1. The permit application seeks approval for a single shed to be erected on the land.
2. Under the planning scheme, the land is:
   1. included in the Rural Conservation Zone ('RCZ');
   2. affected by the Environmental Significance Overlay ('ESO'); and
   3. affected by the Bushfire Management Overlay ('BMO').

1. Clause 35.06-5 of the planning scheme provides that a permit is required to construct or carry out buildings or works associated with a use in Section 2 of clause 35.06-1 except in the circumstances specified in that clause. The parties agree that the new shed will be used in association with a Section 2 use under clause 35.06-1 of the planning scheme and therefore agree that a permit for the new shed is required under clause 35.06-5 of the planning scheme.
2. Clause 35.06-5 also provides for the making of 'VicSmart applications' in certain circumstances, namely:

1. Clause 42.01 of the planning scheme applies to land affected by the ESO.
2. A permit is required under clause 42.01-2 of the planning scheme to construct a building except where a schedule to the overlay specifically states that a permit is not required.[1]
3. Schedule 1 to the ESO applies to the land. Clause 3.0 of Schedule 1 sets out further circumstances in which a permit under clause 42.01-2 is not required.
4. The parties agree that a permit is required under clause 42.01-2.
5. Clause 42.01-2 also sets out the circumstances in which a VicSmart application may be made under that clause as follows:

1. Clause 44.06-2 provides that a permit is required to construct a building or construct or carry out works associated with a number of specified uses including 'Accommodation'.
2. The site plan accompanying the permit application shows that there is an existing main residence on the subject land.
3. Clause 44.06-2 also specifies exceptions to the need to obtain a permit under that clause. On the facts none of those exceptions apply because:
   • There is no evidence before the Tribunal that the proposed shed is not consistent with an agreement under s 173 of the PE Act prepared in accordance with clause 44.06-5;
   • The proposed shed is not an alteration or extension to an existing building;
   • The proposed shed is not an alteration to an existing building used for a dwelling or a second dwelling;
   • The proposed shed has a floor area of greater than 100 square metres;[2]
   • The proposed shed is not associated with timber production;
   • Schedule 1 to clause 44.06 does not specifically state that a permit is not required for this building.

1. Clause 66.03 of the planning scheme identifies the types of permit applications that must be referred to a referral authority.
2. Referral is not required because of the permissions required under clauses 35.06-5 or 42.01-2.
3. Where a permit is required under clause 44.06-2 under the BMO, referral of the permit application is required to the relevant fire authority as a recommending referral authority except where the following requirements of clause 66.03 are met:
   • The outbuilding is ancillary to a dwelling,
   • 10 metres of defendable space is provided around the outbuilding in accordance with the vegetation management requirements at Table 6 of Clause 53.02,
   • The canopy of each tree within the defendable space is separated by at least 2 metres, and
   • Where the outbuilding is located less than 10 metres from a dwelling the outbuilding construction requirements at Table 7 of Clause 53.02 are met.
4. The applicant submitted that referral of the permit application is not required under clause 66.03 because all of the requirements set out above are satisfied.

If an overlay is shown on the planning scheme map, the provisions of the overlay apply in addition to the provisions of the zone and any other provision of this scheme.

Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the Municipal Planning Strategy, the Planning Policy Framework, the purpose and decision guidelines of the overlay and any of the other decision guidelines in Clause 65.

Operation of VicSmart Applications and Process

1. To the extent relevant to the matters under consideration, clause 71.06-2 provides:

VicSmart process

Despite any other provision of this planning scheme:

• A VicSmart application is exempt from the requirements of the Act and planning scheme specified in this clause.
• The responsible authority must assess a VicSmart application in accordance with the requirements of this clause.

If there is any inconsistency between the requirements of this clause and another provision of this planning scheme, this clause prevails.

Referral requirements

If an application requires referral to a referral authority under clause 66:

• The application must have been considered by the referral authority within the past 3 months of the application being made to the responsible authority.
• The referral authority must have stated in writing that it does not object to the grant of the permit for the proposal.

Information requirements

A VicSmart application must be accompanied by the information requirements specified for the relevant class of application. The information requirements of the relevant zone, overlay or particular provision, other than those specified for VicSmart applications, do not apply

1. The applicant's submission is summarised as follows:
   • Clause 35.06.5 enables the use of the VicSmart application process for the proposed shed and works;
   • Clause 35.06-5 is the 'primary control';
   • There is no need for the BMO to refer back to the VicSmart application process because the 'necessary entry point' for that process already exists through clause 35.06-5.
   • The requirement for a permit under the BMO is not the 'primary trigger' for the application - it is a 'secondary control' and it does not nullify or override the VicSmart 'eligibility' provided by clause 35.06-5.
   • The VicSmart process is structured to account for the presence of overlays, such as the BMO and specifically incorporates these overlays into its considerations through the process of referrals. It is the referral process that ensures that the relevant matters under an overlay are considered in a VicSmart application process.
   • Where there is no other provision pointing to VicSmart, an overlay must include a VicSmart provision if a streamlined process is to be available and the overlay becomes the primary control.
2. The applicant submitted that the above reasoning is consistent with the requirements of clause 71.06-2 that takes precedence over any other provision of the planning scheme where there is an inconsistency.
3. The applicant also submitted that the responsible authority's interpretation and application of clause 71.06-2 would lead to an absurd result because any land affected by the BMO would automatically be excluded from the VicSmart application process and would render the opportunity under clause 35.06-5 to lodge a VicSmart application meaningless across vast areas of Nillumbik because the BMO affects most rural and semi-rural properties in the shire.

1. The responsible authority submitted that because the requirement for a permit for the construction of buildings and works involved in the proposed development under the BMO is not expressly identified in clause 44.06-2 as a class of VicSmart application, the permit application cannot be processed as a VicSmart application.

1. The Victorian Court of Appeal in Sweetvale Pty Ltd & Anor v Victorian Civil and Administrative Tribunal & Ors [2003] VSCA 83, confirmed that s 47(1) of the PE Act plainly and clearly contemplates that an applicant for a permit may lodge a single application for a permit for use or development for a combination of use(s) or development(s). Properly characterized, the permit application in this matter is an application for three separate permits under the planning scheme; separately under clause 35.06.5, clause 42.01-2 and clause 44.06-2.
2. An application that seeks a permit under more than one clause of a planning scheme is commonly referred to as an omnibus application even though that expression does not appear anywhere in the PE Act or in planning schemes.
3. Contrary to the applicant's submission, there is nothing in either the PE Act or the planning scheme that elevates the requirements of a zone to the 'primary control' applicable to use or development of land. To the contrary, clause 71.04 of the planning scheme makes it clear that the provisions of an overlay apply in addition to the provisions of the applicable zone and any other provision of the scheme. No default hierarchy of provisions is set out in clause 71 which is the suite of clauses that set out the operational provisions of the planning scheme.
4. I reject the applicant's submission that the structure of the planning scheme is such that in all cases the provisions of the zone are the 'primary control' applicable to the use or development of land and the requirements of any applicable overlay are 'secondary' controls.
5. As confirmed by the Victorian Court of Appeal in Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27[3], a single permit for an overall development proposal cannot be granted unless the responsible authority considers each permit requirement that applies to the proposal and would grant a permit in relation to each such requirement.
6. As stated above, here three distinct and separate permissions are required for the shed proposal. Each must be considered against the requirements of the control under which the obligation to obtain a permit has arisen.
7. Even if the applicant is correct, and the requirement to obtain a permit under clause 44.06-2 does not require referral to the relevant fire authority because the conditions of clause 66.03 are met, this exemption from referral does not obviate the need for the applicant to obtain a permit under clause 44.06-2. A permit under clause 44.06-2 must still be obtained from the responsible authority who is under no obligation to refer the permit application to the relevant fire authority.
8. In the context where a single permit application can be made for multiple permissions to enable a proposal and the decision maker must be satisfied that each and every one of the permissions should be granted before issuing an overall permit, it is no surprise that clause 71.06 expressly requires that certain prerequisites must be met in order for an application to be classed, and processed as, a VicSmart application.
9. The requirement that 'a permit is required only under those provisions of this planning scheme that are specified as a VicSmart application, and not under any other provision of this planning scheme' recognises the common occurrence that a single overall permit application may in fact require assessment against more than one permit requirement, as is the case on present facts.
10. Given that the requirement for a permit under clause 44.06-2 is not identified as a class of VicSmart application, it simply cannot be concluded the permit application requires a permit only under those provisions of the planning scheme that are specified as a VicSmart application.
11. I also reject the applicant's submission that this interpretation leads to an absurd result. I accept that the decision not to identify an application for a permit under clause 44.06-2 as a VicSmart application may result in an omnibus permit application for development in certain locations within Victoria will be unable to meet the requirements of clause 71.06 but that is the result of the policy decision made at a strategic planning level to exclude applications under clause 44.06-2 from the VicSmart process in order for such applications to undergo the 'usual' assessment process provided for under the PE Act and the planning scheme.
12. I also reject that my interpretation results in any 'inconsistency' referred to in clause 71.06-2. Clause 71.06-2 is concerned with identifying the provisions of the PE Act and the planning scheme that do not apply to the assessment of a VicSmart application. It is not concerned with identifying the class of applications that are VicSmart applications.

1. In conclusion, the permit application is not a VicSmart application and as a result the application for a declaration in the terms sought by the applicant is refused. However, I am satisfied that for the benefit of both parties I should declare that Permit Application No. 175/2025/05P is not a VicSmart Application.
2. As stated earlier in these reasons, proceeding P294/2025 is a related proceeding before the Tribunal commenced by the applicant under s 79 of the PE Act. Considering the declaration made in this proceeding, the parties should give consideration to implications for the future conduct of proceeding P294/2025 and inform the Tribunal as soon as possible as to the future conduct of that proceeding.

[1] Clause 42.01-3 contains a table of exemptions that sets out the circumstances in which a permit under clause 42.01-3 is not required.

[2] The permit application plans show that the proposed shed has dimensions of 12 metres in length and 9.6 metres in width resulting in a floor area of 115.2 square metres.