Reserve. The land directly affected by the matter is the Gardiners Creek Reserve. Deakin is a user of this land and the developer[4]. Because the matter affects Crown land, Deakin could also be said to be an occupier of the Crown land by reason of its provision and maintenance of the existing footpath and footbridge, and the use of these by its students and staff.

Whitehorse City Council is a municipal council. Therefore, on the face of it, it would appear to fall squarely within the definition of specified person. The council is also a responsible authority, which is another category of specified person under section 148. However, it is common ground that for the purpose of this proceeding, the council is not wearing its hat as a responsible authority. Rather, it is wearing its hat as a public land manager for the purpose of giving consent to the permit application under clause 36.02-3.
The council comes within the definition of public land manager because it is "[t]he ... municipal council having responsibility for the care or management of public land." It has responsibility for the care and management of the Gardiners Creek public land because it has been appointed as a committee of management under the CLRA. The definition of public land manager includes committees of management that are Parks Victoria or municipal councils. It does not include other committees of management, which are not a municipal council or Parks Victoria. In those circumstances, public land manager means "the Minister administering [the CLRA] and does not include the committee of management." All public land managers under the planning scheme definition are therefore specified bodies as they fall either within the category of a municipal council, a public authority (in the case of Parks Victoria) or a Minister.
It was suggested by the council that it was not a municipal council for the purposes of the definition of specified body in section 148 because it was not acting in its municipal role but rather in its role as a committee of management. The difficulty with this argument is that it presupposes a council is only a municipal council when it is making local government decisions under the Local Government Act 1989 and that it is not a municipal council when it is making decisions under powers conferred by any other Acts. I do not accept this proposition.
I find that the term "municipal council" is a descriptive term that describes a council for municipal area. A municipal council is a corporate entity established under the Local Government Act 1989 [5]. The powers and functions of a municipal council may be conferred under the Local Government Act 1989 or various other Acts such as the Planning and Environment Act 1987 [6] and the CLRA.[7]
In terms of the definition of specified body in section 148, there is no specification of what capacity the municipal council must be acting in, apart from in its capacity as responsible authority because this is a separate category of specified body. The reason why responsible authority is specified in section 148 as well as municipal council is because not all responsible authorities are municipal councils (see section 13). The intent is to include as a specified body all responsible authorities (whether they are municipal councils or other bodies) and municipal councils acting in any other capacity.
Although there may be constraints on the ambit of section 149 arising from its terms, nevertheless the ambit of the definition of specified body in section 148 is extremely wide. A specified body means a municipal council in whatever capacity the municipal council may be acting. As Whitehorse City Council is a municipal council, I therefore find that for the purpose of this proceeding it is a specified body pursuant to section 148.
Of course, not all actions or decisions of specified bodies as defined in section 148 will be amenable to review under section 149. However any limitation on the type of decisions of specified bodies that may be reviewed under section 149 will depend upon the specific provisions of section 149 and interpretation of this provision, not upon any constraints in the definition of specified body in section 148.
I will now turn to consider section 149.

IS CONSENT UNDER CLAUSE 36.02-3 SUBJECT TO REVIEW UNDER SECTION 149?

The critical question of whether the written consent required by the Public Park and Recreation Zone (in clause 36.02-3) is the kind of consent which may be the subject matter of review under section 149 of the Act raises a number of issues:
- The ambit of section 149.
- What is the "matter" in issue?
- The nature of the consent required by clause 36.02-3.
- Whether clause 36.02-3 of the planning scheme specifies that the matter must not be done without the consent or approval of the specified body.

Ambit of section 149

Whilst section 149 is "a very wide provision designed to offer a general opportunity for the review of matters lying outside the opportunities for review offered by other provisions of the Planning and Environment Act 1987"[8], its application is not unlimited. In Casey City Council v Dennis Family Corporation[9] Justice Osborn made it clear that section 149 is not a general provision for review[10]. Thus it does not authorise a review of decisions made by a specified body under the Act but is confined by its terms to the review of decisions under a planning scheme, a permit condition, a section 173 agreement or an enforcement order.
The comments made about section 149 in Casey City Council v Dennis Family Corporation must be read in light of the facts and findings in that case. The specific decisions, which were the subject of review, were decisions made by the municipal council in its capacity as a collecting agency for levies[11] under Part 3B of the Act.[12] Because the decision was a decision made under the Act, the Court held there was no right of review under section 149. A decision pursuant to a power conferred by the Act can only be reviewed as provided for by the Act and, in the case of a discretion exercised by the municipal council in its capacity as a collecting agency under section 46P, the Act provided for no right of review.[13] The appeal against the Tribunal's decision made under section 149 was allowed on this basis, namely that the Tribunal lacked jurisdiction.
In the present case, the proceeding involves a decision of a specified body in relation to a matter arising under a planning scheme and hence falls within the broad ambit of section 149(1). I will now consider whether there are any other aspects of section 149 that would preclude a review of the council's decision.

I have said previously, in relation to the interpretation of specified person, that the "matter" is the application for a permit by Deakin for use and development of the proposed bridge over the Gardiners Creek Reserve. It is the application for a permit that is the subject matter of clause 36.02-3.

There are two types of consent referred to in clause 36.02-3, only one of which is amenable to review under section 149. They are:
- Consent to the application for permit being made
- Consent to the proposed use or development
Only a decision about consent to the application for planning permit being made can be reviewed under section 149. This is a consent required under the planning scheme rather than a consent under the CLRA. Because it is a consent required under the planning scheme, it comes within the ambit of section 149.
The other consent referred to, namely to the use or development itself, is a consent required under the CLRA and the Tribunal has no powers of review in respect of this consent.
It may be useful for a responsible authority to know, when it is considering whether to grant a permit under the planning scheme, whether or not the public land manager consents to the use or development either generally or conditionally. However, it is not fatal to a responsible authority's consideration of the permit if the public land manager does not support the use or development.
The responsible authority must make a decision based on planning grounds and the range of parameters set out in the planning scheme and the Planning and Environment Act 1987. A decision by a committee of management under the CLRA will need to be made in accordance with the provisions of that Act and based on reasons relevant to the provisions of that Act.
So far as the permission by the committee of management under the CLRA is concerned, it is likely to be informed by and benefit from the consideration of a planning permit and the public participation process this entails.
I disagree with the council's contention that opening the decision of a public land manager to review about whether it will consent to an application for a permit being made is tantamount to investing the Tribunal with a power to extinguish a person's right to decide what does or does not happen on that person's land.
Simply applying for a permit, and even being granted a permit, will not guarantee that a use or development may proceed. Consent under a planning scheme may be merely one of many consents required before a use or development may proceed.
It is well established that the consent of an owner is not necessary before a permit application may be lodged or a permit may be granted. The only requirement is that the owner be notified of the application. [14] In certain respects, it could be said that a public land manager has more rights than a normal land owner in respect of a permit application made by someone else concerning its land. At least a public land manager must give consent to the permit application being made.
Nevertheless, there is an underlying implication that consent will not be withheld unreasonably. When a public body exercising an administrative function makes a decision, that decision is never completely free from review. If no other form of review is available, it is always subject to judicial review of the reasonableness of the decision based on Wednesbury principles.[15] Thus the decision of the public land manager about whether or not to consent to an application for permit being made under clause 36.02-3 is not entirely immune from review, even if the council is right in terms that there is no review available under section 149.
However, having regard to the objectives of the planning framework established by the Planning and Environment Act 1987, I do not consider that this outcome was intended. I will address the purpose of the review opportunities offered by section 149 shortly.

Does the planning scheme specify that the matter must not be done without consent or approval of the specified body?

In my view, looking at the plain meaning of the words in clause 36.02-3, there is no doubt that the matter (i.e. an application for a permit by a person other than the relevant public land manager) requires the consent of the public land manager.
The council characterised this consent as being no more than an application requirement. It likened the written consent required by clause 36.02-3 to the requirement under clauses 54.01and 55.01 that certain permit applications for dwellings must be accompanied by a satisfactory neighbourhood and site description, and a design response.
I do not consider that this analogy is helpful. The provisions of clauses 54.01 and 55.01 both enable the responsible authority to require more information from the applicant under section 54 of the Act if the responsible authority decides that the neighbourhood and site description are not satisfactory. There is no reason why the same option would not apply to an unsatisfactory design response. There are comprehensive provisions under the Act relating to requests for further information under section 54 and, if the information is not provided, a permit application may lapse. There are review rights provided under the Act in respect of both the provision of further information[16] and lapse dates[17]. Likewise, where there are application requirements that must accompany permit applications in other circumstances[18], the opportunity always exists for the responsible authority to require further information under section 54 of the Act and for a permit applicant to review such requirement.
In my view, nothing turns on the fact that the heading to clause 36.02-3 characterises its provisions as an application requirement. It does not alter the fact that the matter must not be done without the consent of the specified body. The permit application cannot be made unless the public land manager consents to the application for permit being made. The need for this consent arises under the planning scheme for a matter being done under the planning scheme. In this case, the public land manager is the municipal council, which is a specified body. The decision of the specified body in relation to its consent to the permit application being made therefore comes within the terms of section 149(1) and is subject to review.

Purpose of review under section 149

The objectives of the planning framework established by the Act as set out in section 4(2) include:

(j) to provide an accessible process for just and timely review of decisions without unnecessary formality;

In my view, section 149 [19] establishes a broad and flexible mechanism for resolving disputes. The dispute resolution mechanism offered by section 149(1) cannot be extended beyond the ambit of its terms, but on the other hand, there is no justification for constraining its operation unnecessarily.
Deakin referred me to the comments of the High Court in Hillpalm Pty Ltd v Heaven's Door Pty Ltd[20]. The High Court supported the principle of amply construing the jurisdiction and powers conferred by statute on a superior court of record within its defined jurisdiction. I am mindful of the caution urged by the council that this was a decision involving New South Wales legislation and that the New South Wales Land and Environment Court is a different type of body to the Victorian Administrative Appeals Tribunal. Nevertheless, this does not detract from the general principal endorsed by the High Court in Hillpalm as expressed in Owners of "Shin Kobe Maru" v Empire Shipping Co Inc[21] that:

"It is quite inappropriate to read provisions conferring jurisdiction granting powers to a court by making implications or imposing limitations which are not found in the express words."

The council suggested that if I was to apply a purposive approach to the interpretation of section 149(1), I should equally consider what is, or may have been, the purpose of clause 36.02-3. Council acknowledged that this question is not easily answered by reference to provisions of the planning scheme, the Act or other extrinsic material[22]. Nevertheless, I was invited to speculate that its purpose is to make it clear that, where crown land is concerned, the public land manager has the final say as to what use or development can or cannot occur on the land. It is intended to ensure that applicants do not waste the time or the resources of the responsible authority (or, on appeal, the Tribunal) nor cause unnecessary concern or interest within the community, where the public land manager is not prepared to give its consent to the application.
With respect to the first proposition, there is no question that a public land manager will not have the final say as to what use or development can or cannot occur on the land that it manages by virtue of the consent it must give in its capacity as the committee of management under the CLRA.[23] Giving consent to the making of a permit application does not negate the need for the committee of management to give consent to the use or development itself. Therefore, the purpose of clause 36.02-3 cannot be to ensure that the public land manager has the final say. That is taken care of by way of a different process. On the other hand, the processes associated with a decision by the responsible authority about whether or not to grant a permit, which include notice and public participation in the decision making process, will have the effect of better informing the public land manager about the proposed use or development and better equip it to make its own decision under the CLRA.
With respect to the council's second proposition, that clause 36.02-3 is intended to ensure applicants do not waste the time or resources of the responsible authority, this may be a reason why consent should not be given to an application for permit being made, but I do not consider that it is the sole reason for a consent being required to a permit application under clause 36.02-3.
The only reason I can see why a veto should be created by the refusal or failure by the public land manager to consent to a permit application by a non public land manager, would need to be based on public policy. However, neither the council or the Minister for Environment and Climate Change explained what those public policy reasons might be.
The introduction of the Victoria Planning Provisions and the new format planning schemes in the late 1990's wrought significant change to the way in which public land was treated under the planning system. All public land was included in public land zones.[24] Like all other zones, certain uses do not require a permit (section 1 uses), others require a permit (section 2 uses) whilst others are prohibited (section 3 uses). Some section 1 and section 2 uses are subject to condition. Permits are also required for certain development. A common feature of all the public land zones is exemption from the need for most permits by the public land manager. By and large, the need for permits is imposed on use or development by non public land managers. All the public land zones have the same application requirement as clause 36.02-3 and the same set of decision guidelines[25], one of which is to consider:
- The comments of any public land manager or other relevant land manager having responsibility for the care or management of the land or adjacent land.
In bringing public land within the framework of the planning system, the rights of public land managers have been well protected by enabling them to use or develop land for which they are responsible without scrutiny in the form of planning permits. Their views about permits for use or development by non public land mangers must also be taken into consideration. The question is whether that lack of scrutiny or review should extend to the consent required to be given by the public land manager to a permit application being made by a non public land manager.
There is clearly a view, as expressed by the council and the Minister for Environment and Climate Change, that it should and that a public land manager should be able to veto a permit application by a non public land manager. But neither the council or the Minister have said why, in a public policy sense, such scrutiny should be avoided, especially in a context where all other consents required under a planning scheme are subject to review.
In my view, the introduction of the new format planning schemes changed the landscape regarding planning controls over public land whether or not all the implications of those changes were fully appreciated at the time.
In the light of my analysis of sections 148 and 149, I consider that I would only be speculating as to what the purpose of clause 36.02-3 might be if the intention was for it to operate as the kind of veto advocated by the council and the Minister for Environment and Climate Change. I do not consider that speculation is a good basis for decision making when the purpose set out in the Act for section 149 and the clear meaning of the provisions themselves lead to a different conclusion.
I am therefore not prepared to speculate as to the purpose of clause 36.02-3. Rather, I need to interpret it in the context of section 149(1). If there are good reasons why consent to the application for permit being made should not be given, then these should be canvassed in an open and transparent way. A permit applicant, which is not the public land manager, should be entitled to know the reasons why the public land manager refuses to give its consent to a permit application being made, and to challenge those reasons. The best means of achieving this is by way of review under section 149(1).
For its part, the public land manager needs to be able to separate out its reasons for refusing to consent to a permit application being made, and its reasons for opposing the use or development itself.

In my view, there is no warrant to construe section 149(1) of the Planning and Environment Act 1987 as applying more narrowly to the consent required under clause 36.02-3 than to any other provision of the planning scheme where a consent is required. For the reasons I have given, I consider that this consent falls squarely within the ambit of section 149(1) and that an effective veto would need to be included in the Act to avoid the ambit of review provided by section 149.
Therefore, I find that the written consent required by the Public Park and Recreation Zone in clause 36.02-3 is the kind of consent which may be the subject matter of a review under section 149 of the Planning and Environment Act 1987.

This hearing was to deal only with the questions of law relating to the Tribunal's jurisdiction. Having determined these, it is now necessary to arrange to hear the merits of the review.
I will therefore list the case for a hearing on this issue.

[1] The land is temporarily reserved as a site for Public Park and Recreation.

[2] Pursuant to section 60 Victorian Civil & Administrative Tribunal Act 1998. Tribunal order dated 16 October 2008.

[3] Letter from Department of Sustainability and Environment dated 27 October 2008

[5] The definition of "Council" in section 3 of the Local Government Act 1989 is:

Council means a municipal council (including the Council of the City of Melbourne and the Council of the City of Geelong) whether constituted before or after the commencement of this section;

[6] Under section 8A Planning and Environment Act 1987 a municipal council is a planning authority for any planning scheme in force in its municipal district. Under section 13 the municipal council is the responsible authority except in certain circumstances.

[7] Section 14(4) of the Crown Land (Reserves) Act 1978 provides that a committee of management appointed under the Act may consist of (b) a municipal council.

[8] Eco Resorts Australia Pty Ltd v Yarra Ranges SC [2004] VCAT 1190 at [9]

[12] Specifically, section 46P Planning and Environment Act 1987

[13] However, Justice Osborn did observe that:

[29] This said it seems eminently desirable that s.149 of the P&E Act be amended to enable the decision of a collecting agency pursuant to s.49P of the P&E Act to be reviewed by the Tribunal on the merit.

[14] See Michael Nguy v Whitehorse CC [2009] VCAT 75. See also section 48 Planning and Environment Act 1987

[15] See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. Wednesbury unreasonableness essentially means making a decision that is so unreasonable that no reasonable authority could have decided that way.

[18] For example, dwellings in the Farming Zone under clause 35.07-5

[19] The companion provisions of sections 149A and 149B

[20] [2004] HCA 59, in particular [47] and [83] - [85]

[21] (1994) 181 CLR 404 at 421. See other authorities also quoted in Hillpalm at [2004] HCA 59 footnote 16.

[22] This specific issue was not addressed in the Report of the Advisory Committee on the Victoria Planning Provisions (VPPs) (August 1997) or the Final Report - New Format Planning Schemes (April 1999).

[23] Subject of course to judicial review on the basis of Wednesbury unreasonableness

[24] Such as the Public Use Zone, the Public Park and Recreation Zone, and the Public Conservation and Resource Zone.

[25] For example the decision guidelines in the Public Park and Recreation Zone are:

Before deciding on an application to use or subdivide land, construct a building or construct or carry out works, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
The comments of any public land manager or other relevant land manager having responsibility for the care or management of the land or adjacent land.
Whether the development is appropriately located and designed, including in accordance with any relevant use, design or siting guidelines.

Land (Reserves) Act 1978

Environment Act 1987

Deakin University v Whitehorse CC

At a glance

Court

Decision date

Source

Judgment (82 paragraphs)

Deakin University v Whitehorse CC (includes Summary) (Red Dot) [2009] VCAT 134 (12 February 2009)

Parties

Legislation Cited (2)

Cases Cited (1)