(given orally at the hearing and subsequently revised)

1 An application has been made in respect of the subject land for a permit pursuant to the Frankston Planning Scheme for two purposes. The first purpose is to construct buildings and carry out associated works for 47 apartments and a basement car park. The second purpose is to reduce the car parking requirements of clause 52.06 of the scheme in respect of the development. The application was advertised by the responsible authority and a number of persons objected to the grant of a permit. Most of these objections raised issues concerning the adequacy of car parking as well as issues concerning the form of the proposed buildings and works.

2 The responsible authority failed to grant a permit and the permit applicant has applied to the tribunal to review such failure. The permit applicant now seeks a declaration or other relief to make it clear to the objectors that their rights in contesting the application for review are confined to the car parking question and do not extend to the form of the buildings and works. This application is based upon the contention that the rights of third parties are different in relation to the two parts of the application.

3 It is common ground that third parties have rights in relation to the car parking question. However there is a dispute as to whether third parties have a right to object or contest the proceeding in relation to the application for buildings and works. This part of the application is subject to the requirements of the Business 5 Zone. Under that zone the use of the proposed land for dwellings does not require a permit. However a permit is required under clause 34.05-4 for the construction of a building or the construction or carrying out of works.

4 Clause 34.05-4 provides that certain applications are exempt from notice and review, as follows:

An application is exempt from the notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act. This exemption does not apply to an application for a building or works within 30 metres of land (not a road) which is in a residential zone, land used for a hospital or school or land in a Public Acquisition Overlay to be acquired for a hospital or school.

5 The proposed development is described in the permit application by reference to various plans. These plans show the site consist of an allotment of 3,405 square metres. This lot is more than 30 metres from any residential zone, save for a small sliver (having an area of about 30 square metres) at the south-west corner. The application plans do not show any proposed buildings on this sliver; nor do the plans show any change to the land form on the sliver. There is a suggestion in a landscape plan that it may be proposed to plant a tree or trees on that sliver of land, however in my opinion this is not material.

6 The question which arises for consideration is whether the present application is an exception to the exemption from notification which would otherwise apply by reason of the fact that part of the site is within 30 metres of land in a residential zone. Mr Sherwell, who appeared for the responsible authority, essentially submitted that the exception to the exemption operates when land, the subject of an application, is within 30 metres of land which is in a residential zone. By contrast Mr Bisset, who appeared for the permit applicant, submitted that the exception to the exemption only operates if a building or works for which a permit is sought is or are within 30 metres of land within a residential zone.

7 In my opinion the submission advanced by Mr Bisset is to be preferred. Looking at the words in isolation, the expression "within 30 metres of land (not a road) which is in a residential zone" attaches to the words "a building or works" and not the land the subject of the application. This is made clearer when one contrasts this exemption provision with the exemption provision in clause 34.05-3 of the scheme which deals with subdivision. This provides:

An application is exempt from the notice requirement of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act. This exemption does not apply to land within 30 metres of land (not a road) which is in a residential zone, land used for a hospital or school or land in a Public Acquisition Overlay to be acquired for a hospital or school. (My emphasis)

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.