Hill v Campaspe SC [2009] VCAT 286

Hill v Campaspe SC [2009] VCAT 286 | Case summary | Zoe

The applicants made application pursuant to s 149A of the Planning and Environment Act 1987.
The applicants apparently seek to undertake works at 286Anstruther Street, Echuca involving the digging of a trench to a depth of 500mm and a width of 100mm to facilitate the installation of a 30mm polypropylene pipe across the eastern boundary of their property to connect to garden taps on the property. The subject land is zoned part Residential 1 and part Urban Floodway Zone, and is affected by a Land Subject to Inundation Overlay (LSIO).
The applicants seek declarations essentially as follows:
- a declaration that the north Central Catchment Management Authority's refusal to give its approval or consent to the works is ultra vires and unreasonable; and
- a declaration that the proposed works do not trigger the need for the applicants to obtain a planning permit from the responsible authority.
After hearing from the parties, I gave an oral decision that the application for declaration should be struck out as misconceived, and at the very least premature.
The applicants have never made any application for a planning permit for the works. The referral authority provisions triggered by the LSIO have therefore never been triggered, and there has been no formal referral of any planning permit application to the Catchment Management Authority in order to ascertain whether it supports or opposes a planning permit being granted. The Catchment Management Authority has therefore not yet been put in a formal position, for the purposes of the Planning and Environment Act 1987, whereby it has to consider and formally respond in relation to the planning permit application. There is therefore no basis to challenge the refusal of its consent as being ultra vires or unreasonable, as the applicants allege. The application is, at best, premature.
Although the applicants can seek to informally ascertain the position of the Catchment Management Authority in advance of making a planning permit application, in order to streamline the referral authority process that follows, this "informal" process does not trigger any rights of review, or the ability to seek a declaration, before this Tribunal.
In relation to the second declaration sought by the applicants, the applicants failed to satisfy me that the works proposed are not "works" (as defined in the Planning and Environment Act 1987) for which a planning permit is required under the Campaspe Planning Scheme. The applicants were unable to point me to any exemption under the Zone, Overlay, particular provisions, or Clause 62, which suggests that works of this nature are exempt.
The applicants called Mr Peter McKinnon (under a summons to appear) to give evidence. Mr McKinnon is a town planner formerly employed by Campaspe Shire Council, and now working with another council. Mr Hill attempted to question Mr McKinnon on whether the proposal would require a permit. Despite an objection from Mr Gilchrist on behalf of the responsible authority, indicating quite correctly that this was a question of law, I allowed Mr Hill to ask some questions of Mr McKinnon in an endeavour to get to the bottom of what might be the underlying dispute between the parties. However, Mr McKinnon was unable to materially assist the Tribunal. I consider that the subpoena of Mr McKinnon by the applicants to be unnecessary and inappropriate.
I agree with the submission on behalf of the responsible authority that "works", as defined in Section 3 of the Planning and Environment Act 1987, includes any change to the natural or existing condition or topography of the land including the removal of topsoil. In this regard, the digging of trenches and the laying of pipes clearly constitutes works, as it changes the natural or existing condition of the land. The fact that the land may be largely restored to its original condition, such that the topography does not change in the long term, does not mean that the initial works do not constitute "works" (as defined).
I am also satisfied, on the basis of the submission made by the responsible authority, that the works proposed the applicants in this case do not fall within one of the exemptions in the planning scheme. In particular, whilst these sorts of works would commonly not require a planning permit if undertaken as domestic services normal to or ancillary to a dwelling, in this case there is no dwelling on the property, and is unlikely to be one given the existence of a restrictive covenant.
On the basis of the above, the applicants have failed to satisfy me that either of the declarations can or should be made. The applications are dismissed as misconceived.
On behalf of the responsible authority, Mr Gilchrist sought costs. Although this is a border-line case where costs might be awarded, I declined in this instance to award costs. Whilst the application is misconceived, and perhaps misguided, I am satisfied that the applicants made the application in good faith in circumstances where they are self-represented, and perhaps based on a lack of proper understanding of the planning framework. They therefore deserve the benefit of the doubt in this instance. However, I clearly indicated to Mr Hill at the hearing that, if there was a further misconceived application of a similar nature, the Tribunal might well consider an award of costs against him in the future.

At a glance

Court

Decision date

Source

Judgment (4 paragraphs)

Hill v Campaspe SC [2009] VCAT 286 (24 February 2009)

Parties