Public Park and Recreation Zone; Environmental Significance Overlay - Schedule 25 Port Phillip Coastal Area.

1. This matter concerns a boatshed[1] on the Dromana foreshore. Boatsheds and bathing boxes enjoy a special place in the Victorian beachside community as privately accessed structures on public beaches.
2. The boatshed the subject of this application is licensed to Sharon Godino ('applicant') to enjoy, subject to a range of requirements and constraints broadly aimed at ensuring that the use of the boatshed does not impede other people's enjoyment of the beach as well as complying with requirements for public liability insurance, planning and other restrictions.
3. The applicant has a lease allowing her to occupy boatshed number 45 at Dromana on the Mornington Peninsula ('boatshed 45').
4. Boatshed45 has the benefit of Permit P20/20599 issued on 22 February 2021 ('permit') which allows:

Develop additions and alterations to existing boatshed generally involving:

1. Alterations to roof
2. Addition of removable steps

in accordance with the endorsed plans[2].

1. The permit is subject to condition 9 which states[3]:

The removable timber steps are not to be permanently affixed to the boatshed and are to be stored within the boatshed whenever they are not in use, including overnight.

1. The applicant has lodged an application with the Mornington Peninsula Shire Council ('Council') to amend the permit to remove this requirement to take the steps in and out.[4]
2. The Council refused the application on the following grounds:
   1. The public land manager has refused to consent to the use/development, with the written consent being required under the Public Park and Recreation Zone, Clause 36.02-3.
   2. A delegate of the Minister has refused to consent to the proposed use/development per Section 70(1)(b) of the Marine and Coastal Act 2018 ('Vic').
3. I am required to consider whether the Tribunal has jurisdiction to review the application and whether to grant certain amendments to the form of the application to the Council ('Council application') in the first instance and to the Tribunal seeking review of the Council's decision ('Tribunal application').
4. I have found that in view of the complex and interrelated provisions regulating boatshed 45, the failure to obtain the consent of the Minister to the proposed development pursuant to section 70(1)(b) of the Marine and Coastal Act 2018 ('Vic') ('Marine and Coastal Act') precludes the Tribunal from reviewing the application in its present form.
5. In addition, the number of amendments and alterations to the application sought and the permit applicant's recent request to amend what is sought in the application to the Council combine to indicate that this is not an appropriate application to exercise the Tribunal's discretion to amend the Council application and the Tribunal application as sought on behalf of the applicant.
6. I have summarily dismissed this application because it is misconceived as the Tribunal has no jurisdiction to grant it.

PURPOSES OF THE PRACTICE DAY HEARING AND PROCEDURAL MATTER?

1. The purposes of the practice day hearing are as follows:
   • to ascertain the relevant section of the Planning and Environment Act 1987 (Vic) under which the application is sought to be made in circumstances where:
     • the application has been filed under section 80(1) of the Planning and Environment Act 1987 (Vic) to review a condition in permit P20/20599 issued on 22 February 2021; and
     • the application was accompanied by a Refusal to Grant an Amendment to Permit P20/0599.01 issued on 13 November 2024.
   • to consider the consequences of council's grounds of refusal including whether any application can progress in the absence of the consent of:

a) the public land manager as required by Clause 36.02-3 (Public Park and Recreation Zone) of the Mornington Peninsula planning scheme; or > > b) a delegate of the Minister pursuant to section 70(1)(b) of the Marine and Coastal Act 2018 (Vic).

• to consider whether the application should be struck out or summarily dismissed; and
  • to consider the future conduct of the proceeding.

2. In response to the Tribunal's orders the Council provided pre-filed submissions which addressed the purposes set out above.
3. No pre-filed written submissions were received from the applicant in response to the Tribunal's orders prior to the practice day hearing.
4. Following the practice day hearing I issued orders allowing further submissions from both parties. I have found both the applicant's and the responsible authority's submissions helpful in understanding the basis of the application. I have taken all the material into account notwithstanding some delay in provision of material by the parties.

1. The application to amend the permit was made to the Council. The Council referred that application to the Department of Energy, Environment and Climate Action ('DEECA') which responded by letter dated 26 September 2024, which stated, in part:

Thank you for referring the above application to the Department of Energy, Environment and Climate Action (DEECA) pursuant to the Planning and Environment Act 1987. Pursuant to 68(3) of the Marine and Coastal Act 2018, the application is also deemed to be an application for consent to the use and development of marine and coastal Crown land. The application was received on 16 July 2024.

1. For reasons set out in that correspondence (which essentially relate to an absence of public benefit due to the boatshed providing only private benefit to the applicant) the letter concludes:

Pursuant to section 70(1)(b) of the Marine and Coastal Act 2018, and as delegated by the Minister, I refuse to consent to the proposed use and development based on the reasons given above.

DEECA recommends alternative options be considered such as using alternative (lighter e.g. moulded plastic) materials, reducing the length of the steps (currently at 2400mm in length); or, an engineering solution to assist to raise and lower the temporary steps.

Please be advised that pursuant to section 61(3)(a) of the Planning and Environment Act 1987, a planning permit cannot be granted without first obtaining the consent of the Minister under the Marine and Coastal Act 2018.

1. The Council also provided evidence that the Dromana Foreshore committee did not consent to the application.
2. It is the absence of consent by the public land manager and the Minister pursuant to section 70(1)(b) of the Marine and Coastal Act which are the reasons the Council has refused the application.
3. The applicant has sought review of the Council's decision to refuse the application under section 80(1) of the Planning and Environment Act 1987 (Vic) ('PE Act') which provides an opportunity to review the conditions a responsible authority seeks to impose on a permit. The Council says this is not the correct section to make an application to review its decision.
4. The permit applicant in its reply to the Council's submission[5]:

(a) indicated that the applicant wishes to amend the application to change the terms of the amendments sought to the permit[6];

(b) requests that the application be considered in accordance with s149 PE Act relying on the Tribunal's decision in Deakin University v Whitehorse CC[7];

(c) sets out in detail why the applicant considers the position and refusal to consent by the Department of Energy Environment and Climate Change on behalf of the Minister is unreasonable and should be reviewed.

1. The questions I am required to consider are:
   1. Is the application to the Tribunal made under the correct section of the PE Act?
   2. What is the impact of the absence of consent by the public land manager on this application?
   3. What is the impact of the absence of consent by the Minister under section 70(1)(b) of the Marine and Coastal Act on this application?
2. I have considered each of these questions in turn.

Is the application made under the correct section of the PE Act?

1. The applicant has made her application to the Tribunal under section 80(1) of the PE Act which states:

1. Application for review of the conditions on a permit.

(1) An applicant for a permit may apply to the Tribunal for review of any condition in a permit which the responsible authority has issued or decided to grant to the person.

2. The Council submits that this is not the correct section under which to make the application. I agree with that submission because this section provides an opportunity to apply to the Tribunal to review conditions imposed or proposed to be imposed on a permit when it is issued.
3. In this case, the applicant has sought an amendment to the permit comprising an amendment to an existing condition of the permit under section 72 of the PE Act. The Council has refused that amendment.
4. The correct section under which an application should be made is section 77 of the PE Act which concerns an application for refusal to amend a permit[8].
5. The Council is correct that this application cannot be considered under section 80(1) of the PE Act and should have been filed under section 77 of the PE Act. It says that it would not oppose an amendment to the Tribunal application so that it is made under section 77 of the PE Act except that it would be futile because the Tribunal could not grant it due to the absence of consent by the Minister.
6. Had I been formally asked to make this amendment; I would have declined to exercise my discretion to do so because I do not consider that this is an appropriate case in which to exercise that discretion. That is because there have been multiple failures to follow the processes required for consideration of this application such that any further application should be made afresh.
7. In addition, the applicant has now indicated that it wishes to amend what is sought by the application.
8. In this circumstance, it would the preferable for any further application to be commenced for the permission now sought rather than making multiple amendments to the current proceeding even if that were open to the Tribunal to grant the application - which I, as I explain below, I have found that it is not.

What is the impact of the absence of consent by the public land manager on this application?

1. Consent to the making of an application by a person other than the relevant public land manager is required by clause 36.02-3 - Public Park and Recreation Zone of the Scheme which specifies:

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.

1. The application was not accompanied by the consent of the public land manager as required by this clause.
2. The Council says in its pre-filed submissions that the Dromana Foreshore Committee is the relevant Crown Land Committee of Management for the subject land as established under the Crown Land (Reserves) Act 1978 (Vic).
3. If consent was required from the Dromana Foreshore Committee it is clear that this would not be readily forthcoming because that body advised the Council by email on 13 August 2024 that it does not support the amendment application. Further documentation filed by the applicant also suggests that that consent would not be forthcoming from the Dromana Foreshore Committee.
4. That said, the Council on reflection submits that it is not the Dromana Foreshore Committee which is the relevant Crown Land Manager.
5. In an email received by the Tribunal on 21 March 2025, the Council provided copies of its records confirming that boatshed 45 is located on Crown Land and said:

Please find attached the decision of the Tribunal in Deakin University v Whitehorse CC (Red Dot) [2009] VCAT 134 which I referred to in oral submissions this morning. Paragraph 17 of the decision provides clarity on the identity of public land managers in circumstances where there is a committee of management (i.e. that committees of management who are not municipal council or Parks Victoria are not the public land manager). Consistent with my submissions, I do not think anything turns on this in the proceeding, but for the purpose of clarity my submission would be that the Dromana Foreshore Committee is not the public land manager in this instance.

1. I agree. The term 'public land manager' is defined in clause 73.01 of the Scheme 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, the Great Ocean Road Coast and Parks Authority or a municipal council, it means the Minister administering that Act and does not include the committee of management.[9]

1. I am satisfied based on the information provided to me in the form of the licence of the boatshed and the Council's property records that the land on which the boatshed 45 sits is Crown Land.
2. I am also satisfied that the Crown land is land managed or controlled by a committee of management being the Dromana Foreshore Committee but that it is not the public land manager for the purpose of providing consent under the Scheme.
3. It follows from the definition above that the 'public land manager' is the Minister administering the Act by which the land comes to be managed by the committee of management. In this case, the evidence I have allows me to infer that this is the Minister administering the Marine and Coastal Act. I infer this from:
   1. the DEECA letter;
4. the terms of the licence agreement for boatshed 45; and
   1. the letter from the Dromana foreshore association.
5. The Council submits that '(a) DEECA, as delegate for the Minister responsible for administering the Marine and Coastal Act acts as public land manager (b) that [Council] accepted, assessed and determined the application without receiving consent from the public land manager required under Clause 36.02-3[10]'.
6. What is apparent is that the application was not accompanied by the consent of the public land manager and that there has been no consent from the Minister.
7. The applicant seeks to amend the application based on the reasoning in the Tribunal's decision in Deakin University v Whitehorse CC (Red Dot)[11] in which DP Gibson concluded that the Tribunal has jurisdiction to review the decision of a public land manager to withhold consent to an application. The applicant seeks to amend the application to an application under section 149 of the PE Act the provision discussed in that case.
8. Leaving to one side the procedural issues associated with this request made in submissions, I do not consider it to be appropriate to allow that request in these circumstances because the application cannot be granted in the absence of the Minister's consent under the Marine and Coastal Act.

What is the impact of the absence of consent by the Minister under section 70(1)(b) of the Marine and Coastal Act?

1. Additional requirements apply under the Scheme and the Act to land to which the Marine and Coastal Act[12] applies.
2. Pursuant to section 61(3) of the PE Act:

The responsible authority -

(a) must not decide to grant a permit to use or develop marine and coastal Crown land within the meaning of the Marine and Coastal Act 2018 unless the Minister administering the Act has consented under the Act to the use and 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 of development.

1. DEECA advised the Council on 6 September 2024 in the DEECA letter that it refused to consent to the amendment application under section 70(1)(b) of the Marine and Coastal Act. This means that the Council could not grant the amendment sought.
2. The PE Act also makes particular provision for applications for review of permit applications where approval is also required under the Marine and Coastal Act and that approval has been refused or deemed to be refused.
3. Section 82AA of the PE Act states:

Despite anything to the contrary in section 77 or 79, an applicant for a permit for the use or development of marine and coastal Crown land within the meaning of the Marine and Coastal Act 2018, has no right to apply to the Tribunal for review of -

(a) a decision by a responsible authority to refuse to grant the permit, if the Minister administering that Act has refused or is deemed to have refused to consent to that use or development under that Act

1. The terms of this provision are clear. Whether there is a refusal to consent from the Minister there is no right of review to this Tribunal.
2. The terms of the correspondence from the Minister are clear. Consent for the development sought has been refused.
3. The applicant submits, in essence, that section 82AA of the PE Act does not apply to the application because there is no application for a new use or development of the marine and coastal Crown land but rather the applicant seeks to amend a condition on which the use and development is already occurring.
4. I do not consider that the distinction sought to be made avoids the operation of section 82AA of the PE Act.
5. The applicant has a permit for the development of boatshed 45. The permit allows:

Develop additions and alterations to existing boatshed generally involving:

Additions to roof

Addition of removable steps

in accordance with the endorsed plans.

1. It is the condition relating to the removable steps that is sought to be amended. The introduction of a fixed element making a permanent change to the boatshed falls within the definition of 'development' under the PE Act which is:

development includes -

(a) the construction or exterior alteration or exterior decoration of a building; and

(b) the demolition or removal of a building or works; and

(c) the construction or carrying out of works; and

(d) the subdivision or consolidation of land, including buildings or airspace; and

(e) the placing or relocation of a building or works on land; and

(f) the construction or putting up for display of signs or hoardings;

1. Consistency between the use of the term 'development' is achieved by the definition of that term in the Marine and Coastal Act as follows.

"development" has the same meaning as in the Planning and Environment Act 1987;

1. It follows that I do not accept that the term 'development' does not encompass the change to the development sought to be permitted by amendment to an existing permit.
2. Secondly, the application for amendment of a permit under section 72 PE Act is governed by a process set out in Division 1A of the PE Act which includes section 76C of the PE Act which states:

Division 2 (with any necessary changes) applies to an application for an amendment of a permit and an amendment of a permit as if -

(a) a reference to an application for a permit were a reference to an application for the amendment; and

(b) a reference to the grant of a permit were a reference to the grant of the amendment; and

(c) a reference to the issue of a permit were a reference to the issue of an amended permit.

1. Applying that section to the section 82AA PE Act (which falls within Division 2) in accordance with the requirements of section 76C PE Act, produces the result that an application for amendment of an application is also subject to notion that there is no right of review in respect of refusal to amend the permit.
2. It follows that the Tribunal does not have jurisdiction to review this application even if it were made under section 77 of the PE Act.
3. For completeness, I have considered whether the applicant could review this decision of the Minister's under section 149 of the PE Act consistent with the amendment to the application foreshadowed in submissions.
4. This section allows a review where there is a requirement that something be done to the satisfaction of a specified body which is contained within a planning scheme or a permit. It does not extend to allowing a review of a requirement contained within an Act.
5. Where the requirement of section 82AA PE Act is not met, I do not consider that the application under section 149 of the PE Act foreshadowed on behalf of the applicant would assist her.

1. There are a number of defects in the current application:
   • the failure to make the application to the Tribunal under the correct section of the PE Act;
   • the failure to obtain the consent of the public land manager as required by clause 36.02-3 of the Scheme;
   • the failure to obtain the Minister's consent which requires the matter to be refused and precludes an application for review being considered by the Tribunal.
2. For the reasons given above, the decision of the responsible authority is struck out as misconceived under section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

[1] The licenced structure is variously referred to as a bathing box, powered boat shed or boatshed/bathing box.

[2] The endorsed plans show a notation 'removable steps treated pine'.

[3] The applicant's submissions seek to amend the application to include an amendment to condition 13 which is of similar effect to condition 9.

[4] The applicant's submissions suggest that there may be a more complex background to this application involving retrospective approval of an existing structure but that is not material to my consideration of this matter. She also submits that the current requirement is unreasonable in view of her physical ability.

[5] In addition to matters addressed in relation to the relevant issue discussed below and matters not material to this decision.

[6] To retain part of condition 13 so that it reads as follows:

I note that conditions 9 and 13 of the permit have similar effect, condition 13 being located under a hearing 'Department of Environment Land, Water and Planning Condition. The Council appears to have confined its consideration to condition 9, but the applicant now also seeks an amendment to condition 13.

[7] [2009] VCAT 134.

[9] This is the point made at [17] of Deakin University v Whitehorse CC (Red Dot) [2009] VCAT 134

[10] In the context of distinguishing the decision in Deakin University v Whitehorse City Council [2009] VCAT 134.

[11] [2009] VCAT 134

[12] No party has suggested that boatshed 45 is not on 'coastal crown land' and subject to the Marine and Coastal Act which is consistent with the licencing arrangements for the boatshed 45.