The contrast between the two provisions is significant. In the subdivision provision the focus is on "land" within 30 metres of land in a residential zone; whereas, in the buildings and works provision, the focus is on "a building or works" within 30 metres of land which is in a residential zone.
8 Mr Sherwell argued that the words "an application for a building or works" should be taken to embrace the site, or the planning unit, and thus require a test that involves a measurement between (in this case) the title boundary and the closest residential zone. I cannot agree. First, this would suggest that the distance be measured from "the application", which is an unlikely concept. Second, it is likely to produce uncertainty by promoting arguments about the scope of the planning unit.
9 I have previously considered this question in Riverland Retreat Pty Ltd v Corangamite Shire Council P906/2003, 9 September 2003 and in Perorad Care Pty Ltd v Frankston City Council [2004] VCAT 2272. In the latter case I said I tended to agree with the argument that the 30 metre test applied to the building or works for which a permit is sought, rather than the land the subject of the application. Having heard detailed argument and having further considered the matter, I now confirm those tentative views. My approach is also consistent with that taken by Member Rickards in Nestle Export v Warrnambool City Council [2003] VCAT 1389.
10 Ultimately I am influenced by what I see as the purpose of the provision, which is that certain development is made exempt from notification to promote development in the zone, by minimising the constraints that arise when third parties have a right to participate in the process. This purpose is subject to a caveat. In the case of development that is within 30 metres of sensitive land, third parties have rights and are not to be excluded from the process. It is the activity which potentially has an impact upon the sensitive uses, not the fact that the land upon which the activity will take place is within 30 metres. This can be illustrated by using an example of land having an area of, say, 50 hectares. It would be an unlikely result if the development of part of such an allotment would be not exempt from third party notice requirements if that development was so distant from the sensitive uses as to be unlikely to cause detriment to the occupiers of such land.
11 When parts of an application are exempt and other parts are not, a responsible authority giving notice of the application should make it abundantly clear to potential objectors which parts are exempt from third party rights and which parts are not. Many planning scheme provisions can make this a complex exercise. But there are too many cases that come before the tribunal where the objectors are misled as to the extent of their rights.